Who is on first - and who should be?

At the New Republic Online (http://www.tnr.com/doc.mhtml?i=20050530&s=rosen053005) Jeffrey Rosen makes an ingenious argument about the current (and upcoming) fight on judicial nominees. He argues that " we are in a dangerous situation when the people's will is better represented by the Supreme Court than Congress." Indeed, we are. But is the fight about whether to confirm the appellant nominees on that issue and is the Supreme Court a better representative than Congress of the people's will? That is probably the wrong question.

Rosen argues that Congress has grown to be less representative over time. That is true and his criticisms, in part - redistricting and other incumbent advantages allow elected officials to look more like potentates than representatives - are on the mark. That is not just true in Congress and it is not just true in legislatures. Elected officials have discovered the perks of office and have exploited their ability to wrest small and large favors from their constituents. Not all elected officials do this - but enough to degrade the institutions. We need to think creatively about adjusting our institutions to take congnizance of modern times and inventions without destroying the fundamental principles that grounded our institutions.

Rosen suggests that the American people agree with all sorts of things based on poll numbers - for example they support the filibuster. They do only if you ask the question in a way that does not elicit a true response. The American people are pretty clear when asked whether these people should be confirmed that they would like the Senate to act. They do not support things like holds or procedural maneuvers to not get to a decision.

One of the important principles from our founders was modesty about goals and possibilities - what another TNR writer suggested recently was the politics of doubt. If the activities of government become all encompassing then government will become less successful. An excess in areas of social policy by the GOP is not counterbalanced by excess by the dems in other areas.

The job of advise and consent for the Senate is not to rewrite the election results but to carefully review the qualifications of the president's nominees. All the bloviating about this or that by the opponents of the nominees is nothing more than sour grapes. Each of the nominees is qualified. Were the opponents smart, they would go forward with the votes - and if these seven were really terrible - the voters could take their revenge on the president and his party. That is the way the system was designed to operate. If they really believed in the system they would certainly have enough faith that one bad nominee will not destroy the system. One need only look at David Souter to understand that principle.