The activist role of both left- and right-leaning judges was examined by Hoover media fellow David A. Kaplan, who says that the federal courts have become involved in issues that are better determined by legislatures. In his talk May 19 titled "Supreme Warfare: Is It Time to Change How We Choose Nominees for the High Court?" Kaplan discussed his views in light of the bitter debate playing out in Congress now over judicial nominations and the role of the filibuster.
Calling the Supreme Court decisions Roe v. Wade (1973) and Bush v. Gore (2000) "bookends to modern constitutional law," he cited the former as a key instance of the justices intervening in an issue that could and should have been decided by elected representatives. On the latter case, in which the high Court resolved the 2000 presidential race, Kaplan pointed out that Congress had a set of procedures that should have been used to resolve that contested election instead of willingly relinquishing it to the Supreme Court.
Before acting to do away with the filibuster or merely looking for nominees to match their own political views, senators need to take the long view. Kaplan went on to say that nominees to the Supreme Court, ideally, should be picked on qualities other than perceived leanings on hot-button issues such as abortion or gay marriage. "The politicization of the process is terribly destructive," he said. Better to look for more moderate candidates who are well regarded in the legal profession for their intellect, neutrality, and judiciousness.
Kaplan is an award-winning journalist for Newsweek and the author of two books, both about pivotal cultural moments of recent times. The Silicon Boys (1999) is the uproarious chronicle of Silicon Valley during the high-tech boom; it remains the definitive portrait of that time. The Accidental President (2001) is the authoritative behind-the-scenes account of the 37 days in Florida following the presidential election of 2000. Before he began his journalism career, Kaplan was a lawyer on Wall Street. Currently, he is at work on a book about baseball.