Wisely pondering the delicate balance.

I didn't get much out of this NYT op-ed called "Chopping Off the Weakest Branch." The author, Ron Chernow, who wrote a biography of Alexander Hamilton, offers up some historical material from around the time of Marbury v. Madison. Yes, there was a big political struggle about the role of the judiciary back then. But so what?

[B]efore they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.

That's how the piece ends. So it would be "wise to ponder"? Okay, ponder on! But that's the end of the essay. Chernow only frets that Congress might "upset[] the delicate balance the framers intended." So it's the framers' intent we're following? Since the role of the judiciary -- and the role of the federal government -- has already evolved far away from anything they specifically intended, what can this mean other than please don't upset the "delicate balance" we happen to have currently? And why isn't part of the framers' vision the power the Constitution gives Congress to push back against the judiciary? Congress was given a set of checks, and Marbury says nothing against Congress exercising those checks. Indeed, the statute found unconstitutional in Marbury had the defect of giving the Supreme Court too much jurisdiction.

Of course, cutting off funding for the judicial branch is a foolish way to push back against the judicial power, and I tend to doubt such a foolish plan will gain much footing. The most significant check is appointing new federal judges as vacancies occur. This process of continually replacing judges is not disturbingly chaotic like cutting off funding. It's entirely orderly and necessary.

The real dispute now is how to carry out that process, which must, under the Constitution, take place, in part, in the Senate. Does Chernow's historical account tell us anything about how political that should or shouldn't be? Chernow takes the side of President Adams and the Federalists against Thomas Jefferson. But it was Adams who tried to preserve his party's power by stocking the judiciary with Federalists. So if the Adams side of the dispute was correct, what is the lesson to "wisely ponder" about what Bush and the Senate Republicans can do with appointments?