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As I See It

Traversing the slippery slope of judicial confirmation

Both liberal and conservative groups are busily preparing their short lists of acceptable candidates to replace retiring Supreme Court Justice Sandra Day O’Connor. Everyone had expected that Chief Justice William Rehnquist, who is suffering from pancreatic cancer, would be the first to resign. But, alas, it was not to be.

Known as a swing voter, Justice O’Connor is one of the most powerful and influential judges on the Court. Her opinions have been pretty much evenly divided between liberal and conservative positions. With the other judges frequently split 4:4, Justice O’Connor has been the deciding vote on lots of important cases over the last decade or so.

Tricky business

Choosing a Supreme Court justice is tricky business. The Constitution provides that the President, with the advice and consent of the Senate, selects justices whom, when confirmed by the Senate, serve for life. The question of what is meant by “advice and consent” is not defined and presents an opportunity for mischief by Senators who hold differing political views from the nominee.

Men of tremendous vision drafted the Constitution. The separation of powers into three equal and independent branches of government has served our country well. Clearly, the President, having been elected by all the people, is the right person to nominate Supreme Court justices.

However, the advice and consent provision in the constitution is certainly meant to be more than just a rubber stamp function. But, how far should the Senate go in fulfilling its role in selecting Supreme Court justices?

Boils down to politics

It depends on your political point of view. If the nominee seems to agree with your politics, you would want minimal interference from the Senate. If, on the other hand, the nominee holds opposing political views, you would want the Senate to assume the role of attack dog and disgrace the bum.

The political views of justices cannot always be determined prior to their appointment. And, views change once a judge is seated on the bench. In all likelihood, Chief Justice Earl Warren was the most liberal of justices in modern times and President Dwight Eisenhower, a conservative, appointed him. In fact, when President Eisenhower was asked about any mistakes he made as President, he remarked that there had been two and both of them were on the Supreme Court.

Philosophical bent?

Maybe trying to decide a judicial candidate’s political persuasion is a mistake anyway. Maybe a better approach is to consider their attitude toward the Constitution and the role of the judicial branch.

Obviously, the framers of the constitution intended for the legislative branch to make the laws and for the judges to interpret those laws. If the Constitution needs changing, it’s the responsibility of Congress to amend it. It is not the role of the judiciary to strike out on their own and make new law. In my view, this should be the litmus test of Supreme Court candidates.

People who feel as I do are called strict constructionists and we’re proud of it. We feel that it’s wrong for unelected judges, who are not subject to ouster by the voters, to write new law. Leave that to the Congress and if we don’t like what they do, we can boot them out at the next election. Plus, it’s much easier to review a judge’s record and determine if he or she restricts themselves to interpreting the law or goes off on a tangent and finds more in the law than is really there.

Litmus tests?

Thus, in my view, a commitment to interpret the law rather than write new law is the basic ingredient for a good Supreme Court justice. This is far more important than speculating on how a judge will handle specific hot-button issues.

Will President Bush nominate a moderate that most Senators can be comfortable with? I rather suspect that he will; however, I’m sure the Senate will conduct spirited debate just for the benefit of the cameras. He owes big political debts to conservatives and by offering up a strict constructionist with moderate political views he will likely traverse the slippery slope of confirmation and, at the same time, satisfy his constituency. However, the eventual retirement of Chief Justice Rehnquist will be a whole different deal.

Thought for the Moment

A vote is like a rifle: its usefulness depends upon the character of the user. — President Theodore Roosevelt

Joe D. Jones, CPA (retired), is publisher of the Mississippi Business Journal. Contact him at cpajones@msbusiness.com.


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