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The last time I read the U. S. Constitution (which was quite recently),
the document still began with the words, "We, the People of the United
States . . . ." If this declaration means anything, it means that the
American people have a right to know — a necessity of knowing — the
basic philosophical and constitutional positions of their leaders — before those leaders are chosen.
This is true even — or especially — with appointed federal judges. Reconstructionists (i.e.,
"activist/liberal") judges are leading the assault on America's
Judeo-Christian foundations in our nation's Culture War. Indeed, these
Reconstructionist federal judges (particularly U. S. Supreme Court
Justices) have changed the nature of the courts, the Constitution, and
the culture in this War.
This truth about the Court has been generally disputed in past judicial
nomination hearings. "Judges . . . are not political actors," declared
Justice Ruth Bader Ginsburg in her dissenting opinion in the Court's 2002 decision, Republican Party of Minnesota v. White, (536 U.S. 765, 2002). (Ginsburg is arguably the most "political" of all of today's Justices.)
There is little reason to expect in the upcoming Sonia Sotomayor
Supreme Court nomination hearings a change in the rhetoric of either
the nominee or her supporters. But the Senate nomination hearings —
especially the Judiciary Committee hearings — offer our best, and most
appropriate, opportunity to learn the necessary information about
prospective judges, including Sotomayor, and the roles they will
actually play in today's real world.
Therefore, tough questioning of would-be judges is not only our option
as Americans, it is our obligation. ("Tough questions" are questions
about the nominee's general philosophy as it pertains to law, plus
his/her legal and constitutional philosophies.) Indeed, lurking in the
shadows of the "judges can't be asked the tough questions" rhetoric is
one of the most basic questions of all: what happens to the right of
the electorate in a republican form of government to know in advance
the views of those who would lead them (especially the Supreme Court,
which is now clearly a lawmaker, though clinging to the fiction that it
is only a law-interpreter)? America needs, and deserves, to know if its
would-be judges understand the current unconstitutional nature of the
courts and are committed to the constitutionalist philosophy of
returning the judiciary to the role prescribed for it by the
Constitution.
The battle over judicial nominees is a white-hot front in
America's Culture War — a war between the polemic Judeo-Christian and
humanistic worldviews. The nominations battle is not really over people, but over principles; it is not just a fight for the Court,
but for the country. Therefore, the "fictions-proclaimed-as-facts" by
the "no tough questions" campaigners raise issues extending far beyond
any one nomination. It is vital that we Constitutionalists understand
the fictitious platitudes parroted by Reconstructionists and the facts
with which to refute these fictions. Some of the main Reconstructionist
arguments are dissected below.
Fiction #1: "Asking nominees tough questions 'threatens to
radically politicize the judicial confirmation process and turn judges
into politicians.'" Fact: Politicizing the judiciary and morphing judges into politicians is a moot issue.
The federal judiciary has been politicized from its earliest days —
witness the Jeffersonian impeachment effort against Federalist Justice
Samuel Chase in 1804-1805. Today's Court is even more radically
politicized. This truth was clearly articulated by former Cornell Law
School Dean William R. Forrester. Writing in the American Bar Association Journal
in 1977, Forrester declared," [the Court] can no longer be described
with any accuracy as a court, in the customary sense. . . . its primary
function is not judicial but legislative. . . . It has become the major
societal agency for reform." Such a body is, by definition, a
"political body," Justice Ginsburg's protestations notwithstanding.
The irony of the Ginsburg argument is that it is made by the
Reconstructionists, who are primarily responsible for the
politicization of the current judiciary and its judges.
Constitutionalists are devoted to selecting judges who will reverse this judicial politicization as much as is possible.
To repeat the Fact: America's national courts are already very
politicized, and one of the nation's greatest challenges is to reverse
this trend. Asking judicial nominees tough questions relevant to
this challenge is a major step toward de-politicizing the judiciary.
The supremacy of judges must be replaced by the supremacy of the
Constitution.
Fiction #2: "Asking nominees tough questions threatens the independence and impartiality of the federal courts." Fact: At least three truths render this assertion a fiction.
- It is impossible to attempt to find a judge who has no views
whatsoever on the fundamental constitutional and cultural issue of our
nation's law. The White majority made this clear in asserting that, " . . . it is virtually impossible to find a judge who does not have preconceptions about the law."
