Federal judges must not be de facto legislators

Excellent piece at NRO by John Yoo and James C. Phillips that one ought to really digest so as to use the next time one gets in a snit with a leftist who tries to frame conservative federal judges as GOP mouthpieces. (I recently got into a near shouting match with a lesbian who took that position. Her line of "reasoning" quickly devolved into the infantile assertion that Brett Kavanaugh is "against gay rights.")

Anyway,  I've rarely if ever seen such a lucid explanation of how the Left thinks in terms of how a particular judicial appointment is going to affect particularly demographic groups:

Democratic senators, as well as their expert witnesses called in opposition, advanced a view of a judge as simply the enabler of a political party’s policy preferences. They cross-examined Judge Kavanaugh on the specific outcomes he had reached in cases relating to certain groups of interest: minorities, women, environmental organizations, and the like. In their view, the only difference between a judge and a congressman is the former wears a robe.

Influenced by the Legal Realism movement, which is the basic approach taught in most American law schools today, these Democrats find law and facts to be mostly smoke and mirrors. Instead, to them, judges really exercise raw and unchecked political power in determining winners and losers. Judging is about outcomes, not process. To be a good judge is to pick the right winners. Lady Justice is not blind — she metes out justice with both eyes wide open so that she can favor the preferred class or group.

If judges simply advance political goals, then Democrats were at least honest in their desire for a judge who sympathizes with their favorite groups. That’s why President Obama said he was looking for judges with “empathy,” though undoubtedly it was not empathy for corporations, for example, but for groups he favored. Under this view, if you are a Democrat, you should only pick judges who vote for unions, racial minorities, and criminal suspects. If you are a Republican, you want judges who always vote for corporations and the police.

Republican senators, however, rejected this approach. Their view requires judges to be indifferent to the demographics of the parties before them. In Chief Justice John Roberts’s metaphor, judges are umpires who call balls and strikes, but do not promote personal preferences or prejudices. In other words, as Justice Kagan put it in her confirmation hearings, “the question is not, ‘Do you like this party or do you like that party? Do you favor this cause or do you favor that cause?’ . . . The question is what the law requires.”

The outcome of a case should not be the point, in other words — it’s the process judges use to interpret the law and apply it to the parties that really matters. Thomas Jefferson viewed judging as mechanical. He hoped for machine-like judges who would take the law, written by someone else, and apply it to facts presented by the parties. Of course, judging is not easy, and judges are human. But that ideal — that everyone is equal in the court of law, that there are no favorites before blind Justice — is as old as the Republic itself. Properly applied, it should make the judiciary, in Alexander Hamilton’s words, the “least dangerous [branch] to the political rights of the Constitution.”

But this is why leftists tremble in fear at the prospect of originalist majorities on federal benches. It requires them to get their agendas enacted by legislators, as the Framers intended, and that means convincing a sufficient number of their fellow voters of the merits of what they want to impose on society to elect legislatures favorable to it. Far more daunting than getting five black robes to seal the fate of certain cultural issues for at least decades if not forever.

But maybe that's not any less daunting, as it turns out. They certainly spent every last ounce of effort in trying to get that result a few weeks ago, and came up short of the mark.