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Fearless Philosophy For Free Minds: Fearless Philosophy Flashback: Appointing Qualified Judges

Thursday, July 21, 2005

Fearless Philosophy Flashback: Appointing Qualified Judges

On November 14, 2004 I wrote a post titled “Appointing Qualified Judges.” One of my concerns I had prior to the election about both George W. Bush and John F. Kerry as president was the likelihood that between 1 and 3 Supreme Court Justices would be nominated in the next 4 years by one of them. Realistically, I did not trust that either candidate would nominate Justices who would truly follow the original intent of the Constitution and other existing laws but rather nominate activists who would merely satisfy the base of whichever candidate would prevail.

Now it is July of 2005 and President Bush has selected John G. Roberts to replace Sandra Day O’Connor on the Supreme Court. I do not know enough about Mr. Roberts at this time to say whether or not he is a good selection. I have only begun the process of sifting through the spin from both the Left and the Right trying to find the truth about Roberts’ judicial philosophy. I am hoping that the Senate will do their due diligence by asking the tough questions and vote based on whether Roberts respects the Constitution and established laws or not. Of course I know this probably will not be the case; it seems that the debate will degenerate into a debate over whether or not SCOTUS may someday overturn Roe vs. Wade (what most people do not realize is that even in the unlikely event that Roe would be overturned, abortion would not automatically become illegal but would be decided on a state-by-state basis). My concerns are much bigger than one single issue which frankly, I am sick and tired of being such a big part of the national debate (on both sides).

That being said, here is my original post about the litmus test which I believe should be applied to Roberts and all other judicial nominations.

Appointing Qualified Judges
Now that the 2004 election is over, we can return to debating substantive issues again. No more of this discussion about who served where and how during the Vietnam War. No more controversy over who really won the election; fortunately President Bush won handily with both the electoral and popular vote. We no longer need to worry about a Kerry administration outsourcing our national security to the United Nations to meet some sort of ‘global test’. What we do need to worry about is the make up of the courts; one area that concerns me no matter who is president.

Conservatives often complain that liberals try to get their way through the courts. The argument is that liberals are not winning elected office so the only way they have any power is through a ‘liberal’ court. Conservatives also have this false notion that the court should follow the will of the people. They could not be more wrong on this. Judges are supposed to rule in accordance with the Constitution, not with what is popular at the moment. The Bill of Rights specifically prohibits certain rights from being voted away: freedom of speech, right to bear arms, protection against unlawful search and seizure, etc. The founders of this country were very wise to have federal judges appointed to lifetime terms rather than be elected. The founders were concerned that judges would try to appeal to the majority rather than interpret the laws already on the books.

Because judges tend to be around a long, long time, it is important to have judges who will fulfill their role in the proper fashion; this is where the principle of checks and balances comes in. Some conservatives argue that President Bush earned a mandate to appoint the judges of his choice and that the senate should approve of his appointments because of this mandate. Again, wrong, wrong, wrong! Not everyone who voted for Bush necessarily agreed with every one of his positions; the same could be said about Kerry’s supporters. It is the senate’s duty to review the qualifications of each appointment to the cabinet and the judiciary. Each senator is duty-bound to his or her constituents and personal beliefs as to whether the appointee is qualified for the post. It would be irresponsible for a senator to allow the president to always have his way because of some perceived mandate.

Senator Arlen Spector of Pennsylvania has come under heavy fire from some of his fellow Republicans because of concerns over whether he will allow certain judicial appointees out of committee. He is seen by some as not being a team player. Senators are not supposed to be team players but many of them unfortunately are. Conservatives have not forgotten how Senator Spector railed against Reagan’s appointment to the Supreme Court, Judge Robert Bork. Fortunately, Judge Bork failed to be appointed to the Supreme Court because of controversial opinions he had written earlier in his career. The most disturbing of Bork’s opinions was his views on the first amendment; both how he viewed the establishment clause (separation of church and state) and his view that only political speech is protected by the first amendment (Vieira & Gross, 1998). Judge Bork believed that art, literature, pornography and all other forms of speech, which were not political, could be censored by the government! Regardless of what his other constitutional views may have been, this in itself disqualified him from the highest court. Think I’m wrong? Let’s take a look at the first amendment as it is written in the United Sates Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
I am no legal scholar but I think I understand what “Congress shall make no law…abridging the freedom of speech…” means. Unfortunately, politicians on both sides of the aisle have abandoned their obligation to protect the constitution. Whether it’s a bi-partisan law regulating campaigns (campaign finance reform), the creation of the Federal Communications Commission, or others who pass more stringent gun control laws, we deserve judges who will strike down these unconstitutional measures, regardless of what the majority wants.

All judges, especially if appointed to the Supreme Court, should pass this litmus test:

· Does he or she believe there is a wall of separation of church and state implied in the establishment clause of the constitution? If not, this judge should not be appointed.

· Does he or she believe the first amendment applies to all forms of speech as long as the speech does not provoke a ‘clear and present danger’ to others? If not, this judge should meet the same fate as Mr. Bork.

· Does he or she believe the right to bear arms is an individual right not a collective right? If not, the president should not appoint, the senate should not confirm.

· Does he or she believe the constitution provides a right to privacy implied in the fourth, fifth, and ninth amendments? If not, the appointee should provide a satisfactory explanation to meet senate approval.

This of course is a minimum standard; certainly there are other criteria that should be met. Having judges that pass this litmus test should not be too much to ask (but it probably is). Hopefully President Bush will appoint such individuals and overlook candidates who have a judicial philosophy similar to that of Mr. Bork. If not, we must hold out hope that the senate will do its job, upholding the constitution, not bowing to the edicts of a political party or the tyranny of the majority.

Reference:Vieira, N. & Gross, N. (1998). Supreme Court appointments: Judge Bork and the politicization of senate confirmations. Southern Illinois University Press, Carbondale, IL. Retrieved November 14, 2004 from


Blogger T. F. Stern said...


I wish someone would read your list to those on the Senate floor, kind of a reminder of what they are SUPPOSED to do. It makes me sick with all the back stabbing and partisan puke.

10:00 PM  

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