Skip to comments.Do you solemnly swear... (Vanity)
Posted on 10/10/2005 8:41:37 PM PDT by pickrell
The commotion surrounding the President's two nominations for the Supreme Court illustrates far better than any other recent mediastorms the extent of the damage that has already been done to the institutions of the United States. The pundits, both theirs and ours, in their arguments about how the nominee will rule, have apparently utterly lost sight of the objective.
During the Clinton Administration the Republican Senate abdicated their sworn responsibilities to protect and defend the Constitution of the United States, when they acquiesced in the installation of Judge Ginsburg on the court. The accepted concept was that each President should be able to pick judges who will rule the way the President thinks they should, advancing the political agenda of that sitting President. Accordingly, a far left "jurist" was granted a lifetime appointment to the bench, beside a number of others, and the Senators merely averted their eyes. It was nothing new- it had been done before. It didn't matter what the oath of office required from the candidate- the oath was to be conveniently discarded immediately after the swearing-in ceremony. This was known at the time of the confirmation.
It was like watching 100 Senators taking an oath, with their hands on the Bible, swearing to put aside all political considerations, and faithfully and honestly adjudge the upcoming impeachment proceedings of the former President. The respect, dignity and moral authority of the Senate took a tremendous pounding then, in both instances. Senators en mass showed what craven perjurors they were.
Now, the nomination of Harriet Miers, under surprisingly parallel circumstances to the Ginsburg debacle suddenly has the media sitting upright in their seats and grumbling uncertainly. Pundits fire back and forth as to the predictability of her siding with them on the issues most pressing to them personally.
What has happened to the conservatives in this country?
When Judge Roberts was rightly confirmed to the bench, after examination of his warts by the American public, many felt that perhaps the day had finally come that the functions of each branch of the government could begin to be rebuilt, albeit a long and frustrating task. The reason many had that renewed hope... was that Roberts refused to discuss his personal views, professing that the personal preferences of a judge must, MUST, be laid aside entirely if the judge is to remain true to his responsibilities.
He must decide whether or not the laws passed by Congress either are, or are not, in conformance with the Constitution of the United States. His personal politics cannot be of any weight whatsoever. He takes a pledge, to defend the Constitution, in the same manner as the Marine patrolling in Iraq did. That Marine does the job in front of him. He doesn't decide what he wants his job to entail. Instead, he values his honor and the security of his country enough to put aside his views, and accomplish his mission.
The orders of a Justice are certainly much safer and easier to follow than the life-risking mission of the Marine. The Justice must read the Constitution and interpret whether the Congress, in its zeal to please a media-excited public, has passed certain legislation that violates the bedrock principles enshrined in that very piece of paper which started it all. Is it Constitutional?
When Justice Roberts refused to answer questions about his personal views, he essentially codified that his personal views not only weren't important- they weren't in fact even a consideration. Roberts set forth the novel idea that perhaps a man could reach the exaulted position of Supreme Court nominee by simply accepting that the body of government designed to satisfy the hot passions of the people was the legislative branch, after the cooling off supposedly afforded by the Senate.
Ginsburg, on the other hand, said what could be cynically purported to be the same thing at her hearings. But Ginsburg had no intention of casting off her crusades. Her willingness to step on the Constitution in order to advance her agenda was known before the "questioning" even began. The problem was that the public never knew the difference.
Roberts promise is his oath, his "agenda", that there is no room in the judicial branch for personal agendas or crusading. None. Whatsoever. Period. We hope Roberts has told the truth, and shows the same courage as the Marine, for then conservatives have nothing to fear, and liberals will head for the tall grass.
As the judiciary became more politicized in our generation, and actively began "passing its own legislation", it began to lose vitally, desparately needed legitimacy, and is devolving now into a super-legislature to be fought over in the political arena, on television, in front of the world. Idiot savant judges, who have allowed this calamity to occur by secumbing to their self-indulgent need to "right obvious wrongs", by going over the heads of the Congress, have damaged not only the power of Congress, not only the legitimacy of the Courts, but perhaps even more fatally, the acceptance by the people of the United States that the Constitution is the bedrock law of the land, and is so sacred that many of the very finest men we have ever produced in this country have laid down their lives defending it.
Each Judge-nominee to be considered, instead of being examined for his scholarship of the Constitution and his self-restraint from personal crusading in his appellate history... is now being graded for his willingness to advance the agendas of the majority of Senators.
