Posted on 07/14/2005 1:19:22 PM PDT by Congressman Billybob
Two of my ministers have regularly conducted “mini-sermons” for the children in the church. When they do that, they demonstrate a universal truth. No one really understands a subject until he can explain it in plain English to a ten year old. I think the question of appointing new Justices to the Supreme Court cries out for that treatment. The Fry Cook Rule may provide the answer.
One member of the Supreme Court has already resigned, Justice O’Connor. Three others may not be long behind her, Chief Justice Rehnquist, and Justices Ginsburg and Stevens. I won’t repeat what I’ve said before about the age and infirmities of various Justices. Suffice to say, for that hypothetical ten year old, when a President appoints four new Justices to a Court that only has nine members, the effects are profound. And the effects will last a long time, since Justices are appointed for life.
So, it matters a whole bunch if President Bush has a philosophy about what Justices ought to do on the bench, and if he demonstrates that thinking through his appointees to go on that Court.
A brief digression’s in order about the praise being heaped on Justice O’Connor these days by everyone who can walk and chew gum, regardless of their politics. Two weeks ago I covered the difference between the original O’Connor and the current-day O’Connor. The fact that everyone is now praising her has nothing to do with the two different O’Connors, but instead follows the Julius Caesar Rule.
As Shakespeare pointed out by the magnificent speech he wrote for Mark Anthony at Julius Caesar’s funeral, it is always safe to praise dead politicians. No matter how badly you misquote them or abuse their memories, you can be certain they will not rise up and contradict you. Yes, I know Justice O’Connor is not physically deceased. But politically she is “an ex-parrot; she has joined the choir invisible.” (From a career standpoint, of course, quoting Monty Python.)
Many forests have given their lives, and enough electrons died to light up Lithuania, to publish or broadcast mindless blather about the appointment of new Justices. Most of the authors of this twaddle are dumb as a hoe handle about what it means to have a written Constitution, and therefore what it means to serve as a federal judge under that document. A few do know those subjects, but are lying about them for political purposes. Here is the straight skinny.
The Fry Cook Rule
You are Manager of a McDonalds, hiring a new fry cook. You need answers to two questions: Do you understand the job? Are you willing to do the job?
For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?
Now that we’ve clarified the Rule for appointment, we should explain why it’s important. As most of you know, on 23 June the Court decided the Kelo case, concerning eminent domain against private homes in New London, Connecticut. To make a long story very short, five Justices ruled that when the Constitution says your home can be taken only for “public use,” it really meant the government can take your house and turn it over to some other private owner who will build a bigger building and pay higher taxes.
Four Justices, a minority who can only complain, protested vigorously that the Court was savaging the Constitution and throwing out one of the key protections of the Bill of Rights.
Now, it isn’t proper to ask a prospective new Justice a bald-faced question, “Do you think the Kelo decision was bad, and should be reversed?” Any nominee who answered that question would have to disqualify himself/herself when a new case on that issue found its way into the Court. On the other hand, a Senator smart enough to ask the right questions (yes, Virginia, there are a few smart and honest Senators), could inquire whether the nominee agrees with Madison, Hamilton and Jay in the Federalist. He might even ask the nominee to explain what Thomas Jefferson meant when he referred to the federal judiciary as “the most dangerous branch.”
In short, it shouldn’t be too difficult to apply the Fry Cook Rule to any nominee for the Court. A few well-crafted questions will ferret out whether he/she understands the job and is willing to do it. Whether he/she understands the Constitution and will enforce it.
There, was that so difficult?
About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. John_Armor@aya.yale.edu
CB's two questions are a good backup to one's record; and if asked correctly, would help determine if someone with a conservative record has that record because he or she believes in the original meaning of the Constitution or because he or she believes ruling conservative to be the "popular" thing. The former will tend to give us a Justice that will resist the temptation to grow in office; the latter is far more likely to turn into an O'Connor-like Lawgiver in Black.
Your last paragraph echoes my thoughts, so I'll repeat it starting with the second sentence...
