It seems that every time we have a contentious judicial nomination process, especially for the Supreme Court, a great fuss is made over not asking certain questions. More to the point, we’re told that nominees should not answer questions that could disclose how they may rule on certain issues in the future.
The problem with this notion is that the federal judiciary has grown ever more powerful over the years versus our other branches of government. Further, the Supreme Court is held to be the final arbiter of what the Constitution actually “means” at any given point in time – information that’s surely useful to the people that document is meant to govern.
This being the case, it’s ludicrous to suggest that the US Senate, to say nothing of the American people, should not have a good idea “what” these would be solons will say the Constitution means once they’re given a lifetime appointment.
Can you imagine a candidate for President telling voters that he can’t answer specific questions about incredibly important (even constitutional) issues, and that they shouldn’t even be asked such questions, but rather we should just trust that they’re a wise, experienced and empathetic person? (Insert laughter here…)
Historically, the importance of our judicial nomination process began to change as more judges began to see their role in our federal system differently than had been previously understood. In short, many of them began to think of themselves less as “umpires” and more as “players” in the game of politics and public policy. This in turn causes political tensions to increase as voters see their voices being ignored, (witness the issues of abortion, gay marriage and property rights).
This growing judicial supremacy is the primary reason nominations have become more contentious affairs, since people rightly recognize the judiciary’s increased role in public policy. The result is a nomination process that’s far less casual and far more like a political campaign.
Liberals were quick to promote this new reality, given their reliance on the judiciary to enable the expansion of government and the invention of new rights (while ignoring some of the old ones). Which meant that the nomination process became more important to them.
In June of 2001, with a Republican in the White House, NY Democrat Senator Chuck Schumer declared that the judiciary was too important (presumably to liberals) for a Republican to be allowed a free hand in making judicial appointments. He declared that experience and qualifications were nice, but ideology would be the determining factor.
But when it comes to a public fight over ideology, Republicans have a clear opportunity.
A recent Gallup poll found that Americans who self-identify themselves as conservatives (40%) comprise the largest bloc in American politics, more numerous than independents, (35%), and twice as large as self-identified liberals, (21%). The same poll also found that Democrats are more split ideologically than Republicans, with conservatives making up a fifth of the Democrats’ base of support, and a full third of independents.
This makes a strategy of highlighting judicial liberalism a political opportunity for Republicans. It’s time to ask some hard questions on critical issues – and demand some answers.
What does Sotomayor believe the Second Amendment means? Does she agree with last year’s Supreme Court decision in the Heller case that it guarantees an individual right to bear arms? Does she believe that Roe vs. Wade was a sound legal opinion? Does she see a “right” to privacy in the Constitution?
What’s her opinion of the Kelo decision and the “taking” of private property from one citizen and giving it to another? Does she believe the Constitution should force one state to recognize gay marriages performed in another state? Does she believe that the Supreme Court is the sole arbiter of what the Constitution “means”?
There’s no political downside for Republicans to be aggressive in seeking answers to perfectly reasonable questions that any voter would expect a candidate for a two-year term in Congress to answer. How much more so for a lifetime appointment on the Supreme Court?
In other words, it’s time to adopt the “Schumer Doctrine”.