Should conservatives wish for a judge who will rule in their favor, no matter the letter of the Constitution? We need to be awesomely careful of what we wish for. Should we succeed in packing the Court with "our boys" today, who would twist the Constitution to suit us... what guarantee will we have that they will not "grow in office" and bend the law to suit another more attractive agenda tomorrow?
Any true conservative must have faith that we, as a political party, will be most favored by a true interpretation of the Constitution, since we are the Constitution party in word and deed. Who among us feels that we would be better served by casting out the protections which, over several hundred years, built a level of prosperity unmatched in the world thoughout history.
Liberals argue that we thereby enjoy an unfair advantage if constructionist judges are appointed. The problem is they only argue that in private, when the cameras aren't around. Because they know that they daren't admit that they wish to screen out those nominees who have the integrity to faithfully execute their responsibilities.
Republicans argue that the Left has so stacked the deck in the past with left-wing idealogues that only an "affirmative action" of counterbalancing right-wing idealogues can quickly enough return the courts to balance. The problem is they only argue that in private, (and a few on Freerepublic), when the cameras aren't around. Because they know that they daren't admit their fears that a truly constructionist court may rule against them on certain issues.
Conservatives argue that the damage that can be wrought is so terrible, and the record of carnage from past courts so destructive, that they can no longer simply "take the word" of a President who increasingly seems either distant from conservative concerns, or surrounded by advisors who are. The problem is they until now only argued that in private, when the cameras weren't around. Because the country is fighting a war we cannot gamble losing due to a weakened President, because the deck is stacked against us by a liberal-saturated media which has no concern about what damage they do to the Republic, as long as they get to spite the President, and by the fact that we fear that a golden moment is being lost. That golden moment, where the House, the Senate, the Presidency- everything in fact other than a media with a shred of journalistic integrity, is in our hands. Only the Courts harbor the champions of socialism, now. But for how long?
At least, this is what we profess. What fear we have is primarily that a covert idealogue will cast her oath into the gutter after confirmation, and begin to "improve the world" to the toast of the beltway crowd.
What surely is bothering the true conservatives about the Harriet Miers nomination, is that President Bush "knows the heart of this woman and knows how she will rule". This alone should disqualify her. If she is the most qualified person for the job, she would have only but one assurance to give the President. That would be to lay a copy of the Constitution of the United States respectfully on the desk in front of him and state categorically, "I understand what controlling legal authority will determine my positions on matters of law. If you want to know my views...read this 230 year old document. In there...you will find my views."
Perhaps this is just what she has done. The President asks that we accept this. But he hasn't been clear that the qualification of this person to sit in judgement is not that she is a reliable right-winger... but rather a person intelligent enough to know that ideology has demeaned this Court and that ideology is the enemy. It is fine, even wonderful in the other two branches of government, but cannot be allowed to continue to destroy the Courts.
Certainly we will tolerate no further left-wing judicial ideologues, but we owe it to future generations to forever guard against damage to the Courts, and the country. This means not presenting nominees based upon "knowing their hearts". No greater miscalculation could be made. The only guarantee against the tyranny of the judiciary is to trust in a judiciary which actually fulfills their oaths. "... to protect and defend the Constitution of the United States..."
What is to be feared, though, is that we move to match each of their judicial left-wing ideologues with our own right-wing ideologues.
What confuses the issue, is that, for a while at least, our idealogues will outvote their ideologues, and we will carry the day. Since a right-wing ideologue will vote the same as a strict constructionist on most issues, what matters the method that we got there? Isn't it really the same? What risk?
Perhaps little, at first. Perhaps the citizenry will accept that law no longer rules their lives and that men now do. And for a while these men may not even toss out the Constitution, or cynically write new emanations into it, in order to right the boat. Make no mistake- the boat needs righting. But what we throw overboard to do it is critical.
The difference is, that if we elect enough justices like what we think Justice Roberts is, and the function of the Supreme Court of the United States returns to what it was originally designed to do by some of the brightest men who ever walked the streets of Philadelphia with shoulders weighed down in responsibility to uncounted succeeding generations, we cannot fail to return the country to reason and morality, and keep it there.
You would argue that no guarantee exists even with apparent strict constructionists. If so, you aren't thinking about the political generation to come. For the next generation to see a Court shake off the delinquencies of the past, and again become a body of law, and not of politics, would change the acceptance of the public of the previous disregard for the true "controlling legal authority" of this country, their birthright, their Constitution.
