Gordon S. Jones
Thursday, July 17, 2003

If only ABC's George Stephanopoulos, host of This Week, had asked her the kind of tough questions he usually puts to the Republicans who populate the executive branch.

In case he ever gets another chance, let me propose a few that his production staff can put on index cards, just in case:

1. With a divided Supreme Court in a divided nation, you turn out to be the final arbiter of any important question of public policy. How did that situation come about?

2. You are appointed for life to your current position and are, as a result, responsible to exactly no one in America. Doesn't it seem a little strange for a person enjoying that status to also be the de facto ruler of a democratic nation?

3. The federal courts are now managing school districts, levying taxes, operating prison systems, managing the federal lands (and the state lands in many western states), deciding who may be killed and who may not in abortion clinics, laying down rules for who may be executed under state death penalties, establishing standards of mental competence, drawing election districts, and measuring economic concentration in extraordinarily complex and dynamic industries. Don't you ever have a moment of self-doubt as to whether you are up to all this?

4. One of the arguments made for the Court as final arbiter is the need for finality, for closure, for stability. In 1986, the Court held in Bowers vs. Hardwick that it was legal for states to prohibit sodomy. Today, in Texas vs. Lawrence, the court changed its mind. Where is the stability in that?

5. You have also said that too much affirmative action is a no-no (Gratz vs. Bollinger) but some affirmative action is O.K. (Grutter v. Bollinger). Do you really think you have settled this question, or have you actually just ensured that you will have a future caseload?

6. Is there any desirable public policy that is forbidden by the Constitution? Could you give an example?

7. Contrariwise, is there anything the Constitution requires that you think is bad public policy? Or anything the Constitution ought to require that it doesn't?

The plain fact of the matter is that this nation is now ruled by Sandra Day O'Connor -- not in the sense that she can order slaves to wave palm fronds over her as she snacks on bonbons but in the sense that all important policy questions now end up in the courts, eventually before the Supreme Court where she is the deciding vote.

As the swing vote, Justice O'Connor effectively decides all important policy questions. If the Court were not so divided, it would make little difference. America would be ruled by nine individuals instead of one. Unelected and often irresponsible judges would still be making public policy in every area that counts.

When she was nominated to her current post by former President Ronald Reagan, I was one who testified during her confirmation. I did not oppose the nomination. I merely noted that, as the Court was increasingly the final arbiter for policy decisions, it would be helpful if senators would insist that she state her views on important questions of public policy.

If she could not be held accountable for her decisions, I suggested, then at least those who voted in the affirmative to confirm her to the court could. I pointed out that each member of the Senate Judiciary Committee had in fact asked her views on policy issues, and that she had declined to answer every single one of them, Democrat or Republican, liberal or conservative.

Twenty-two years later, Justice O'Connor is effectively the ruler of the people of the United States. We still have no way to hold her responsible for a string of decisions wildly at variance from the views of the man who nominated her, from substantial congressional majorities, and from the views of the population at large. On a sharply divided court she is left to decide what acts approved by the elected representatives of the people of the United States pass muster and which acts, for increasingly extra-constitutional reasons, do not.

Many of the Senators who voted to confirm her are still there, some are even up for re-election in 2004. They are responsible for the judicial tyranny now imposed on the American people. Let us hope they are held accountable.

Commentary by Gordon S. Jones, a long-time congressional staff member who resides in and observes life from Draper, Utah.

Copyright 2003 by United Press International.

All rights reserved.

Editor's note:
FREE E-mail Alerts From NewsMax.com - Click Here Now!