President Bush’s selection of Judge Samuel Alito to succeed retiring Justice Sandra Day O’Connor on the Supreme Court expectedly produced a wave of customary commentary offered by various pundits, politicos, special-interest groups and armchair analysts, most of whom used their 15 seconds in the spotlight to praise or complain about the nominee’s reputed “conservatism.”
As the professional knee-jerk reactionaries – anticipating the president’s announcement – sped to waiting microphones, TV cameras and Internet blogs to denounce or praise Mr. Bush’s choice, what was conspicuously missing from most conversations was whether or not Judge Alito could competently read and interpret the Constitution of the United States.
That is, after all, what his job will be, should he be confirmed by the full Senate.
Oh, there were some oblique references to his constitutional capabilities, but for the most part, whether or not the 3rd U.S. Court of Appeals justice waxed to the political right or waned to the political left seemed much more important.
This is what the federal judiciary nomination process has become – a political popularity contest in which the players attempt to gauge a nominee’s penchant for the party line (whatever it happens to be at the time) and not whether said nominee can consistently, fairly and accurately interpret the supreme law of the land – as our Founding Fathers envisioned.
So much for “three separate, but equal, branches of government.”
Ever since President Bush was elected to his first term in 2000, liberals – mindful that a number of high court justices were aging and in ill health – have been petrified he and the Republican majority would be powerful enough to nominate and approve what they characterize as “extreme right-wing judges” to the nation’s highest court.
Conservatives, however, have behaved no better. They, like their liberal counterparts, have gone out of their way to remind their base that naming two, and perhaps three, new Supreme Court justices was of paramount importance and, as such, reason enough to keep them in control of at least the U.S. Senate.
Yet, a “conservative” court can trample a man’s rights the same as a “liberal” court. That is why the ability for a potential jurist to interpret the Constitution in the tradition and vision of the Founders is really what should dominate the selection process to the nation’s federal courts, not whether that jurist possesses the “right political credentials.”
But wait, you say – this is 2005, and the world has changed. How can we know what the Founding Fathers meant when they were writing and approving the Constitution? And how can such an outmoded document be relevant in today’s society?
Don’t panic. It isn’t as if the Founders didn’t leave any clues as to how they envisioned the Constitution.
There are volumes of historical writings which explain, in detail, how the Founders viewed the rights, responsibilities and functions of the American people and the government they had just fought to establish. In particular, the Federalist Papers – a collection of more than 80 essays – were written to explain every facet of the proposed Constitution in accurate detail. And they took progress into consideration – who can seriously believe the Founders, all of whom had seen technological advances in their lifetimes, believed the world in 1787 would never change?
In the case of Mr. Bush’s nomination of Harriet Miers, no one cared whether or not she could even read the Constitution. All they cared about was whether or not she would serve their own selfish political interests.
A better selection process would have been to simply give her (or any potential federal judicial nominee) a copy of the Constitution and ask her to explain each provision and amendment and submit it to the Senate. Members could then grill her about those answers during her confirmation hearing.
If she demonstrated an ability to understand and interpret the historical manifestations of the Constitution, confirm her. If not, reject her and pick somebody else. The issue of whether she is a card-carrying conservative or liberal should never enter into it.
I have said this before: The worst thing that could have ever happened to American government is the creation of political parties. Only people dissatisfied with the current form of government would establish a group, or “party,” to oppose the political system in place. Otherwise, what would be the point?
Selecting Supreme Court jurists only on the basis of their political ideology is what has led to outrages such as upholding the “legality” of slavery, attacks on states’ rights, creating a “right” to an abortion, and the recent decision allowing cities to exercise “eminent domain” to steal private property.
The charade that is the federal judiciary nomination process is proof the only thing missing from the equation is, sadly, the Constitution.