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VOL. 11, NO. 5July 9, 2009
Tough Questioning of Judge Sotomayor: An Obligation, Not An Option

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.]

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

  2. 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])

  3. 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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