Where We Stand: Our Principles On Restoring the Proper Role of the Courts

From the time John Adams first popularized the phrase, American school children have been taught that ours is “a nation of laws and not of men.” This means that the U.S. Constitution and laws are supreme and have fixed, objective meanings that do not vary depending on who is in power. The Constitution is very much alive and relevant to protecting our freedoms today, but it does not vary in its meaning or protections depending on the fashionable trends or notions of any era.

The Constitution imposes structural limits and responsibilities on both the state and national governments. The national government has no inherent powers; it possesses only those “limited and enumerated” powers conferred upon it by the Constitution. These federalism and separation of powers principles are designed not merely to enhance the power of one level of government over another, but to preserve individual liberty. Departures from them by Congress or the courts jeopardize our cherished freedoms.

As Alexander Hamilton correctly noted in Federalist 78, it is the province and duty of judges to say what the law is rather than what they want it to be. Judges faithful to their constitutional role exercise legal “judgment” to enforce the original understanding of the law. They must not exercise their “will” as members of a political branch do. Otherwise, there would be no rule of law in America, only the oligarchic rule of judges.

It is destructive of our form of government for politicized judges to impose activist rulings based on their own naked preferences rather than to apply the Constitution and laws fairly, as written and intended. Politicization of the judicial appointment process both undermines judicial independence and the normal constraints that reinforce proper judicial behavior and begets more activist rulings.

The President and Senators should conduct a careful inquiry into a potential federal judge’s judicial philosophy, or the methodology he would use when deciding cases. It is not enough for a nominee simply to pledge to follow the rule of law without explaining what that means. A record of scholarship, prior opinions, or a discussion of important constitutional provisions should be pursued to determine whether the nominee appreciates what the rule of law requires, which includes a commitment to interpret and apply the Constitution and laws as they are written and were originally intended to operate. Yet a nominee should not be asked about his political preferences or how he would rule in particular cases—legal litmus tests. The ultimate measure of success will be whether there is more or less activist policymaking from the federal bench.

There should be equal vigilance concerning the fitness and qualification of state judges. State judicial candidates should be subject to careful evaluation, and appointing officials should be held accountable for the level of activism by state judges whom they have appointed. In states with an elected judiciary, citizens should educate themselves about the record of candidates for judicial office and should seek the advice of groups that are committed to the rule of law and proper interpretation of the Constitution and state laws.

A minority of U.S. Senators is abusing the rules of the Senate by filibustering, or preventing a final up-or-down vote, on the confirmation of 10 federal judicial candidates who would be confirmed if a vote were ever taken. This Senate is the first in U.S. history to allow a permanent filibuster of a judicial nominee. The Senate may establish its rules for the consideration of legislation, but a filibuster of a judicial nominee not only violates the Senate’s constitutional duty to provide its advice and consent to the President’s nominees, but also violates the constitutional separation of powers because it thwarts the President’s obligation to make judicial appointments and hampers the administration of justice in the courts. The Senate should reform its rules, similar to the proposal outlined by President Bush in 2002, to require an up-or-down vote on each judicial nominee within six months of nomination. Failing that, a bare majority of the U.S. Senate should uphold a ruling of its presiding officer that filibusters of judicial nominees are not constitutional.

It is time to challenge a fundamental misconception that some have regarding the proper role of judges and the judicial system. There is a critical difference between political ideology, which is a set of political beliefs, and a nominee’s judicial philosophy, which is a theory of proper judicial decision- making. Political beliefs ought to play no role in a judge’s judicial philosophy. The rule of law is premised on the bedrock principle that law can be objectively determined and fairly applied to all no matter what judge or other official is in power. Thus, the application of the law should not vary depending on political ideology or elite trends. The House and Senate Judiciary Committees should report annually on when the rule of law has been subverted by the rule of judges. In addition, the President, governors, individual Members of Congress, state legislators, and state legislative bodies should collectively and routinely criticize individual decisions that are fundamentally wrong as a matter of law. Only through such vigilance will it be possible to reinvigorate the traditional constraints that encourage judges to render rulings based on the true meaning of the law rather than what they want it to mean.

Congress should cease passing laws that unconstitutionally aggrandize its own power or pretend to do something about a problem over which the national government has no authority to act. The federalization of crime is just one of many examples. A recent study estimates that there are now approximately 4,000 federal crimes, up from about 3,000 just 10 years ago. The Constitution makes reference to only three potential federal crimes, and most of Congress’s recent criminal legislation is simply duplicative of state laws, undermines state accountability for crime control, and diverts federal law enforcement officials from more crucial anti-terrorism responsibilities. However, courts have the ultimate responsibility to enforce federalism and the separation of powers. Invalidating congressional action is not just an option, but also an obligation. If the courts do not act to curb Congress’s ever-encroaching nature by delineating clear limits on its powers, the judges will have violated their oath to defend the Constitution. Citizens should be particularly insistent that any new justice appointed to the Supreme Court has the commitment and fortitude to do his or her duty.