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VOL. 9, NO. 3Feb. 26, 2007
Questioning Judicial Nominees: An Obligation, Not An Option, II
By Virginia Armstrong, Ph.D., National Chairman

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"Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives." "Judges . . . are not political actors." So declared the U. S. Supreme Court's supremely political actor, Justice Ruth Bader Ginsburg, in her dissenting opinion in a 2002 Court case. The majority invalidated the Minnesota Supreme Court's prohibition upon state judicial candidates' "announc[ing] his or her views on disputed legal or political issues." (Republican Party of Minnesota et al. v. White, 536 U.S. 756, 2002)

Ginsburg's description of the function and nature of judges is a textbook litany of the reasons why so many misguided Americans oppose questioning judicial candidates on their positions regarding the critical issues of our day. However, questioning would-be judges is not only our option as Americans, it is our obligation, as we discussed in our last Court Watch briefing. Indeed, Reconstructionists themselves have created the need for such questions because Reconstructionists have attacked our Constitution and our culture and made the courts a white-hot center in America's culture war.

We now focus on examining the "justifications" for insulating judicial candidates from meaningful questioning of their constitutional and general philosophical positions. When we explode Ginsburg's two mythical assertions about judges' functions and nature, we undermine the larger argument that judicial candidates must not be questioned about their philosophies affecting their views of "disputed legal or political issues" of our day.

Let's look at Ginsburg's first erroneous assertion regarding judges: "judges perform a function fundamentally different from that of the people's elected representatives." This myth was exposed decades ago by scholars in the fields of political science and law. Consider this correct picture of today's Reconstructionist judicial function by one who should know — former Cornell Law School Dean, William Ray Forrester. In a 1977 article in the A.B.A. Journal about "truth in judging," Forrester declared:

[The U. S. Supreme Court as an institution] can no longer be described with any accuracy as a court, in the customary sense. Unlike a court, its primary function is not judicial but legislative. It is a governing body in the sense that it makes the basic policy decisions of the nation, administers and executes the directions it chooses in political, social and ethical matters. It has become the major societal agency for reform.

The Court majority in White also refutes Ginsburg's unrealistic picture of today's judges:

Justice Ginsburg greatly exaggerates the difference between judicial and legislative elections. . . . This complete separation of the judiciary from the enterprise of 'representative government' might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system.

Justice Ginsberg's second erroneous assertion concerns the nature of judges: "Judges . . . are not political actors." This "fact," explains Ginsburg, has several dimensions. One is that judges "are expected to refrain from catering to particular constituencies"; "They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency." That such forceful advocacy for judicial independence comes from the Justice who is arguably the most left-wing, Reconstructionist member of the Court is typical of the hypocritical irony of Reconstructionist tactics. Ginsburg's record of pandering to feminists, abortionists, homosexual rights proponents and other radically Humanist forces is glaringly clear.

Furthermore, judicial candidates who express their philosophies on critical constitutional and philosophical issues are not ipso facto "catering to particular constituencies." Of course, there are "groups, factions, and constituencies" who will hold the same philosophies as the judicial candidate-this is inevitable. Indeed, this clash over values is at the heart of any "political system." As pre-eminent political scientist David Easton established half a century ago, a "political system" is "those interactions through which values are authoritatively allocated for a society; this is what distinguishes a political system from other systems that may be interpreted as lying in its environment." The very essence of "government" is an inevitable governmental act — choosing of one set of values over another. Judges cannot avoid this choice, and their choices do not automatically constitute "catering to particular constituencies."

Justice Ginsburg's disingenuous attempt to shield judicial candidates from questions regarding their constitutional and general philosophical views and values fails. Her contention that judicial candidates should not be questioned as are other candidates such as legislators because "judging" and "legislating" are fundamentally different is spurious. "Judging" and "legislating" should be fundamentally different but are not in America today, primarily because of judicial usurpation of legislative powers. Americans must know, therefore, where their judges-turned-legislators stand on critical issues before judicial candidates are placed on the bench. Second, her argument that judges should not be questioned because they are not "political actors" rests on a fatally flawed definition of the "political." Deliberately representing particular constituencies, interests, etc. (Ginsburg's definition) may be "political" and avoidable for judicial candidates. But a judicial candidate's espousing views and values concerning the critical issues of our day is not automatically being "political," and is unavoidable.

Selecting judges committed to interpret the Constitution according to its original meaning is the way to reverse judicial legislating and political judging. Finding such judges requires that we ask tough, vigorous questions of judicial candidates. Justice Ginsburg is wrong (as usual): we Americans do have the right to know about our judges and what they really do and think — to know the "truth in judging," as described by Dean Forrester thirty years ago.

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