Vox Misses Mark on Institutional Primacy in Contemporary Federal Policymaking

William YeatmanYesterday,Vox's Ian Millhiser postedan interesting article on how President Trump's judicial nominees are changing the federal courts.I've no argument with Millhiser's underlying thesis: A lot of (great) judges have been appointed during Trump's administration.The causes for this are obvious. There ’s a Republican in the White House, and Republicans control the Senate, so the appointment process is well-oiled. In addition, past Senates (under both parties) changed the body’s rules so as to ease the confirmation of a president’s nominees.Where I take issue with Millhiser is with his understanding of the judicial power. He writes:In an age of legislative dysfunction, whoever controls the courts controls the country . . . [Judges] have become the most consequential policymakers in the nation . . . The judiciary is where policy is made in the United States.This can ’t be right.By its nature, the judiciary is weaker than either of the political branches. As Hamilton wrote inFederalist 78, courts have “no influence over either the sword or the purse,” unlike Congress and the president. Approvingly, Hamilton quotes Montesquieu’s assertion that “Of the three powers . . . the judiciary is next to nothing.”Millhiser might  reply: “Well, ‘next to nothing’ in the judiciary is more than ‘doing-nothing’ in Congress.”And, perhaps, he ’d have a point. But he’d still be mistaken overall, because the president is the undisputed policymaker-in-c...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs