Send Them Donkeys to the Glue Factory

They're done:

FOR MANY YEARS DEMOCRATS dominated that game. But when their political agenda lost in the legislature, as it sometimes did, they turned to the courts -- often rightly, as with civil rights, but not always, as with abortion. Beginning in the 1960s, however, that combination of political and judicial "activism" gave rise to the conservative makeover of the Republican Party. Part of the Republican reaction, the libertarian part, stood against the Democrats' big-government agenda as such. But another part, the conservative part, largely accepted the New Deal's democratization of the Constitution, especially as the party started to gain politically. This part focused more narrowly on "activist" courts as impediments to a conservative political agenda.

That often uneasy Republican alliance eventually came to dominate politically, of course, first with Ronald Reagan, then with the Republican takeover of Congress in 1994. As it did, Democrats were increasingly unable to achieve their agenda through the political branches, so they came to rely more and more on the courts. And that's why, especially after George W. Bush was elected in 2000 -- facilitated by the Supreme Court, ironically -- the battle for the courts has become so intense. Democrats have nowhere else to go.

Not surprisingly, then, they're fighting to the death. Barely a month after the Court decided Bush v. Gore, for example, 554 liberal professors from 120 law schools condemned the Court in a full-page ad in the New York Times. Many urged Democratic senators not to fill any Supreme Court vacancy, should one occur, until after the 2004 elections. Then, when control of the Senate switched to the Democrats after Jim Jeffords became an Independent in May 2001, the Democratic stall on appellate court nominees began. Of the 11 nominees Bush put forward that month (2 were Democratic holdovers), 8 still hadn't had even hearings, much less votes, by the time the 2002 elections rolled around. When the Democrats lost the Senate in that election, they turned to filibusters. And that's where we've stood ever since.

After the Democrats lose this battle, as they will, the focus will shift to the more civilized battle within the Republican Party and to the question whether the courts will give us the democratic constitution the New Deal Court invented, or the constitution of liberty the Founders set in motion. That will be one to watch.