Judicial Philosophy is the Heart of the Matter
August 14, 2005
Make no mistake about it, judicial philosophy must be at the heart of any Supreme Court nomination. It is that philosophy which should serve as the ultimate guide to an up or down vote on the nominee by the US Senate. It is not about whether the nominee will advance a social policy agenda but rather it is about one who will stand with the original intent of the Constitution. Judge John G. Roberts pointed it out well when he articulated the concept that the court system is not a forum to remedy social problems, but rather, to strictly interpret the law in the light of its constitutionality. As we see it, the US Constitution is the client of the US Supreme Court. The purpose of the Court is not to write the laws that lawmakers are unable to get approved through their own appropriate legislative process or body. It is up to the Congress to do its own work at lawmaking; that is what they are elected to do and that is where the Congress should be held accountable.
It is true, we hear much about the term "activism" vs. "restraint" and looking at the Constitution as a "living document" vs. focusing on "original intent." As we see it, the Constitution is a product of the "wisdom of the ages"; it is that document which serves as the basis on which our Country was founded. The Constitution is the law of the land. The only uncertainty we have today is how it might be applied in untested situations and settings. And, there are those who believe that we live forever in a social experiment and our reality is the result of whatever thinking happens to be in vogue at the time by the thinkers and social engineers of that time. There is a marked difference in this culture dialogue-judges who, by virtue of their vote on a case, prefer legislating from the bench (that is, doing the work of legislators) to that of those judges who see their role as interpreting legislation in light of its Constitutionality (undertaking rightfully the work of US Supreme Court).
More important is a judge's view on the significance of the Constitution. Many modern judges, including even "conservatives" like Anthony Kennedy cite international law as a basis for a decision. In our view this is reprehensible. Our Constitution was designed as a sovereign document which held certain and specific values which must come from within. To impose external views on domestic laws is not law. Law is the overarching conscience of a people within a national boundary. While many international laws have merit, unless we first adopt them into our culture, their effects will be negative upon our society. To draw from other nations not in our legal heritage is to, in our view, reduce the system of our law. Our legal system has its basis in English Common Law, and there is no doubt, its basis has made our nation a model to emulate. And as Judge Lerned Hand used to say of our system, "It is better to let one hundred guilty men free, than to convict one innocent man." There are few nations in the world that would have such a high legal standard. And in terms of international law, they should cite us, not vice versa.
The idea that conservative judges will vote for conservative policies and liberal judges for liberal policies is the antithesis of what a judge is supposed to do. In reality, what Senators and the country are entitled to know when selecting a justice on the Supreme Court is how a judicial nominee regards his or her duty to respect the US Constitution as the foundation of law. It is short-sighted that one would probe to extract from the nominee his or her personal views on particular matters which hypothetically may come before the Court. As a judge, one leaves his personal views at the door, such that all cases are ruled on constitutionally within the framework of facts, and nothing less.
Judges take an oath to uphold the Constitution. Respect for the separation of powers should apply to all three branches of government. Trying to extort a pledge from a judicial nominee to vote in a particular way on matters or cases she or he has not heard, is contrary to the very soundness of our legal system. Frankly, it violates the highest principles of jurisprudence. And this should be a matter of concern to all who respect the rule of law and the great traditions and precedents of our legal system. That is how we see it FROM OUR PERSPECTIVE.