Those who in future would deviate from their oaths and save the whales... would experience the thunder of public condemnation from the vast majority of an educated public... not just from the party on the losing end of the judicial edict. They may not bend from their responsibilities... but they can, and if necessary must be shamed into fulfilling them. And the sort of activist that thinks he is cheating the Constitution for a good cause would, ironically, be the most susceptible to public opinion! After all, he puts adulation above duty, and cannot bear to lose it.
Oddly, this effect would redound to the overall benefit of politics, as citizens began to understand that their representation lay in the legislative branch, and that they couldn't count on the judiciary to cast out unpopular laws. The necessity to get it right in Congress, and the unmistakeable realization that electing craven men, even if they are on "your team", can have disastrous consequences, should shake the public back to reality.
The realization that quickly passed, initially satisfying laws, can take enormous effort to finally cancel, once the unintended consequences begin to manifest, should give pause to media-created crises. Citizens would understand the weight of their decisions, and the need for making informed, critically examined choices. But at least they would understand that the way to repeal the unpopular law is by the same body which passed the law... the legislature. It was designed that way, by smart folks.
Forever? Perhaps not. But we can at least send the strongest message possible to our children by loudly enshrining once again the "separation of powers" of the branches of government, instead of zealously spending that time "separating" the tiny remaining vestiges of church from public life, of parent from child, of family from community.
You remember, from basic training... "I solemnly swear...to protect and defend...the Constitution of the United States from all enemies...foreign and domestic..."
It doesn't hurt that much to have the opposition attack - that's expected in modern politics (unfortunately.)
What hurts is when your friends attack. Look at Nixon and Clinton. As long as their parties were solidly behind them they were safe but then their associates started to doubt...
But even then it wasn't the questioning that hurt the institution, it was the answers.
The disagree with the premise and thrust of the article. Looks like a big straw man attack to me.
All conservatives want is a candidate with a documented history of strict constructionist judicial thought. A justice in the mold of Thomas and Scalia, both of whom wouldn't hesitate to rule against a "conservative" outcome if the constitution required it.
Perhaps Roberts can shame the other justices into doing their duty under the constitution. In cases of egregious decisions, he could include in the opposing opinion a call for the impeachment of the offending justices. Nothing personal -- just serving the constitution.
I found this to be one of the most thoughtful articles written about this nomination. The above sentence troubles me, however, because the President may mean no more by that statement than that he is confident she will adhere to the Constitution. I agree absolutely that that is what is needed. The courts have become completely politicized, and it is this that we should seek to undo rather than repoliticize them with our agenda.
Like many observers, I hesitated to write an essay on this for just the reason you pointed out. It may be that what the President meant to say, (in his frustration with nominees who, after confirmation, seem to forget their duties in favor of the delight of issuing decrees), was that this nominee could be counted on to uphold the Constitution.
If this is what he meant, and if he has carefully chosen the most qualified person, of all he examined, to fulfil this awesome lifetime responsibility, then our concerns are groundless.
I also agree that one of the most demoralizing things that can happen to a party is when the base begin to doubt their leader.
But we need also realize that we aren't Democrats. When Democrats see that their leaders are being exposed for the corrupt persons that they are, they reflexively circle the wagons and chant, "Our man, right or wrong!" The difference is that when Republicans sense error in their leaders... they push their fingers in the man's chest and say, "...if you've truly done this bad thing, you need to resign. You are not the reason we exist- you are only a man."
It weakens us that we have to regard and obey the law, while the Democrats simply sneer at it. But to do anything else would change who we are.
I am certainly not suggesting that a high level error has been shown to have been committed. But I am saying that the arguments advanced in putting forward this nominee for confirmation have left significant room for doubt in an otherwise uneasy party. Previously burned pundits are angry.
What is painful is that the nomination would have been so much easier among the party faithful if the President had merely said, "This is NOT an affirmative action nomination. This is NOT a case of my friend being rewarded with a plum. This woman, rather, has shown her unshakeable committment to upholding the Constitution, and her ability to do so if confirmed."
Would there have been anything further to say afterwards, other than to examine the record of her abilities? If that constitutes an attack upon George Bush, then we have a fan club going... rather than a political forum. I swore no oath to George Bush, and owe no fealty to his camp. As long as he represents the best interests of the Republic, I will support him along with the rest of the base. If he continues to show the courage and leadership he has in the past, his legacy will need no "Clinton apologist battalions".
Excellent, just like the rest of the essay.