Indeed, the very definitions of "impartiality" and "independence" are
derived from one's philosophical and constitutional positions. (Does
anyone really believe that Justice Ginsburg is, or was in 1993,
"impartial" or "independent"?)
There are overwhelming reasons for Americans to be concerned
about the independence and impartiality of those who judge them. But
the danger is from today's Reconstructionist judges who have violated
their oath to "support this Constitution" and have used the
"impartiality /independence" argument to cloak their own fierce efforts
to morph the Constitution and culture into Humanistic entities,
radically different from the America which grew to greatness under a
Judeo-Christian worldview.
- It is undesirable to attempt to find a judge who has no
views whatever on the fundamental constitutional and cultural issues of
our nation's law. As the White Court majority explained,
". . . even if it were possible to select judges who do not have
preconceived views on legal issues, it would hardly be desirable to do
so. [This lack of views] would be evidence of lack of qualification, not lack of bias (emphasis added)."
American "law" today contains numerous definite statements of America's
worldview positions, and any normally functioning adult must have
developed ideas about these positions. It is therefore unthinkable that
federal judges would have no such ideas.
- It has not been America's practice to require judicial
nominees to have no worldview (an impossibility) and/or to shield
nominees from tough questioning during the conformation process. "A
judge's lack of predisposition regarding the relevant legal issues in a
case has never been thought a necessary component of equal justice. . .
.," declared the White Court.
This Court explained further that the "traditional sense" in which the
term "impartiality" is used is "the lack of bias for or against either
party to the proceeding [over which a judge is presiding]."
"Impartiality" in this sense is certainly a quality which America
should require of its judges.
To repeat the Fact: Asking nominees tough questions does not imperil judicial impartiality or independence.
To the contrary, exposing a judge's worldview to all Americans before
the nominee is approved is a necessary ingredient in guaranteeing that
judges will be as impartial and independent as possible.
Fiction #3: "Nominees should not be asked to 'prejudge' future
cases and issues as a condition of confirmation, especially when such
prejudgment involves a nominee's religious persuasion" (allegedly a violation of the Constitution's prohibition on religious tests for national government office). Fact:
a judicial nominee's publicly articulating and defending his/her basic
philosophical and constitutional positions (critical ingredients of
his/her worldview) is not "prejudging any case or issue." Nominees can, and must, be questioned, and questioned carefully, about the law-relevant portions of their worldviews.
If it were otherwise, nomination hearings would be short indeed. As the Court itself declared in White,
"[there] is almost no legal or political issue that is unlikely to come
before a judge of any American Court, state or federal, of general
jurisdiction." And a nominee's stating "a philosophical generalit[y]"
(e.g., "I am a strict constructionist") "has little meaningful content
for the electorate" and may not even be verifiable without "application
to real-life issues" that the Court is likely to face.
This fact is illustrated by the issues of abortion and
homosexual rights, where worldview clashes are especially visible.
Cases in both these issue areas inevitably involve fundamental,
non-legal questions such as the meaning of "personhood," the nature of
man, the nature of marriage, and morality. Court decisions on these
issues are inherently philosophical statements by the courts.
But these Court decisions are now also constitutional statements.
The Court has dragged these issues into the constitutional arena with
its convoluted expansion of the Constitution's Due Process and Equal
Protection Clauses (as well as other provisions) to cover abortion,
homosexual rights, and other fundamental cultural issues. The Court
itself is thus the one responsible for legitimizing a wide range of
questions of judicial nominees which would not have even been thought
of in earlier American history. Indeed, it is these very issues that
have ignited many of the flames in the Culture War now engulfing
America. Scrubbing from nomination hearings and public debates over
judges any discussion of a judge's views about these fundamental
philosophical and constitutional questions of our society is an
impossibility and a vicious slap at the principle of republican
government.
It is therefore also a fiction to argue that questions about such
issues as abortion or homosexual rights violate the Constitution's
prohibition upon religious tests for national office. These issues are not "religious" per se. They are philosophical and constitutional.
They do indeed have roots in religious values. But "to have roots in" something is not the same thing as "to be" something.
