Editor’s note: This is the second in a two-part opinion series on judicial nominations. The Spectator invites all readers, regardless of political affiliation, to contribute their opinion to editorial section.

The United States finds itself in a culture war. Issues such as abortion, guns and gay marriage are at the forefront of this war.

Unfortunately, activist judges have decided to enter the battle. And because of this, the judicial confirmation and nomination process is also in a state of chaos.

Judges who believe in the construed philosophy of a “Living Constitution” breathe new life and definition into language. In turn, they create new laws and new rights not intended to be created by the judicial branch. They are not faithful to the original intent of the Constitution.

Until the 1900s, judges used to interpret the meaning of the Constitution consistently with its language and precedence. At that time, the notion of a “Living Constitution” came into existence. During the early 1900s, the first books and newspaper articles debating the notion of a “Living Constitution” began appearing – both pro and con. Also, the first clear judicial debate came in the Supreme Court ruling of Home Building v. Blaisdell (1934).

Today, it would be almost unthinkable that a federal or Supreme Court nominee would not go before the Senate for questioning.

However, it was not until 1925 that the first Supreme Court justice appeared before the Senate, and this was not a regular occurrence until the mid- 1950s. Beside the invention of the television, what has caused this change? It is the cultural war. No longer are judges evaluated solely based upon their caliber, consistency, integrity and ability. Rather, they are also evaluated on their personal positions on hot-button social issues.

The media and Washington elite have embraced the notion of a “Living Constitution” and believe that the nominee, not the Constitution, will dictate the future laws of this country.

When the president nominates a judge, the nominee then goes before the Senate and needs a majority up-or-down vote to be confirmed. However, many nominees have been denied this by a procedure called the filibuster. The filibuster was not created by the framers of the Constitution, and it can be seen as one of Congress’ most famous procedural tools. It is an attempt to extend debate in order to delay or completely prevent a vote. Senators have the option to keep speaking and stalling, even on a topic that is totally irrelevant.

The filibuster has disgraceful roots. It was used for over a century to defend Jim Crow laws and prevent passage of civilrights legislation. It is a way for the minority to try and keep the majority’s will from being put into action. The filibuster was previously used only in legislative affairs, but recently it has been used in an unprecedented way to block judicial nominees. Beside this, it is a direct action that keeps the Senate from fulfilling its constitutional role of “Advise and Consent.”

Sen. John Kerry, D-Mass., recently led a failed filibuster against Justice Samuel Alito. Nominees should be given the civility and decency of an up-or-down vote. Interest groups also wield incredible power in the judicial confirmation process. Most recently groups such as the National Organization for Women, Pro Choice America and People for the American Way have led smear campaigns against judicial nominees.

They do this because these groups want nominees that are judicially active and believe in a “Living Constitution.” They do not want to try to change the Constitution in the appropriate way. They would rather use activist judges to do that. They know that they are outside of the mainstream of America, and they can not win the cultural war if the people and their elected representatives decide. Their only hope is in a judge that can change the law for them.

William Pryor is a great example of a quality nominee who was undeservedly smeared. He is the former attorney general of Alabama who was nominated to the Eleventh Circuit Court of Appeals a couple of years ago. He was a victim of a chaotic nomination process. During questioning for this position, Sen. Russ Feingold, D-Wis., attacked Pryor for a personal family vacation decision and tried to retrieve Pryor’s own personal preferences.

Why should a nominee’s personal preferences and positions matter if they are ruling according to the Constitution? The fact of the matter is that William Pryor was being criticized for private and personal choices, not for official actions as a public servant. A judge’s personal policy preferences should not matter, because the judge should interpret the Constitution, not insert their own preferences into their rulings.

It is incredibly encouraging that President Bush nominated John Roberts and Samuel Alito to the Supreme Court. They have an established record of integrity and a faithful interpretation of the Constitution.

As history has shown, the judicial philosophy of a judge sometimes changes over time. I would hope that both of these unelected, lifetime judges stay true to the Constitution, do not legislate from the bench and thus do not compromise the carefully crafted separation of powers.

Americans must understand and challenge the notion of a “Living Constitution” and support those judicial nominees who are faithful to the Constitution – not those who construe it. The power struggle in the cultural war must be waged in a civil manner. This will occur if the court sticks to a faithful interpretation of original intent and the people, not judges, rule on socially divisive issues.

Baldovin is a senior political science major and a columnist for The Spectator.