Judges and Legislators

In England, a child was aborted because it had a cleft palate. There was an investigation, and an uproar. In America, Congress hears testimony that one abortionist performed nine partial-birth abortions because the baby had a cleft lip, and our Supreme Court, in its infinite wisdom, looks at the record and continues to require an extremely broad health exception.

Our democracy was not founded on the principle that five judges could write their opinions into law. But we have seen the Supreme Court slide down into taking cases best left to legislatures and impose mere opinion on the entire country. We are now governed by a determination that something is included in the "penumbras" in the Constitution to an embarrassing degree. Or to put it more bluntly, if I want it badly enough, I can find it in the Constitution.
And I don't say this simply out of policy differences with the Supreme Court. I think the death penalty is wrong, but this decision was based on such slippery legal reasoning that I could fashion any number of "rights" (or eliminate same) based on mere policy preference. This decision landed President Bush a first term. I voted for him, so I should be happy, right? I'm not. The Supreme Court has no business answering a political question. They had no business taking the case. The belief that they could settle the political dispute, preserve national unity and maintain faith in the political process was arrogant and in some ways was proven wrong by subsequent events.

These decisions and their ilk are the reason judicial selection now resonates as a political issue. I know that democracy is not perfect, and that sometimes the voters do not do the right thing. That said, I trust the people as a whole to do the right thing and to pressure their elected officials to do the right thing much more than I trust the ability of five elderly judges to legislate.