- Reason Awakes -

Judicial Appointments

 

One of the most important roles of the President and the U.S. Senate is the nomination and the confirmation of candidates for the Supreme Court. 

Obviously, issues of judicial temperment and knowledge of the law play a role in these decisions, but in recent years the controversy tends to focus on the candidates judicial philosophy. More specifically the support for the nomination on each side tends to hinge on whether the candidate for the court supports an "originalist" or "living document" interpretation of the Constitution.

We believe that it is central to America's character, that we are a constitutional democracy. By a constitutional democracy we mean that we are bound by a legal document, that protects minority rights, and that cannot be changed except by the consent of a super majority of society.

For America to be a true constitutional democracy the document has to be binding. It has to be binding, even if a majority of  society wants it not to  bind. We are suspicious of the "living document" philosophy of constitutional law because it tends to turn the Constitution into a blank piece of paper for the justices to write on. Having said that, there is some merit in the argument that the framers of the constitution could not have anticipated everything about modern society and there is room for at least some reading between the lines of the document to apply it to modern circumstances.

To make our point clearer lets take an example, the death penalty.  The constitution bans "cruel and unusual punishment."  Should this include the death penalty? As indicated above, we believe that the circumstances for applying the death penalty should be significantly restricted. But we believe that this should be done through legislation and not by Supreme Court edict. The framers of the Constitution were clearly aware of capital punishment and if they had meant to ban it they could easily have said so. If someone wants to constitutionally ban the death penalty, the proponent of that action needs to take on the challenge to amend the Constitution.

Conversely, modern technology has created a wide variety of ways for the government to invade our privacy. We believe that the framers of the Constitutional right to be protected against "unreasonable searches and seizures" could not have conceived of these technologies and that the Supreme Court has the responsibility to define "unreasonable" in our time.

In our mind,  the Senate should not hang its consent on whether the candidate believes in "originalism" or not. Virtually no one believes in a completely pure theory of originalism. The question should be, does the record of the judicial candidate suggest that they believe the Constitution is a truly binding document. Do they feel compelled to actually find a basis in the document for their opinions or do they seem to feel free to amend it from the bench. To us the best evidence for a candidate's respect for the binding nature of the Constitution, would be a history of decisions that run counter to the preferences of the judge but are nevertheless compelled by the Constitution or the law in general.

We believe it is fair to ask judicial candidates how they would vote in hypothetical situations and expect a straight answer. We believe it should be considered a reasonable basis for rejecting a candidate that they refused to answer these questions. Hypotheticals are just that, cases that come before the court will inevitably differ in some way from the hypotheticals and the justice would, of course, be free to change his or her mind. Candidates for such a crucial position, with life-time tenure, should not be free to evade answering legitimate questions designed to illicit their judicial philosophy.

We want to be perfectly clear, this is not a hidden way of fighting over Roe v. Wade or the courts decision on same sex marriage or gun control.. We support accepting those decisions as settled law. What we don't want is for the debate over those decisions to, perpetually, drive the kinds of candidates that can be appointed to the court one way or the other.

 

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