A decision of supreme importance

by Michael Schuttloffel 

If — make that, when — the Supreme Court nomination of Judge Sonia Sotomayor is confirmed by the U.S. Senate, Catholics will hold six of the nine seats on the highest court in the land.

Expect, however, that number to remain little remarked upon, for the operative number remains five. Five justices equal a majority. And in our day, when courts often behave as legislatures, five justices equal the power to set social policy for 300 million citizens in what has become government by unelected petrarchy.

For the founding generation that wrote and ratified the Constitution, the modern Supreme Court would have been as unimaginable as space travel, the Internet, and “American Idol.” And while much that the Founders could not imagine is now real and desirable (space travel, the Internet), the dramatic evolution of the Supreme Court’s role in American life represents an unwelcome change never consented to by “we the people.”

Many of the most important questions of the day are now beyond the reach of the democratic process. Courts decide such issues, which ultimately means “the court” decides: the U.S. Supreme Court, or more accurately, five of its nine members. Thus the Senate Judiciary Committee circus all court nominees must now endure. Of course, it was not always this way.

Befitting application for a job where few Americans will even know your name, court nominations used to be generally free of the partisan brawls that attend contemporary confirmation proceedings. However, in the years after Roe v. Wade rendered Congress and state legislatures powerless to prohibit abortion, nomination battles began to take on a new importance. And ferocity.

Interestingly, Vice President Joe Biden (a Catholic) is in no small part the architect of the modern, highly polarized confirmation process. As chairman of the Senate Judiciary Committee in 1987, he oversaw the scurrilous defamation of Reagan nominee Robert Bork (now a Catholic), when Ted Kennedy (also Catholic) infamously prophesied that “Robert Bork’s America” would be “a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters,” etc. Fortunately for Judge Sotomayor and her presidential patron, nominees of abortion-friendly presidents are, as a rule, spared such senatorial slander and approved with relative ease.

It has been reported that a record $5.3 billion was spent on the 2008 presidential and congressional election campaigns. One might ask where the return on that very significant investment is if the courts have taken important issues like abortion out of the hands of elected officials. For an answer, look no further than Sonia Sotomayor, who despite (or perhaps because of) a nearly nonexistent paper trail on abortion, now bears the expectations of those who paid for last November’s Obama victory.

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