Two weeks ago, President Bush re-nominated 12 candidates for federal appeals court seats whose confirmations were blocked by Senate Democrats during his first term.

Bush says judicial nominees deserve an up-or-down vote in the Senate. That’s the way the Founding Fathers intended for the Senate to be heard on judicial nominees. Instead, Bush’s political opposition, too weak to prevent most nominees from approval, has prevented the nominees from coming up for a vote.

While I support some of Bush’s judicial nominees, I oppose others.

The effect of the Democratic filibustering is that the American people are denied even a lively and open debate on them.

No one except the Charles Schumers and Hillary Clintons and Barbara Boxers of the Senate ever get a chance to set the tone for what a good judicial nomination should be. They impose their will on the American people by fiat with litmus tests such as support for specific Supreme Court rulings such as Roe v. Wade.

It’s unseemly.

It’s either their way or the highway. And, their way is wrong!

So, when the hearings finally come, the job of the nominee is to tap dance.

“I can’t answer a hypothetical question,” he or she might say.

“I don’t want to prejudice myself in a future case by answering that question, senator,” would be another cop-out.

“I haven’t reviewed that decision thoroughly,” the nominee might dodge.

Maybe it’s time for some more general questions for judicial nominees – and particularly those being considered for the high court.

These are questions that should be asked both of nominees by the senators and prospective nominees by the president and his closest advisers:

  • Do you believe the original intent of the founders should be considered when weighing the constitutionality of a law?

  • Do you believe the Constitution is a “living document,” whose actual meaning changes with the times?

  • From where do people get their rights?

If you want to determine what a candidate’s judicial philosophy is, I suggest you can do it accurately and succinctly with those three questions. They will smoke out the conservatives, the liberals and squishy moderates faster than all the hard-hitting, ideologically loaded questions about abortion, about the Second Amendment or any other single issue.

These would be appropriate questions to ask and to answer.

And they work for ordinary Americans, too.

How do you answer those questions?

What does that tell you about yourself?

Americans don’t need black-robed justices divining the meaning of the Constitution. The Constitution was written by our Founding Fathers as a document that could be understood by ordinary citizens without law degrees from Harvard or Yale – or even in spite of such credentials.

We have allowed ourselves to be hoodwinked into believing that we are too dumb to understand the basic law of our land – laws that were well-understood 200 years ago by farmers, not just lawyers. We don’t need legal high priests to bring us into relationship with the intent of the framers. Their words, their arguments and their straightforward writings are still around for all of us to examine and analyze for ourselves.

Did the founding fathers really intend for a handful of unaccountable judges to amend the Constitution by judicial fiat? Of course not. The Constitution itself provides the only mechanism for amending the document. Did the founding fathers ever believe that an elite corps of specially trained attorneys would be necessary to interpret the Constitution? Of course not. In fact, every elected official in Washington swears an oath to uphold the Constitution – an act that would be meaningless if only the justices were capable of understanding it and interpreting it. Did the Founding Fathers ever intend for the Constitution to be a “living” document whose meaning changed with the times? Of course not. That’s what the rule of law vs. the rule of men is all about.


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