As the White majority explained, “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. . . . [And] it would hardly be desirable [to find such a judge]” because he could not “be learned in the law” and yet have no preconceived legal views.
The independence and impartiality of the judiciary is indeed under fierce assault—from judges themselves. Contemporary
Reconstructionists judges have violated their oath of office—“by Oath or Affirmation to support this Constitution.” But unaccountable
Reconstructionists judges have abdicated this ultimate responsibility and can therefore can pick and choose whatever current legal fad they wish to depend on, and show partiality toward—interest group demands, their own personal views and values, etc.
If it were otherwise, nomination hearings would be short indeed. As the Court itself declared in White, “[there] is almost no legal or political issues that is unlikely to come before a judge of any American Court, state or federal, of general jurisdiction.” And a nominee’s stating “a philosophical generalit[y]” (e.g., “I am a strict constructionist”) “has little meaningful content for the electorate” and may not even be verifiable without “application to real-life issues” that the Court is likely to face.
This fact is illustrated by the issues of abortion and homosexual rights, about which Roberts’ philosophy is clearly unclear. Cases in both these issue areas inevitably involve fundamental, non-legal questions such as the meaning of “personhood,” the nature of man, the mature of marriage, and morality. Such cases are inherently philosophical statements by the courts.
But these Court decisions are now also constitutional statements. The Court has dragged these issues into the constitutional arena with its convoluted expansion of the Constitution’s Due Process and Equal Protection Clauses (as well as other provisions) to abortion, homosexual rights, and other fundamental cultural issues. The Court itself is thus the one responsible for legitimizing a wide range of questions of judicial nominees which would not have even been thought of in earlier American history. Indeed, it is these very issues that have ignited many of the flames in the Culture War now engulfing America. Scrubbing from nomination hearings and public debates over judges any discussion of a judge’s views about these fundamental philosophical and constitutional question of our society is an impossibility and a vicious slap at the principle of republican government.
It is therefore also a fiction to argue that questions about such issues as abortion or homosexual rights violate the Constitution’s prohibition upon religious tests for national office. These issues are not “religious” per se. They are philosophical and constitutional. They do indeed have roots in religious values. But “to have roots in” something is not the same thing as “to be” something.
The constitutional and cultural conundrum created by fictitious arguments in the Roberts confirmation battle must be addressed by us—“We, the people.” We must insist that our Senators (who are accountable to us—yes, to us and not their party or Senate peers) ask of all judicial nominees a full and honest explanation of their basic philosophical and constitutional positions. Law-savvy Americans can provide questions to Senators (e.g., some apparently question-allergic GOP Senators) who do not fulfill this responsibility. We must hold the Senate, the White House, and the nominee accountable in providing us with a substantial, objective, verifiable body of data revealing a nominee’s basic philosophical and constitutional positions. We must then lobby our Senators to support only clearly constitutionalist nominees. And we must continue to hold these officials accountable for the judicial conduct of any nominee who is confirmed. It is in this context of openness, not secrecy, that the greatest degree of judicial non-politicization, independence, and impartiality can be achieved.
We American Constitutionalists who hold a high view of our Constitution, believing that it is, and must be, the Supreme Law of the Land must act. We are encouraged in this vital endeavor by one of America’s most brilliant and articulate defenders of a limited judiciary—Justice Felix Frankfurter. Frankfurter wrote in 1941 that “Judges as persons, or courts as institutions . . . are entitled to no greater immunity from criticism [or questioning] than other persons or institutions . . . . Judges must be kept mindful of their limitations and their ultimate public responsibility by a vigorous stream of criticism [or questioning] expressed with candor however blunt (italics added)” (Bridges v. California, 314 U.S. 252, 289-290).
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