The constitutional and cultural conundrum created by fictitious
arguments in judicial nomination battles must be addressed by us — "We,
the people." We must insist that our Senators (who are accountable to us
— yes, to us and not their party or Senate peers) ask of all judicial
nominees a full and honest explanation of their basic philosophical and
constitutional positions. Law-savvy Americans can provide questions to
Senators (especially some apparently question-allergic GOP Senators)
who do not fulfill their responsibility. We must hold the Senate, the
White House, and the nominee accountable in providing us with a
substantial, objective, verifiable body of data revealing a nominee's
basic philosophical and constitutional positions. We must then lobby
our Senators to support only clearly Constitutionalist nominees. And we
must continue to hold these officials accountable for the judicial
conduct of any nominee who is confirmed. It is in this context of
openness, not secrecy, that the greatest degree of judicial
non-politicization, independence, and impartiality can be achieved.
What ARE some of the tough questions we need to ask
Judge Sotomayor and other judicial nominees? Here are a few.
Affirmative reactions to the following assertions, all actually made by
a court or "legal expert," reflect Reconstructionist positions. The
original sources of these quotations are cited in parentheses.
[NOTE: These questions are covered in our "Constitution Blitz" and other works by Dr. Armstrong — see www.BlackstoneInstitute.org.]
- QUESTIONS ON GENERAL PHILOSOPHY: "Nominee _____, do you agree:
- QUESTIONS ON LEGAL PHILOSOPHY: "Nominee _____, do you agree:
- that "it is from the [American] people, and not God, that the state draws its powers"? (Glassroth v. Moore, 229 F.Supp. 2d 1290 [2002])
- that basing our law on Western civilization and
Judeo-Christian moral and ethical standards does not, but should, take
account of foreign and international authorities? (Lawrence v. Texas, 156 L.Ed.2d 508 [2003], summary of majority point)
- that "The institution of rights against the government is
not a gift of God, . . . [but] a complex and troublesome practice that
makes the Government's job of securing the general benefit more
difficult and more expensive . . . ."? (Ronald Dworkin, TAKING RIGHTS SERIOUSLY [1977])
- QUESTIONS ON CONSTITUTIONAL PHILOSOPHY: "Nominee ____, do you agree
- that the Constitution is to promote "the living development of
constitutional justice" and be interpreted to elaborate an idea of what
is "human" and "being" and to forge "a new moral order"? (Lawrence
Tribe, AMERICAN CONSTITUTIONAL LAW [2d ed. 1988]); Michael Perry, THE
COURTS, THE CONSTITUTION, AND HUMAN RIGHTS [1982])
- that "[The Constitution] is made for a people of fundamentally differing
views . . . ?" (Roe, supra)
- that The Constitution "reflects a set of conflicting
ideals and notions . . . ." and "is an intentionally incomplete, often
deliberately indeterminate structure for the participatory evolution of
political ideals and governmental practices"? (Tribe, supra)
We American Constitutionalists who hold a high view of our
Constitution, believing that it is, and must be, the Supreme Law of the
Land must act. We are encouraged in this vital endeavor by one of
America's most brilliant and articulate defenders of a limited
judiciary — Justice Felix Frankfurter. Frankfurter wrote
in 1941 that "Judges as persons, or courts as institutions . . . are
entitled to no greater immunity from criticism [or questioning] than
other persons or institutions . . . . Judges must be kept mindful of
their limitations and their ultimate public responsibility by a vigorous stream of criticism [or questioning] expressed with candor however blunt. (italics added)" (Bridges v. California, 314 U.S. 252, 289-290).
[NOTE: This material was originally presented orally to
the national Eagle Forum's annual leaders roundtable in St. Louis, Jan.
27-28, 2007. Eagle Founder and President Phyllis Schlafly urges all
concerned Americans to utilize this questionnaire and distribute it as
widely as possible.]
NEWS UPDATE: Eagle Forum's Court Watch is receiving a major boost in its worldwide outreach.
The Library of Congress has asked for permission to archive material
from the Court Watch Web site. The LOC will monitor the CW Web site in
the future so that CW will have an ongoing contribution to "researchers
on site at Library facilities" as well as "researchers across the world
through the LOC's Web site" (quotes from LOC message). Court Watch
materials will be housed in the U. S. Supreme Court collection at the
Library. "Court Watch is most grateful for this extraordinary
opportunity to provide top-quality education and scholarship on a
broader scope than before and are excited about this opportunity,"
declared Dr. Virginia Armstrong, National Court Watch Chairman.
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