Judicial Appointments, Litmus Tests, Article VI, and Torcaso (need your opinions here)

jmstein7

[jmstein7]

Judicial Appointments, Litmus Tests, Article VI, and Torcaso (need your opinions here)

 

I’m sure that I’m not the first to come up with this, but I have a legal theory that I would like to run by my fellow FReepers. Your opinion is invited.

 

Article VI of the Constitution reads, in relevant part, “. . . no religious test shall ever be required as a qualification to any Office or public Trust under the United States.”

 

In Torcaso v. Watkins, the Supreme Court stated:

 

“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs” (emphasis added). Torcaso v. Watkins, 367 U.S. 488 at 495.

 

In utilizing a Roe v. Wade litmus test as part of the Advice and Consent process, Democratic Senators are forcing judicial appointees who are Catholic, orthodox Jews, or religious Christians to profess a disbelief in their respective religions, which forbid the practice of abortion, or face rejection. The Supreme Court, in Torcaso, has expressly forbidden such practices as unconstitutional.

 

The Democrats might respond by saying that nobody is forcing these nominees to take a public office that might require professing a disbelief in certain religions. However, the court in Torcaso

further stated, “[t]he fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution” (emphasis added). Id at 495-496.

 

So, the voluntary nature of seeking a particular office does not bar a religious judicial nominee from seeking an office and thereby allow the Senate to impose unconstitutional criteria – e.g. abortion-based litmus tests – on such nominees.

 

Any thought or comments on this?

[jmstein7]

Abortion BUMP, pro-lifers!

[Ff--150]

Better yet, go to Google and research the missing 13th Amendment. The judges are honored and are therefore noble. Go to court or serve on a jury and refuse to call the judge "Your Honor" and see where you will be eating your next meals.

[templar]

Any thought or comments on this?

I doubt that this would aply to anything other than legislation. Otherwise the coruts would be ordering individual senators to perform or not perform their specific actions (advice, approvals) in spite of their conscience and judjments. this would be basically ordering the individuals involved to be secular and ignore any religious consideration they might have (presumably a part of the reason the electorate they represent elected them). Seperation of powers.

[c-b 1]

Report for jury duty with a pocket Constitution sticking out of your pocket, and see how long it takes to get rejected.

[templar]

Go to court or serve on a jury and refuse to call the judge "Your Honor" and see where you will be eating your next meals.

When I'm in court for any reason I generally address the Judge as Sir. Never had any problem. Your Honor!! sounds much better in court than Sir! when raising objections or otherwise attracting the attention of the Judge though.

[jmstein7]

No. Actually, Torcaso deals with requirements for holding a state office in Maryland, not legislation, and it is on point. . .

Case summary (Torcaso):

Mandamus proceeding brought to compel the issuance of a notary commission to the petitioner who refused to declare his belief in the existence of God as required, as a test for office, by the Maryland Constitution. From an order of the Circuit Court for Montgomery County, Maryland, dismissing the petition, the petitioner appealed. The Court of Appeals of Maryland, 223 Md. 49, 162 A.2d 438, affirmed, and the petitioner appealed. The Supreme Court, Mr. Justice Black, held that the requirement of declaration of a belief in the existence of God, as a test for office, invaded the freedom of belief and religion of the petitioner, in violation of the First and Fourteenth Amendments to United States Constitution.
Reversed and remanded.

[jmstein7]

BTTT!

[templar]

No. Actually, Torcaso deals with requirements for holding a state office in Maryland, not legislation, and it is on point.

"“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs” (emphasis added). Torcaso v. Watkins, 367 U.S. 488 at 495."

This ruling deals with the official actions of the State or Federal Government. The use of the word force is critical to the meaning of the ruling as well. It does not, nescessarily and as stated, extend to individual senators personal evaluations of a candidate under advice and consent. My guess is that it would be dismissed on this ground in the court of origination and that appellate review of the dismissal would be denied. One never knows though. With the right Judge and excellent argument there is a possibility of getting the ruling extended ot the Senators. I think I would want to find a whole bunch of tons of other case law in support first, before trying. Case law that would support the court overriding the privelege of the senators in acting in good conscience in representing their constituency more so than in just the extension of the ruling to the Senators individually. This may be more of a jurisdictional matter in the initials hearings than anything else, IMO (and I'm not a legal professional so take my opinions with a grain of salt).

