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Fresh off their claims that the public actually favors the massive takeover of the health care system that they recently passed into law (when in reality polling shows strong opposition), Democrat leaders in the Senate apparently seek to turn the upcoming hearings on a replacement for Justice Stevens into a "referendum" on allegedly "controversial" decisions by the "conservative majority" on the Supreme Court. In the process, they seek to demonize respected jurists such as Chief Justice Roberts and Justices Alito, Scalia, and Thomas as "conservative activists" who side with "corporate" interests. This strategy is likely to fail.

By wide margins, the American public strongly supports the traditional approach to judging followed by these Justices. In a recent Rasmussen poll, for example, 60% responded that the Supreme Court should make decisions based on "what's written in the Constitution and legal precedents" as opposed to its "sense of fairness and justice." Occasionally, this means that the Court will side with "corporate" interests. However, it also means that it will frequently rule against them. In arguing for a results-oriented method of judging that places policy outcomes over impartial decision-making, Democrat leaders are repudiating this popular understanding of the judicial function.

For example, when President Obama criticized the Court during his recent State of the Union address for its decision in Citizens United v. Federal Election Commission striking down certain provisions of the McCain-Feingold campaign finance law, his remarks provoked a decidedly negative reaction in many quarters. Nonetheless, recent reports indicate that Democrat leaders will renew their attack on the Court for its decision in Citizens United, arguing that the Court's recognition that corporations have First Amendment rights sanctions a "corporate takeover of our elections." In pursuing this strategy, Democrat leaders are demonstrating, once again, that they are profoundly out of touch with the American people. The public expects judges to decide cases in an impartial manner--not based on their sense of "fairness" or whether one side or the other will benefit from a particular outcome.

Nor does the public find the specific outcome in Citizens United particularly troubling. While polling on the issue is mixed, a Rasmussen poll on this issue found that 65% believed that corporations should be able to buy advertising that tells people how politicians voted on important national issues. Likewise, a Gallup poll found that 57% of Americans considered campaign donations to be a protected form of free speech and that 55% believed that corporate donations should be treated the same way under the law as donations from individuals are treated (only 39% disagreed).

More importantly, the charge that Republican-appointed Justices are biased in favor of corporate interests is fundamentally inaccurate. For example, Justices Scalia and Thomas have maintained in a series of decisions that the Constitution imposes no limits on the punitive damages that may be awarded in civil lawsuits against corporations. In contrast, Democrat-appointed Justices, such as Justice Breyer, have consistently argued that such damages are constrained by the Due Process Clause even where a jury finds that the facts fully warrant imposing additional punishment for corporate wrongdoing. The charge that Republican-appointed Justices always rule in favor of "corporate" interests, while Democrat-appointed Justices rule in favor of the "little guy," simply does not hold water.

The politicization of the judicial process in this manner is troubling. The legitimacy of the judicial branch hinges upon its impartiality. Once judges begin deciding cases based upon their own policy preferences rather than the rule of law, they exceed their constitutional authority.

Politicizing the judicial process is also bad politics. The American public simply does not share Democrat leaders' highly politicized vision of the judicial function. Rather, they agree with Chief Justice Roberts, who testified during his confirmation hearings that "judges are like umpires" who "don't make the rules," but rather call them like they see them.

Douglas G. Smith is an adjunct scholar at AEI.

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