When You Can't Win, Change The Rules

When Senator Leahy admonished his fellows to end the "judicial vacancy crisis" and confirm the President's judicial nominees, Charles Schumer wasn't a member of the U.S. Senate. So perhaps he can be excused for not knowing of the Judiciary Committee chairman's [formerly] adamant opposition to throwing obstacles in the way of nominee confirmations. As Tuesday's Administrative Oversight & the Courts Subcommittee hearing clearly showed, Senator Schumer is leading the charge in the opposite direction, trying to cobble together something — anything — that will justify blocking the President's judicial nominees.

Earlier this summer, Schumer chaired the first in a series of subcommittee hearings designed to provide cover for the Democrats' obstruction strategy. That hearing — innocently billed as an inquiry into whether Senators could get away with using ideological litmus tests when evaluating candidates for the apolitical federal bench — concluded that open and honest consideration of ideology benefits the Senate, nominees, and the Judiciary itself. Or so Schumer said on Tuesday.

This test for someone's notion of ideological purity would keep the courts "balanced," with judges who hold the views of the majority of Americans, Schumer added, apparently confusing our legal system with some sort of reality show where popularity is what truly matters.

Schumer said he held this week's subcommittee hearing to answer the question "on whose shoulders should the confirmation burden rest?" Meaning, must nominees prove to Senators why they should be confirmed . .. apart from the traditional showing of qualifications, temperament, and fidelity to the law?

This was really the ideological litmus test revisited, albeit with a twist. By trying to justify a litmus test, Democrats are looking for excuses to vote against qualified nominees. By shifting of the burden of proof, they're trying to excuse voting against a qualified nominee who won't answer their political questions.

At the hearing, Schumer offered several examples of questions he'd like to ask nominees, Supreme Court nominees in particular. What is your view of the First Amendment, especially relating to "campaign finance reform?" What is your view of the Second Amendment, especially relating to gun licensing and registration? What is your view of the "right to privacy," especially relating to abortion?

When one witness, Professor Ronald Rotunda of the University of Illinois, said those were inappropriate questions that nominees shouldn't answer, Schumer claimed to be baffled by that conclusion. I made these questions general enough, he insisted. If we can't ask questions like that, why should we even have hearings?

Another witness, Catholic University's Douglas Kmiec, explained in his statement that "undertaking to make nominees carry a type of political burden of proof will over time merely invite a subservience of mind and personality that is contrary to an independent judiciary."

But that's what Democrats like Schumer really want: a judiciary that holds ideology above the rule of law; one with judges who are willing to hand out a sort of political IOU to Senators as the price of confirmation.

When President Bush sent his first eleven nominees to the Senate, he said: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase . . . James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference."

It's a concept that frightens Senators who can't seem to grasp the idea that, for example, the Constitution actually limits congressional power.

Last spring, forty-two Senate Democrats attended a weekend retreat focused on battling Bush's judicial nominations. As one attendee informed the New York Times, Senators were told it was important to "change the ground rules" of confirmations, and that "there was no obligation to confirm someone just because they are scholarly or erudite."

No matter what Schumer says, or how calmly he manages to say it, this isn't about fixing a tarnished confirmation process. It's about making it worse. When faced with qualified and experienced judicial nominees, changing the ground rules is all that the Democrats have left.

As Tuesday's hearing ended, there was an interesting exchange about the expectations Americans have of judges. Schumer opined that most Americans accept that political ideology plays a role in how judges decide cases. Douglas Kmiec answered that judges should aspire to uphold the rule of law, and that in reality, most Americans expect judges not to let politics enter the process.

"I'm from the Catholic University of America," Kmiec replied calmly, "and I admit sin, but I don't aspire to it."

If only one respected jurist -- just one, Lord, that's all I ask -- would say in public that the function of the judiciary is not to interpret the law, but to apply it as written, we could set this country back on its Constitutional course. But judges are just as enamored of power as other office-holders.

Nowhere in the Constitution is the power to "interpret" the law awarded to anyone. The notion of "interpreting" the law as if it were some Delphic formulation that only specially trained experts could understand would have horrified the Founders; it's an affront to the whole idea of objective law that can be known in advance by all men.

If twelve ordinary citizens chosen at random cannot agree on the meaning of a law, then the law is unConstitutional by reason of vagueness, by the original meaning of the term, and therefore void.

Shout it from the rooftops!

Freedom, Wealth, and Peace,
Francis W. Porretto
Visit the Palace Of Reason: http://palaceofreason.com

"Schumer claimed to be baffled by that conclusion. I made these questions general enough, he insisted. If we can't ask questions like that, why should we even have hearings?"

See, he's not so dumb after all! Why indeed!

If twelve ordinary citizens chosen at random cannot agree on the meaning of a law, then the law is unConstitutional by reason of vagueness, by the original meaning of the term, and therefore void.

Your logic is airtight, the phrasing is beautiful. Mr. Porretto, I will be quoting you on this. It is a powerful argument against much of what afflicts us.

If only one respected jurist -- just one, Lord, that's all I ask -- would say in public that the function of the judiciary is not to interpret the law, but to apply it as written,

I doubt you will find many who say this because it isn't true. Judges have to use "judgment". That's why we got 'em. Thus it was, thus it will hopefully always be. Shantih.

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