NASSAU COUNTY CIVIC ASSOCIATION, INC.
"The government is us, we are the government, you and I." Teddy Roosevelt
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NASSAU COUNTY CIVIC ASSOCIATION, INC. "The government is us, we are the government, you and I." Teddy Roosevelt |
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August 26, 2005
Judicial Nominees and the Use of Religious Tests
Philosophy and faith versus competence and qualifications
The President last month nominated John G. Roberts, a D.C. appellate court judge to fill the vacancy of retiring Supreme Court justice Sandra Day O’Connor. While the particular nominee was not anticipated by court watchers, the philosophy of the nominee was certainly expected. Elections have consequences. Is it shocking that the nominee is conservative? While the Senate can certainly disagree with a nominee’s philosophy, the basis to reject a nominee has always been based on competence and qualifications. Even though some Senators have questioned the degree of a nominee’s philosophy and ability to be balanced, it was unheard to question one’s faith. Times have changed.
When President Clinton nominated Ruth Bader Ginsberg to the U.S. Supreme Court, she was the chief counsel to the American Civil Liberties Union (ACLU). Most Americans understand that the ACLU is an extremist group. Their effort to purge God from our society, defending pedophiles of the ManBoy Love Association, provide enemy combatants with access to the federal courts and so on is clearly outside the mainstream. What did the Senate do? While many Senators strongly disagreed with her liberal philosophy, she was questioned regarding her competence, her ability to fairly evaluate cases and her qualifications. She was never asked about her faith. The vote was 96-0. Judge Anton Scalia who was nominated by President Reagan was identified as a conservative. He was never asked about his faith. The vote was 98-0.
Questions about a nominee’s faith are impermissible as enumerated in the Constitution. Article VI, Clause 3 states: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
It is important to understand that words have meaning. All Americans have misspoken or have had their statements taken out of context now and then. The problem is when a person repeats the same mistake and refuses to acknowledge the error. One such person is New York Senator Chuck Schumer who is a member of the Judiciary Committee. The Senator has made an issue of an individual’s deeply held religious beliefs. The following are excerpts of public testimony from various confirmation hearings:
Confirmation hearing of Attorney General Nominee John Ashcroft
"When you have been such a zealous and impassioned advocate for so long, how do you just turn it off? This may be an impossible task."
Confirmation hearings of Appellate Court nominee William Pryor
"His beliefs are so well known, so deeply held that it's very hard to believe, very hard to believe that they're not going to deeply influence the way he comes about saying, 'I will follow the law,' and that would be true of anybody who had very, very deeply held views,"
. . . There is a degree of subjectivity, especially in close cases and controversies on hot-button issues, and it is hard to believe that the incredibly strong ideology of this nominee will not impact how he rules if confirmed . . .
. . . My guess is that most, certainly many, of the President’s judicial nominees have been pro-life, but I have voted for almost all of them because I have been persuaded they are committed to upholding the rule of law, and committed to upholding Roe v Wade in particular. I for one believe that a judge can be pro-life, yet be fair, balanced, and uphold a woman’s right to choose, but for a judge to set aside his or her personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. That is something some can pull off [sic], but not everybody can . . .
. . . When it comes to separation of church and state, we have to be concerned as well. Again, I agree that some cases, in some cases courts have gone too far. I think the Ninth Circuit went off the deep end in the Pledge of Allegiance case. I personally am a deeply religious man. [?] I believe that if we all behaved more in accord with traditional religious teachings, we would have a better, healthier and safer country. But the comments the Attorney General [Pryor] has made, coming from someone who if confirmed will be sworn to uphold and defend the Constitution and protect the rights of all Americans regardless of their religious beliefs, they are troubling as well . . .”
It’s important to note that Attorney General Ashcroft was elected to the U.S. Senate from Missouri, as Missouri Governor and as Missouri Attorney General. William Pryor was elected as Attorney General of Alabama. Certainly the people of their states had faith in their ability to govern and follow the law in a fair manner. While John Ashcroft was confirmed early on, William Pryor was finally confirmed after more than 4 years in the recent Senate compromise deal struck by the “fourteen moderates”.
The most important trait of a judge is to interpret the law fairly and not legislate from the bench. If citizens do not support a particular law, we have the right to petition our legislature to change the law or hold our representatives accountable during elections. Judicial activism is a danger to our republic. From redefining marriage to the taking of property rights, all Americans are at risk.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. - James Madison
We would ask Senator Schumer to refrain from questioning John Roberts or any nominee about their “deeply held views”. Perhaps he should place his faith in the constitution instead of faithfully following those on the extreme fringes of society.