I voted for him and the GOP to get constitutionalists appointed, and I'm not about to let that vote go to waste again if it doesn't happen with this appointment, which may be the most important vote on the Court we can hope for during Dubya's term. Abortion and affirmative action are just two issues where things could swing the other way with O'Connor replaced by a constitutionalist. So there must be no compromise on politics, hoping to get their vote next time, because we might not, and then this chance would not come again. There must be no affirmative action appointees from whom the best we can hope for is the occasional conservative opinion like O'Connor. And no more gambling on unproven, unknown, Souters-to-be.
"Points noted, but the fact that nobody wanted to do any digging into or questioning of Souter from Bush41 on down is precisely why we got him. Blank slates are not what we need on SCOTUS, especially now."
---We agree on this 100%. My concern with questions prior to appointment is that they are grade-A useless. A proven judicial track record is falsifiable, but nowhere near to the same degree. So the potential nominee provides answers like, "Why, yes, I am a constitutionalist!" What difference does the question make, if they've no track record on the subject? It's just as much of a gamble that they're lying.
"CB's two questions are a good backup to one's record; and if asked correctly, would help determine if someone with a conservative record has that record because he or she believes in the original meaning of the Constitution or because he or she believes ruling conservative to be the "popular" thing. The former will tend to give us a Justice that will resist the temptation to grow in office; the latter is far more likely to turn into an O'Connor-like Lawgiver in Black."
---I don't trust the answer a judge up for appointment might give to such questions, and I think they can only be used against conservatives in twisted MSM soundbites. I agree that the questions will be asked, but I fail to see the point in doing so before the Senate Grand High Committee on Conservative Lynching, er, the Senate Judiciary Committee.
If you noted the rest of my post, those questions provide a backup to the record, not a replacement for it. O'Connor had a relatively-conservative track record, but her philosophy behind it (not explored sufficiently in a rush to nominate a woman) was rather less substantial. IMHO, NOBODY without a substantial record should even be considered for SCOTUS (and those without a Constitutionalist background shouldn't get past the pre-screening at the White House).
I don't trust the answer a judge up for appointment might give to such questions, and I think they can only be used against conservatives in twisted MSM soundbites. I agree that the questions will be asked, but I fail to see the point in doing so before the Senate Grand High Committee on Conservative Lynching, er, the Senate Judiciary Committee.
As imperfect as the DemonRATs and the Prestitutes of the Left-Stream Media are, and as much as they pervert the idea of advice and consent, the process of advice and consent demands that basic questions (limited to competency and qualifications; e.g. the Fry Cook test) be asked. That the questioning will go far beyond that, and that the answers will be twisted beyond recognition is as reprehensible as it is inevitable.
However, this isn't 1986 when the LSM had a complete monopoly on the news cycle and successfully buried Bork, or even 1991 when the only conservative voice was Rush. That we are talking about this instead of hoping against hope that Rehnquist could live until we clean the RATs out of the Oval Office is proof. On the other hand, we are talking about Senators, who still are unduly influenced by the Presstitutes rather than by their constituents that see past them.
The more we trade posts, the more I am certain that we agree wholeheartedly here. I simply think that the Republicans should force written questions, at most, that those should be subject to approval from the entire committee, and then the Republicans should force an up-or-down committee vote on the basis of those, instead of continuing the travesty of a media circus that started with Bork and reached its worst when Thomas was nominated.
The whole thing is, as you describe, a perversion of the process. Republicans have the power to end it, and should.
You've hit upon the solution.
LOL. QUICK! We have to let Bill Frist know now. I'm sure he can get Arlen Specter to push this. /sarc
And as long as I'm dreaming, I'd like a triple cheese Fatburger, held by a virginal Stephanie Seymour and her twin sister, who will be waiting for me outside in my Grand National GNX custom convertible--which runs on carbon monoxide in the air instead of gasoline.
BUMP!
When I saw "Fry Cook", I immediately thought of SpongeBob SquarePants.
SCOTUS Fry Cook "Would you like that Super-Sized?" BumP
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