A prime example of this phenomenon is the Democrats' recently resorting to the "nuclear option" in the Senate regarding the Republican minority's filibustering President Obama's judicial nominees. It wasn't that long ago that the Dems, also in the minority in the Senate, were holding up many of George W. Bush's judicial nominees by using the same tactic, yet, at the time, they claimed the filibuster was a time-honored tradition and necessary to keep "extremists" off the bench. Naturally, there will come a time when we once again have a Republican president and Senate majority, and the Dems will undoubtedly be clamoring to reinstate the filibuster for votes on judicial appointments; as usual, their "principle" is only valid in their eyes when it promotes their policies.
Personally, I think it's wrong in all situations for the Senate not to give an up-or-down vote to the president's judicial nominees. The right to nominate judges is a natural consequence of winning an election; I believed it during the Bush Administration, and I believe it now during the Obama Administration. But it's even more wrong to change the rules to suit the ends of one party over the other. For generations, it was the practice of the Senate simply to consider a nominee's objective qualifications and temperament for the bench and vote accordingly. Now, however, the federal judiciary has become a major policy-making organ -- principally because it can, and largely because a pusillanimous Congress generally does not address social issues that might impact its members' viability for re-election. With judges making decisions according to their own political preferences -- often reversing directly democratic measures or state-constitutional amendments using the catch-all justification of "equal protection under the law" -- it's no wonder the confirmation process has become so contentious. One president's appointments can have a huge impact on policy for an entire generation.
Recently I heard a fellow church member aver that the courts are indispensable in protecting individuals and minorities from the "tyranny of the majority," stating that we Mormons were once an oppressed minority -- and wouldn't we have liked fair treatment in the courts of Missouri in the 1830s? It's a false analogy, of course: the Mormons had legal rights that were being trampled on in Missouri, and the authorities there refused to enforce or vindicate those rights. That simply isn't the same thing as asking the courts to create rights that have heretofore been unrecognized under the Constitution, and which, by any reasonable view of the democratic process, lie within the purview of the Congress and state legislatures. (A better analogy, and one directly pertinent, would be the polygamy cases of the late 1870s, in which the Mormons asked the courts to invalidate, on 1st Amendment grounds, the laws passed by Congress outlawing plural marriage. The Supreme Court in those cases paid great deference to Congress, as it rightly should have done, carving out an exception to the "free exercise" clause for religious practices that were repugnant to the general population. It isn't at all clear that either Congress or the Supreme Court would act in a similar fashion today: one, Congress probably wouldn't take action, and, two, in any case the Supreme Court wouldn't defer to Congress in almost any matter involving policy. The "tyranny of the majority," indeed -- if anything, the reverse is true.)
I fully understand the motivation for acquiescing in, even encouraging, the courts' charting the social path for the country, given the reticence of our entrenched, self-interested Congress in taking up controversial issues and the snail's pace at which change would otherwise take place. However, the fact that an insular and dictatorial political elite can initiate rapid social change does not guarantee, in any objective sense, that the changes will be for society's good. I mean, transformative social change happened very quickly in Stalinist Russia, Nazi Germany, Maoist China, Kim Sung-Il's North Korea, Pol Pot's Cambodia, the Taliban's Afghanistan, Robert Mugabe's Zimbabwe, and the mullahs' Iran; however, the history of those regimes makes clear that not all social change constitutes social progress.
My point is that there's safety in preserving the democratic process, and in allowing social change to happen at the same rate as changes in public attitudes, as reflected in the actions of elected officials, the people's representatives. The people who applaud judicial policy-making now will be the first ones clamoring for impeachment of judges who establish policies they disagree with, but what logical argument will they have to limit judges' discretion at that point?
In closing, I mention that my current manager at work, a very kind and perceptive person, is gay and married his partner years ago in Canada, after which they adopted a number of children together. My opinion of same-sex marriage, conceptually, has pretty much taken a 180-degree turn as the result of having gotten to know him. The New Mexico Supreme Court recently held that same-sex marriage cannot be prohibited in the state, which is sort of a moot point because the state legislature could easily have passed a bill to achieve the same end, and without fear of an electoral backlash. The same isn't true in Utah, where a federal district judge recently ruled that a state-constitutional amendment effectively barring same-sex marriage in that state.violates the 14th Amendment of the U.S. Constitution. It would be nice for each state to be able to decide the question for itself, although the issue of non-uniform recognition of marriages performed in other jurisdictions is ultimately insoluble and practically invites federal pre-emption. (Such pre-emption, when it happens, will undoubtedly come in the form of a Supreme Court holding; far be it from Congress to stick its neck out when the courts will do its dirty work!)
