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VOL. 9, NO. 2Jan. 30, 2007
Questioning Judicial Nominees: An Obligation, Not An Option
By Virginia Armstrong, Ph.D., National Chairman

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Constitutionalist Americans, in the wake of the 2006 elections, find America in a worse condition than before and are often still casting about for a course of action. In the midst of this political fog, at least two facts clearly stand out. First, bad judging goes on continuously, but should not. Second, education does not go on continuously, but should. As President James Madison, the "Father of the Constitution," declared: "Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

When it seems that there is a "lull" in the Culture War, we should seize any opportunity to more fully "empower ourselves with knowledge." One crucial issue about which we clearly need more knowledge is that of selection of federal judges. Question: do we threaten the independence and proper functioning of the courts when we ask judicial nominees — at any level of government — about their philosophical views? Answer: Absolutely not.

Reconstructionist forces (i.e., liberal/activists) are approaching apoplectic fervor in their screams that such philosophical questions violate the Constitution's prohibition on religious tests as a condition for national offices. But Article VI in no way prohibits us from asking "PHILOSOPHICAL QUESTIONS" of nominees — questions about a nominee's GENERAL philosophy, LEGAL philosophy, and/or CONSTITUTIONAL philosophy.

Right now is an excellent time for us Constitutionalists to understand this fact and prepare ourselves to raise questions of future judicial nominees. Arming ourselves with the right questions is a top priority of Court Watch in the immediate future.

The U. S. Supreme Court itself provided numerous arguments defending the questioning of judicial nominees in its 2002 decision in Republican Party of Minnesota v. White (536 U.S. 756 [2002]). Admittedly, this case involved state judicial elections. But the Court noted that key points of its opinion applied to national, as well as state, judges. The Supremes pointed out that almost every legal or political issue (usually involving philosophy) is likely to come before today's judges. No questions about legal or political issues/philosophy equals virtually no questions at all. Furthermore, a nominee with no preconceived values about the law virtually would be either impossible to find or unqualified if found. As then-Justice Rehnquist pointed out in 1972, judges must be learned in the law. And any nominee nowadays sufficiently learned in the law MUST have developed some value notions about the law. Finally, American judges today are so deeply involved in value-setting/policy-making that we Americans must have a picture of their values to have a picture of their likely performance as a judge. This is ESSENTIAL to government by consent.

What ARE some of the key value questions we need to ask judicial nominees? Here are a few. Affirmative reactions to the following statements, all actually made by a court or "legal expert," reflect Reconstructionist positions.

  1. QUESTIONS ON GENERAL PHILOSOPHY: "Nominee _____, do you agree:

  2. QUESTIONS ON LEGAL PHILOSOPHY: "Nominee _____, do you agree that:

    • 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, 539 U.S. 558 [2003], summary of majority point)

    • that "The institution of rights against the government is not a gift of God, . . . [but] a complex, troublesome, and expensive Government job"? (Ronald Dworkin, TAKING RIGHTS SERIOUSLY [1977])

  3. QUESTIONS ON CONSTITUTIONAL PHILOSOPHY: "Nominee ____, do you agree that:

    • 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" (Tribe, supra) and to forge "a new moral order" (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"? (Lawrence Tribe, AMERICAN CONSTITUTIONAL LAW [2d ed. 1988])

This Supreme Court has been likened to a "de facto Council of Elders . . . ." Furthermore, "the constitution is a theological document . . . . [A]nd the Justices are the High Priests who keep it current with each generation of Americans." (Arthur S. Miller, TOWARD INCREASED JUDICIAL ACTIVISM: THE POLITICAL ROLE OF THE SUPREME COURT [1982]) This description is true (at least in the minds of Reconstructionist judges and their off-court allies), but deadly. Judges trump the Constitution. Court Watch hopes that you'll join us in the months ahead as we work together to replace this "judicial supremacy" with the "constitutional supremacy" our nation must have to survive and thrive.

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