May 13, 2009 | Commentary on Legal Issues
There are some who believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-around good guy; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe it calls for meaningful advice and Consent and that includes an examination of a judge's philosophy, ideology, and record. - Senator Barack Obama, January 26, 2006
Conservatives agree with the Senator Obama of 2006 and hope that President Obama's nominee to replace retiring Justice David Souter on the Supreme Court receives a detailed examination of his or her judicial philosophy and record.
If the nominee accepts the premise that judges should look to sources other than the plain text of the Constitution and its original meaning, then the Senate must carefully consider ideology as well. Using an "empathy" standard or some other subjective standard to consider constitutional law would be inappropriate and Senators need to know if a nominee will read his or her own ideology into the plain text of the Constitution.
Thus, a nominee should be pressed by the Senate Judiciary Committee about the proper sources of law for judges, including whether Justices should look to international law. Nominees should also be asked whether the Constitution is a living document, growing to encompass new rights, such as gay marriage. A nominee should be asked if the Supreme Court should protect the right to keep and bear arms and the right of the people to be secure in their property against governmental takings except for honest-to-goodness public uses.
One strategy being used by President Obama to get his nominee confirmed is to call for an expedited time line for the Senate to consider and seat his nominee. The Constitution provides that the President "shall nominate, by and with the Advice and Consent of the Senate...Judges of the Supreme Court." There's no "tight time-line" demanding confirmation by early October.
For those who believe that the President's power to appoint should inevitably lead to a quick confirmation, note that since 1789 the Senate has chosen not to confirm 36 nominees. Senators should reject a nominee who cannot fulfill his or her oath of office by defending and protecting the written Constitution. Conservatives hope that Senators don't rubber stamp a dangerous nominee.
Another Bank Bailout
The Department of Treasury has conducted "stress tests" on 19 of the nations' largest banks as part of the Troubled Assets Relief Program (TARP). The purported reason for these tests was to analyze the capital needs and balance sheets of banks with significant assets. A model was used to see if banks could withstand future pressures over the next two years and to see if these banks could survive under a further downturn of the economy.
The results are in and, according to Reuters, Bank of America needs $34 billion and Citigroup needs $10 billion in capital to withstand an economic malaise. Sen. Jim Bunning (R-KY) told Human Events, "Treasury Secretary Geithner knows that Congress will not approve another bailout and he is using these stress tests as a means to create more urgency in order to justify the need for another government handout to his buddies on Wall Street. I can assure you that I will do everything I can to see that they don't get one more dime of taxpayer money."
Conservative are deeply concerned that Geithner, Chairman of the Federal Reserve Ben Bernanke and President Obama seem all to eager to use government intimidation to give money to large banks, while at the same time forbidding many of these same banks from paying back TARP monies.
A New Entitlement Program
President Obama's recent plan to transform the structure of higher education financial aid would create yet another entitlement program. The practical effect of the proposed change would be to make the U.S. Department of Education a monopoly in the student aid loan industry.
This is a controversial measure, and that's why Congressional leaders may use special procedures as part of the President's Budget to force this measure through as part of a reconciliation measure. Reconciliation allows for very limited debate, no substantive amendment process and expedited procedures.
Instead, taxpayers should demand to know how the Administration can justify creating another entitlement program that will inevitably expand over the next few years in the face of a historically high federal deficit.
Brian Darling is director of U.S. Senate Relations at The Heritage Foundation
First Appeared in Human Events