[TheBattman]

The only "litmus" test that I would be in favor of is a history of close adherance to the constitution and it's ORIGINAL INTENT, as clearly expressed by those who composed that document. Also, does the perspective judge have a history of trying to write legislation from the bench (or support such activity)?

The fact that most conservative judges are Christians should come as no surprise. You don't have to use religion as a test - just use the candidate's record to speak for itself.

[templar]

Report for jury duty with a pocket Constitution sticking out of your pocket, and see how long it takes to get rejected

Last time I was called for Jury duty, I took a bunch of FIJA flyers in with me. In the waiting room for prospective jurors the court had a table with numerous pamphlets explaining the jury system and a citizens jury obligations. I just placed the FIJA flyers on the table along side the other pamphlets before I signed in. I noticed a number of prospective jurors take some of the FIJA flyers along with the other pamphlets.

That's was about 5 years ago. Hmmm ... I used to get called up about every year or eithteen months. I haven't been called in around 5 years now. Maybe the population has grown enough that they don't call people as often?

[jmstein7]

I'll take a look on Westlaw. I was pretty excited to find this, and it could be a good starting point.

The other issue is standing. Who would have to bring suit? The nominee? The President?

[templar]

The fact that most conservative judges are Christians should come as no surprise.

Probably has something to do with honesty.

[templar]

Who would have to bring suit? The nominee? The President?

that could be an interesting question. Both the nominee and President could probably do so. I think that any Senator would have standing since it affects his right to vote on the candidate (but I seriously doubt any Senator would dos so considering the political consequences); by extension, any voter might be able to make a case for having standing to sue since it is directly affecting his Senators ability to vote (although a problem might arise with the Senators representing the States and not the individual voters). From a purely research standpoint, I find the standing to sue to be more interesting than the case itself (finding a way to give every voter a standing to directly sue the Congress for either action or inaction would be interesting). BTW, are you familiar with validating the results of your case research (Shepardizing)?

[jmstein7]

Yeah. It's good law with no negative indications or citation history.

Clinton and Schumer are my Senators. I'd love to haul them into court :) All the more reason to keep looking for a cause of action where I would have standing :)

[jmstein7]

A cause of action where a constituent has standing would have to be "found" in, I think, Article IV, Section 2, Clause 1; Article IV, Section 4 (if a way to apply it to individuals is possible); possibly, again, in Article VI, Clause 3; Amendment I; etc.

[William Terrell]

All the old Writs are still live and usable. Extraordinary remedies are part of our system of law. The Court is activated by the issue, not the form.

A Writ of Mandamus looks like it was made for the issue.

"A writ of mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, officer, corporation, or person, requiring them to do some particular thing therein specified, which appertains to their office or duty."

The Writ of Prohibition is the same type of extraordinary remedy, but to restrain action in excess of legal aurhority. I think one or the other would lie. I'm not a lawyer, though.

If you're interested, this is the contents for the petition.

1. The name of the Plaintiff (petitioner). When proceeding as a plaintiff, the effect is that one has a couse of action and has suffered a tort.

2. The name of the Respondant(s) and his office.

3.The facts of the case.

4.That the Respondant(s) was made aware that their action is mandated.

5. That the Petitioner's notice was ignored and /or refused.

6. The law which mandates the Respondant(s) from commiting the act must be cited.

7. The Petitioner must show that he have a clear legal right to the perition.

8. That no other "plain, speedy, and adequite" remedy exists (the Petitioner has no other remedy and is therefore seeking for an extraordinary one).

9. The relief demanded must be explicit.

10. The Applicant must show if he is seeking for a peremptory or an alternative writ.

11. A return must be sought.

The individuals holding office using these religious tests is breaking the law. I can't see how that fact would not remove the object a court has in "deciding a political question".

[jmstein7]

bttt!