In a perfect world, the search to replace Justice Scalia would not be controversial at all.  We'd go out and find some respected judge with good temperament and character, and that is it.  It was that way for a long time.

The Founding Fathers understood that the country needed a branch to settle constitutional issues.  It's clear from their writings that they did not want unelected justices with lifetime jobs legislating from the bench.  

Unfortunately, the Justices in the Supreme Court are doing too much legislating, from abortion to figuring the meaning of rules written by bureaucrats to rewriting Obamacare to same-sex marriage.  And this is why replacing justices is so controversial, and why some members of the Court hold on forever, waiting for a different president to nominate their replacement.   

I agree with Phillip Klein:

In modern Washington, appointed bureaucrats can issue sweeping regulations imposing billions of dollars in costs on industry, small businesses, and consumers; they can determine what type of health coverage every citizen must buy; and can make individuals pay more for electricity.

It wasn't supposed to be this way. Originally, the federal government was to be one of limited powers. Whatever power wasn't explicitly granted to Washington, or ruled out, was to reside with the states and their people. When that's the case, it allows citizens to debate divisive issues amongst themselves, giving them a voice in the process, and allowing for regional differences to exist on particularly contentious issues.

As for the judiciary, it was conceived as the "weakest" branch of government, as described by Alexander Hamilton in Federalist No. 78. Hamilton explained that the judiciary "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment…"

Over the decades, liberals have sought to control more and more aspects of people's lives from Washington. When they've been stymied at the legislative level, they've try to implement changes through executive fiat or by appointing judges they're confident will impose their ideological agenda by inserting new meaning into the Constitution.

Wonder what Hamilton would say of a Supreme Court that invented rights to an abortion or same-sex marriage!  Or an agency like the EPA acting by going around Congress!

As I told a liberal friend, my opposition to the Roe and marriage decisions is not rooted on my personal opinions.  Yes, I think that abortion is the taking of a life and that marriage is between a man and a woman.  My opposition comes from an understanding of our constitution and the role of the people and the states.  In other words, I would reluctantly accept legal abortion and same-sex marriage if the voters of Texas made it happen or it resulted from amendments to the U.S. Constitution.  

Yes, President Obama is right that these nominations have gotten worse over the years.  Yes, they have, and participating in Sam Alito's filibuster didn't help.

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