Woodrow Wilson most clearly articulated this choice. Choosing a justice who subscribes to one or the other of these views is thus as intensely political a decision as we can make. At the core of our political disagreement today is whether Americans are to be governed by the Constitution written by the Founding Fathers or by a Supreme Court acting as a permanent constitutional convention, making up the law as it goes along. Senate Judiciary Committee member Ben Sasse recently wrote in the Wall Street Journal that the Constitution “doesn’t talk about Democratic or Republican judges,” and that “viewing the Supreme Court through a partisan lens undermines the nature of the institution.” While the Nebraska Republican’s heart is in the right place, his argument misses the crux of the fight over the Supreme Court nomination that will soon roil his committee.
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