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
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?
Another way of putting it:
"Mr. Protojustice, do you know the difference between a dependent clause and the subject of a sentence?"
"Of course, Senator."
"Then, would you please diagram the following and explain its meaning: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' ?"
Another way of putting it:
"Mr. Protojustice, do you know the difference between a dependent clause and the subject of a sentence?"
"Of course, Senator."
"Then, would you please diagram the following and explain its meaning: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' ?"
"Certainly Senator. It means that the individual right can be severely regulated, & certain types of arms prohibited.
-- I cite as proof the recent Justice Dept report prepared by the current administration."
It's called (hyphen inserted for emphasis) pre-judice (prejudging the outcome of a specific case). When a decision has been made during the course of a previous case ("in the line of duty", as it were), the principle doesn't apply.
That is why I don't think that commenting on Kelo would represent "prejudice". The case has been decided. There is no more information available for consideration nor is there any information hidden. A nominee's decision on such a case is no more an impediment to future fairness than the decisions reached by those on the court.
But the commenter did not evaluate all of the evidence. When a justice looks at a case, they see the whole of the submitted evidence. Someone on the outside doesn't see near as much.
JMHO - I'm an engineer, not a lawyer.
Thanks for a reasoned response, BTW.
For life? Is a justice brain dead? No, only half dead. Can keep his (her) job. Pilots of jet airplanes get retested frequently. Reconfirm justices every decade or so. More frequently after 75.
Favorite liberal sport, throwing out pieces of the Bill of Rights. Ranks behind throwing out God, but ahead of throwing out the Ten Commandments and about even with throwing out the Magna Carta.
Besides, on a case that sharply and closely divided, there's always the chance that the Court will overrule the Kelo case. In either event, a potential Justice who expressed the opinion that he/she would uphold/reverse Kelo, would disqualify that Justice from serving on that future case.
Trust me, it's a huge no-no.
John / Billybob
My point is that there is a difference between answering a question regarding a hypothetical case (or a real one) which might reach the court in the future versus expressing an opinion in agreement with the dissent in a case already decided. We have over two hundred years of precedent by prior Supreme Court decisions. Is it the case that no opinion can be stated regarding the correctness of any such decisions without being bound to recuse oneself in a similar case?
The Dred Scott decision was a federal affirmation of the power to return a slave to his owner in a slave state. Is that decison out-of-bounds for comment? The issue of ownership of "property" having crossed state lines is still liable to come up.
From a practical point-of-view I can see where an appointee might use the claim that he wishes to avoid a future obligation to recuse in refusing to answer a question. Isn't a Supreme Court Justice the final arbiter of when he must recuse, short of impeachment? Are there any examples of a Justice recusing on the basis of opinions stated during confirmation, apart from some actual conflict-of-interest or prior direct involvement in a case?
And finally, thanks for taking your time to respond. My future degree from UFR (the University of FreeRepublic) will be highly prized.
There is, of course, a major difference between "How would you vote on [BLANK] case?" And, "What is the role of a judge in the American system of government? (Please refer to the Constitution and the Federalist in your answer?"
The first question is always out of order. The second question should be mandatory for all who seek to be judges of Justices today.
John / Billybob
dat's funny!
justice ginzburg wanted to eliminate mother's day and father's day, yet she was over whelmingly approved by both libs and pubbies.
Excellent!
No, to make a short story even shorter, five Justices ruled that the town of Kelo had this right and four Justices ruled as if the 14th Amendment somehow applied to the 5th, which it didn't until 1897. In any case, all nine Justices ignored the Constitution and the original intent of the document. It was not meant to apply to the states. If any of the four Justices that voted against Kelo would have used federalism as an argument then I may have had some respect for their decision
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