JUDICIAL PHILOSPHY OR CALCULATED POLITICAL MANUEVERING?
April 15, 2007
There are those today in the drive-by media and the liberal wing of the establishment, who de-emphasize the perilous threats of Islamic fundamental fascism, over- emphasize the questionable issue of so called global warming, and at the same time, engage in political posturing with respect to judicial appointments. This is a misplaced ordering of " issue priority," and with serious consequences. Currently, these three issues are in the forefront. We look at just one of these issues today in our Column.
It is shocking that one need even ask the question "is the confirming of Supreme Court Justices determined by the nominees' judicial philosophy and qualifications OR, is it inspired largely by the sheer political motives by the various members of the US Senate?" When it comes down to it, if the confirmation process is driven by a litmus test of calculated political posturing, that we say, is unconscionable.
Recently, there has been much discourse about judges, dismissal of judges, the judiciary and, in the long term, the US Supreme Court. With the possibility of impending vacancies on the Court, we are bound to hear much on this subject. Make no mistake about it, judicial philosophy and qualifications should be at the heart of any judicial nomination and the confirmation process by the US Senate. When it comes to the make up of the Supreme Court, there is NO place for political chicanery or as the saying goes "politics as usual" in the confirmation process.
It is the nominees' judicial philosophy and professional qualifications which must serve as the base line guide in the selection and confirmation of Supreme Court justices. It is not about whether the nominee will advance a social policy agenda; it must be about where one stands with respect to the original intent of the Constitution. That is the only litmus test...period. Chief Supreme Court Justice John G. Roberts pointed this out well when he stated "the court system is not a forum to remedy social problems, but rather, to strictly interpret the law in the light of its constitutionality." For example, there is serious reason to be concerned with the makeup of the Supreme Court when one examines many of the decisions of the 9th U.S. Circuit Court of Appeals, the largest of the 13 federal circuit appellate courts in the United States, covering nine Western states. Point in fact, many of the decisions of the 9th Circuit have been chilling and many have gone on appeal to the US Supreme Court and many have been overturned based upon their constitutionality.
America's representative democracy is threatened by judges, at various levels, who usurp questionable or unconstitutional power. They impose their will instead of interpreting the laws in light of the Constitution. In fact, there are courts who rule regularly in ways that expand government powder and diminish the authority of citizens. It was John Adam who said back in 1776 "the only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a great Measure... they will not obtain a lasting Liberty." Take note: for example, we agree judges are empowered to enforce the Fifth Amendment's rule allowing the taking of private property for PUBLIC when there is cause but with the Supreme Court's Kelo decision, there is the empowering of taking of private property for use by private developers. This, we believe, is just plain wrong and should not be.
Unfortunately, as the courts have become more politicized, so has the judicial confirmation process. At the national level, the political view of judges--or their perceived views -- rather than their proven adherence to the rule of law is becoming the criterion for many of the so called "liberal" Senators. This criterion is establishing a dangerous precedent.
Americans are taught that ours is a "nation of laws and not of men." The Constitution is very much alive and relevant to the protection of our freedoms today. The enduring principles it embodies do not very in meaning depending on the fashionable notions of any era. In fact, when judicial activists talk about a "living Constitution," they are referring to a system in which judges and other officials use reverence for the Constitution to mask their own policy preferences.
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. It is up to the Congress to do its own work of legislating. And it is up to the Court to decide the constitutionality of the legislation in light of the Constitution.
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. But, 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.
Many modern judges, including even "conservatives" like Anthony Kennedy cite international law as a basis for a decision. In our view this too is unconscionable. 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 are not law. Law is the overarching conscience of the people within a national boundary. While many international laws have merit, their effects will be negative upon our society, unless we first adopt them into our culture. To draw from other nations not in our legal heritage will, in our view, imperil the foundational fabric of our law.
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. 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 or her personal views at the door, such that all cases are ruled on constitutionally within the framework of the facts.
Judges take an oath to uphold the Constitution. Respect for the separation of powers should apply to all three branches of government. 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 and 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.