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
Enjoy.
John / Billybob
If original intent was limited government, how can we believe Bush will put in an original intent judge.
Bush has grown the government in size and spending virtually unknown in history.
Would he appoint a judge that would rule all his programs are unconstitutional?
When you read the Chief Justice's decisions on "liberal" issues based on stare decisis, you will understand that the Court moves slowly, not wham-bam, thank-you, ma'am.
Get the right jurisprudence on the Court, and in time the Court will straighten itself out. Focus on nominees who will say in advance they will reverse a given Court decision, and you are on a fool's errand. Even if such Justices were confirmed, they would be disqualified from sitting in the very cases you are most concerned about.
Sometimes at the pool table you have to use a two- or three-rail shot. Same applies to Supreme Court jurisprudence.
John / Billybob
Excellent.
You miss my point. Even if Bush nominated another Judge bork, only 30 years younger, and did that three times in a row, the resulting Court would not find all the bad decisions of the Court in the last 50 years, unconstitutional on the spot.
True, in fact I made that point lask week. Any new court could only rule on cases wroking through the system to its level and a new law suit would have to be started to change anything.
Thanks, John. Good post.
Another important thing the judges do which has as much impact as the rulings they make, and perhaps is effected more directly by their attitudes toward the constitution, is the decison whether or not to hear a case.
Great article.
There is no real reason to ask a nominee ANY questions. That is a Rat tactic and valueless if you expect an appointee to rule on questions of law and not have to recuse himself (as you mention). These nominations should be about the record of judicial rulings. If we appoint a judge whose promise is to be conservative but whose record is unclear, we are wasting an appointment. The appointee must be a proven conservative jurist or a verifiable Constitutionalist.
There must be no more Souters.
I don't understand this.
Every member of the Court which decided Kelo is in the same position. They reviewed the facts, heard the arguments, and came to a decision. How is the fact that a nominee does the same thing when questioned by the Senate act as a disqualifier when having actually ruled in the original case, whether concurring or dissenting, does not?
Potential Third Question: "... and you feel your previous work experience as an Air America talk show host qualifies you for this far more intellectually demanding position how, precisely...?" :)
"I's too old, n too cantancerous, ta be a Supreme."
BALONEY! You've passed MY litmus test. Now go get your robe on. Take the seat of the bitter old hag there, Ruth such-and-such, never mind how she might fuss or throw a shoe at you....LOL
nice article, John. I agree that the qualifications are simple. THe only other one I can think of is How long are you going to be around wanting to do this job? We need youngish conservative people.
Sadly, O'Connor has not resigned. If she had resigned there would be a vacancy. As it is there is no vacancy.
She has handed in a resignation that she says is effective on the confirmation of her replacement by the Senate.
Effectively, she has thumbed her nose (again) at the Constitution which gives the president recess appointment power to deal with any Senate's inability to effect a timely consent to a nominee. With her non-resignation and non-vacancy, she has very "cutely" taken that option away from the president.
Perhaps the president would never have used it, but her disdain for the constitution includes making herself bigger than it's provisions and intent.
Were I president Bush, I wouldn't have accepted her letter of non-resignation.
For a Supreme Court appointment, the two questions are: Do you understand the Constitution? Will you enforce the Constitution?
...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.
The definitive question, imo..
Do you agree that the 2nd Amendment is a Law of the Land, - and therefore must be supported, as written, by all judges & officials, -- notwithstanding any State laws to the contrary?
How would you answer, Billybob?
Excellent points, neat presentation. The "old and cantacerous" leads me to the following: As much as I admire him, Scalia is not a great choice as Rehnquist's replacement. Chief Justice must moderate between the Associates, referee as it were, and Scalia is more valuable as a free agent. I think when that opens up, put forth Thomas. Let the Dems take heat for denying the first black Chief in history, while trying to make the case that a man who sailed through his initial confirmation hearings is suddenly too radical.
Yes, I know we are now considering O'Conner's replacement, but if we do not gear up for Rehnquist, we will be playing catch-up. To follow your pool analogy, if you ain't thinking three shots ahead, the other man is about to take yo' money.
Aside to William Tell, questions on specific cases and issues are inappropriate. Imagine, if you will, you are charged with, say, DWI. Your hearing judge is also head of the local MADD chapter, lost a relative in to an accident involving a really drunk driver, and is outspoken on maxing out penalties for DWI convictions. If you are charged after two glasses of wine and you have the sense God gave a doorknob, you are going to request recusal, or failing that, change of venue. Same principle.
Interestingly, New Republic editorially supported Kelo v New London and chastised Thomas and conservatives in general, in that we were being inconsistent in opposing "activist" judges, since the dissent would have reversed 50 years of rulings expanding the definition of "public use". By that standard, they would have opposed a reversal of Dred Scott.
I know we are now discussing O'Conner's replacement. To follow your pool analogy, if you ain't thinking three shots ahead, I'm going to take yo' money.
By the way, re Kelo: will it be used now as a precedent, and is it likely that the Court might rule differently on a similar future case?
Please comment, if you will, on this quotation from Lincoln's First Inaugural:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
"Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes." - Abraham Lincoln
(Underlining added for emphasis)
Suffice to say, I agree.
Congressman Billybob
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.