Creating a Constitutional Litmus Test

It’s understandably hard to focus our attention directly on all the fronts the radical left has opened up in their truculent effort to transform our Republic.  They are erasing our borders, disrupting the markets, infringing on our liberties, appeasing our enemies, and taking over major sectors of the economy.  Most of us would like to direct the lion’s share of our energy towards the economic issues plaguing our Country, especially Obamacare.  But the inexorable assault on our civil society has made it impossible for us to remain silent on the so-called social issues.  It’s time to stand and be counted.


Many individuals and groups within the broader right-of-center movement have shrugged off the assault on marriage as a state issue.  While the left worked tirelessly to get the federal government to bestow their favored interests with special privileges, our troops laid down their weapons, asserting that we should defer the issue to the states.  “There is no reason to push for a federal marriage amendment,” contended many a self-described libertarian.

Never mind the fact that the lack of federal recognition of marriage as only being between a man and a woman has ramifications.  The federal government can’t just “stay out of marriage” because it is the most basic civil societal institution we have. Therefore, it inevitably interacts with all of our other societal constructs through all sorts of laws (immigration being one of them).  Yet some want us to allow for 50 different versions of what marriage is, and how those different versions will all work together.

Well, that shortsighted thought process overlooked the presence of radical federal judges who dominate the federal court system in virtually every jurisdiction in the country.  In December, Utah Federal District Judge Robert Shelby ruled that Utah must recognize gay marriage, and do so immediately even during the pending appeals process.  Most of the same figures who cheered on the blue states adopting gay marriage as a manifestation of states’ rights are silent as an unelected judge vitiates the views of a supermajority of citizens in a conservative state.


In another end-of-year judicial blockbuster, Southern Ohio District Judge Timothy Black invalidated the state’s marriage law on narrow grounds, paving the road for mandating gay marriage in the future.

As we watch federal judges dismantle our society with impunity, we are left to ponder how we’ve descended to such a point where unelected figures can force states to recognize a legal status of something that never existed.  A major culprit of the over-saturation of judicial activists on the bench is the imbalance between the way the two parties approach judicial nominations.

When Democrats are in power they leave no stone unturned in shifting all the district and appellate courts to the left.  Yes, indeed, they have litmus tests for their nominees.  When Republicans are in power, they search from someone who is “qualified” and has a nice legal resume.  Some of them turn out to be strict constitutionalists, but inevitably others follow the Souter model.  Moreover, most Republicans adhere to this same standard of “qualification” when deciding whether to oppose Democrat nominees.  Hence, almost every judicial circuit is filled with judges who fabricate law instead of following the Constitution as it was originally conceived.

It’s time Republicans develop their own litmus test for judicial nominees.  Any perspective judge who cannot definitively reject the notion of a constitutional right to a “gay marriage” should not be considered or supported.  This should certainly be the case when Republicans control the White House or the Senate, but even when they are in the minority there is no excuse for supporting anti-constitutionalists.


Judge Timothy Black, the Ohio judge who invalidated part of Ohio’s marriage law, was confirmed on a unanimous voice vote in 2010.  In September 2012, the Senate unanimously confirmed Utah Judge Shelby.  Even Senator Mike Lee supported his nomination, noting that he was “pre-eminently qualified” to serve.  Well, when you examine Shelby’s preposterous jurisprudence and rationale for mandating an immediate recognition of same-sex marriage in Utah it will shed new light on what it means to be qualified to serve as a judge.

If a nominee does not believe in the Constitution as it was written, they are not qualified to serve, irrespective of their meritorious achievements both in and out of their legal career.  Understandably, it is often hard to extract definitive views from nominees, especially if they haven’t ruled on important subjects like gay marriage, but Republicans need to get more aggressive.  They need to be 100 percent clear about the views of the perspective nominee on the important issues percolating through the court system.  Democrats expect that level of clarity from their vantage point, so Republicans must follow the same standard.

Some might suggest that the battle over judicial nominees is lost until we win back the Senate, especially since Harry Reid pulled the nuclear option.  But why should we let that stand?  Republicans should declare a de facto filibuster on every piece of legislation for the rest of this Congress until Reid agrees to restore the rules of the Senate.


At the very least we need to commence a dialogue within the movement as to how we are going to bridge the political-judicial gap between the two sides.  The capricious rulings and growing power of those like Judge Shelby should send chills up the spines of any liberty-loving American.  As Erick often says, you will be made to care one way or another.  We better start caring before it’s too late.


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