As part of the ongoing preparations for the next big court battle, liberals have been denouncing President George W. Bush for injecting politics into the judicial selection process. They insist they oppose his court nominees across the board, actual and potential, because Bush is engaging in "ideological politics" with in the selection process.
Thus, The New York Times recently ran an article by a Stanford history professor plaintively pleading for an independent judiciary, asking: "[W]hat happens to that concept when the appointments process becomes an extension of ideological politics by judicial means?"
Apparently, the way to stop politicizing the courts is for conservatives not to interfere with liberals politicizing the courts. For conservatives to roll over and let liberals keep their invented "constitutional rights." These include the constitutional rights to privacy (or the right to stick a fork in a baby's head), the Flynt Amendment (the prohibition of all speech except pornography, blasphemy or criminal conduct), and the historic separation of church and state (the requirement that religion be stamped out of the schools, the courts, the public square and the churches).
The problem with the professor's argument is that it's not "the appointments process" that uses "judicial means" to engage in ideological politics. Only the judiciary can use "judicial means" to do anything. The appointments process is just the appointments process. The way to keep politics out of the courts is to keep politics out of the courts. A good start would be for judges to issue rulings grounded in the Constitution rather than the latest ACLU circular.
Here is how some of Bill Clinton's judicial appointments avoided politicizing the courts by closely following the language of the Constitution.
Judge Diane Wood, the centrist judge Clinton put on the U.S. Court of Appeals for the 7th Circuit, found that failure to provide a prisoner with a smoke-free environment constituted cruel and unusual punishment. Another centrist Clinton choice, Judge Robert Henry of the 10th Circuit Court of Appeals, held that it was cruel and unusual punishment for the state to deny sex-change hormone treatment for a transsexual prisoner.
Before Clinton promoted him to the 9th Circuit Court of Appeals, District Court Judge Richard Paez struck down a law against aggressive panhandling at ATMs, outdoor caf