Tuesday, October 9, 2012

Energion Political Roundtable: Judicial Nominations

This week our question is less policy and more legacy. Question 8 is...

One of the ways in which a president shapes the future of the country is through appointments to the judiciary, and especially the Supreme Court. How do you see each candidate shaping the future of the court, and why is this important? (If you are supporting a particular candidate, focus on that one.)

Bills can be overturned, executive orders rescinded but a judicial nomination, especially to the Supreme Court, has lasting impact on our nation that is hard to measure. While it gets almost no play in our here and now, "what is in it for me" society, the way a potential President views the court should be a critical issue for voters.

Who Will Join This Group?
One of the most powerful functions of the President, an overlooked power that has far a longer impact on shaping American history than pardoning a turkey on Thanksgiving, is the Constitutional role of appointing members of the Federal judiciary and especially choosing replacements for the Supreme Court.The next President will quite possibly need to replace a Supreme Court justice. Four of the current justices were born in the 1930's and are obviously near retirement or death. Replacing even one of them could could an enormous shift and since two of those Justices (Breyer and Ginsburg) are solidly liberal along with swing vote Kennedy, chances are good that the majority on the court could move from a split between conservatives and liberals to a solid conservative majority. Conversely a liberal President could replace these aging justices with far younger justices who will serve for many decades to come. The importance of judicial nominations should not be underestimated.

Exhibit A for the importance of the Supreme Court is the legal monstrosity known as Roe v Wade (and yes I have read the entire decision). In this perversion of the Constitution, the Supreme Court not only overturned a Texas law but created whole cloth a "right" for women to abort their children. This decision has led to challenge after challenge, it has contributed to the poisonous circus of confirmation hearings and worst and unforgivably led directly to the murder of tens of millions of innocent children.

Unfortunately, thanks to that paragon of honesty and virtue, the late Senator Ted Kennedy, and his shameful attacks on Robert Bork, we now have a system where people put forth as the most qualified legal minds who will occupy a lifetime seat on the highest court of the land somehow have no opinion and indeed have never considered any actual legal cases based on their answers to the circus known as the Senate Judiciary Committee. Like so much of our political world, nothing substantive is debated and we get  lowest common denominator discussions instead of dealing with the real, "big issues" of the nation because everyone is terrified of saying something frank and honest and then being skewered for it for the next news cycle. Because of this unfortunate reality I don't see any real hope of future nominees that will speak honestly about the issues.

So this is a pretty straightforward one. The next President should nominate judges that will operate strictly within the framework they have been given. Not creating laws or "rights". Not interfering in issues that the Supreme Court has no business in. If an individual wants to write laws, let them run for a legislative position. A Supreme Court Justice, really any Federal judicial nominee, should be painfully aware of the limits in their role.

That sounds great. What does that mean? Well we need to go to the Constitution to answer that question because that is where the framework for establishing the Federal judiciary is found. In Article III, Section 2 of the Constitution we see the powers granted to the judicial branch.

Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State ; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. 

What is most interesting in this listing of powers is that what we commonly think of as the primary function of the Supreme Court, i.e. judicial review, isn't explicitly stated and certainly not really implied. Like most powers of the Federal government the Federal judiciary was designed as a home for issues that could not be decided at the state level: treaties, case involving ambassadors, disputes between states or citizens of different states where a neutral court was required. One other area was placed in this jurisdiction, the crime of treason. When you compare that listing to the myriad ways that the United States Supreme Court gets involved in our lives, it should be apparent that we have a major problem. Every law that is passed in this country at some point is subject to review by the Supreme Court and likewise subject to being upheld, reversed or modified for any or no reason at all.

All that to say that, although cliched and overused, nominees should be strict Constitutionalists. That means that they understand and respect the Constitution and the means by which is it applied and how it is supposed to be altered (i.e. via amendment, not judicial fiat). Unfortunately we don't have much to work with. Of the major and semi-major candidates, only Mitt Romney has a specific section dealing with the courts (see here). We have a pretty good idea of what President Obama thinks of the Supreme Court and it is definitely the wrong direction. Gary Johnson doesn't speak directly to the issue but given his stance on limited government you can certainly infer what he would do. The court issue really comes down to two visions, a vision of limited scope for the Supreme Court and another of an activist court that sees the Constitution as silly putty to be molded and modified as the intellectual elite sees fit. Presuming for a moment that Romney would do as he says, a big presumption, a Romney court nominee should go a long way toward pulling back on the size and scope of the government.
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