Presidential Politics Series: The Judiciary
September 16, 2007
To JUDGE or WRITE the Law, that is the question.
The War, the Economy, and the Judiciary...these three are uppermost in the minds of most American voters. The next Presidential election is months away but a number of candidates are making "nice" on generalities but are soft, if not silent, on specifics. For most Americans, surrender is not an option; victory is our only choice in the WAR AGAINST GLOBIAL TERRORISM. Some of this generation cannot forget the rallying call "Remember Pearl Harbor" and now, sad to say, we "Remember 9/11." For most Americans, the continuance of a vibrant ECONOMY is a significant priority with financial stability and growth. And, for most Americans the JUCICIARY...the purpose of which is to strictly interpret the laws in light of their constitutionality...is key to maintaining the blessings of liberty to ourselves and our posterity. The Judiciary is the subject of this column.
As we see it, the US Constitution is the client of the US Supreme Court. Alexander Hamilton said it well "A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." The Constitution of the United States created a representative republic in which "We, the People" decide issues and enacts laws through our elected representatives. However, in recent past decades, the Supreme Court had treated the Constitution like a blank check, in which they could write their own views on several decidedly controversial items.
Members of the Supreme Court are nominated by the President and approved by the US Senate. At the heart of the judicial nomination and approval process is the judicial role of the US Supreme Court as perceived by the decision makers. And thus, the American voters want to know the defining beliefs as held by the various Presidential candidates concerning the Constitutional role of Supreme Court Justices.
We believe that judicial philosophy should serve as the ultimate guide to a Presidential nomination to 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. Chief Justice 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. The Supreme Court legally protects the Constitution much as an attorney protects a client. The purpose of the Court is not to write laws for the Congress when that body is unable to secure the necessary votes to pass the legislation.
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.
Most important in all of this is a judge's view on the significance of the Constitution. Many modern judges, including Associate Supreme Court Justice Anthony Kennedy cite international law as a basis for a decision. In our view this is reprehensible. It is very clear in the Constitution that our sovereignty Ii is critical to our legal system and MUST NOT be subject to the whims of transient global opinion. Not only is this reprehensible, but to cite precedent is a violation of the judges' very oath of office. 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.
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 shortsighted that one would probe, as we have recently seen, 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.
Supreme Court Nominee Samuel Alito brilliantly stated his view when he categorically stated "Judges don't have the authority to change the Constitution. The Constitution is an enduring document and the Constitution doesn't change." Judge Alito went on to say "A judge cannot have any agenda, a judge cannot have any preferred outcome in any particular case. The judge's only obligation-and it's solemn obligation-is to the rule of law. There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law." What a significant, powerful, and profound statement!
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 or a potential nominee to vote in a particular way on matters or cases one 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 Constitution, the rule of law and the great traditions and precedents of our legal system. The Judiciary...to JUDGE or WRITE the law? We should all be waiting to hear precisely what the Presidential candidates have to say on this matter.
Walter Lippmann, an influential journalist, scholar and political commentator in the 1940's -1960's wisely stated "Very few established institutions, governments and constitutions... are ever destroyed by their enemies until they have been corrupted and weakened by their friends." This advice is worth heeding. And that is how we see it FROM OUR PERSPECTIVE.