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Talking Points in Support of a Judicial Nominee 2/23/2005
By Jan LaRue, Chief Counsel An appropriate nominee passes the only “litmus test” that matters—he or she is pro-Constitution.
1. The nominee passes the only “litmus test” that matters—he or she is pro-Constitution.
- A judge swears an oath to uphold the Constitution despite personal, political and public policy beliefs.
- Alexander Hamilton wrote that the purpose of the judiciary is “to secure a steady, upright, and impartial administration of the laws.” The judiciary “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Federalist Papers 78.
- As the late Sen. Sam Ervin said, “A judicial activist is a judge who interprets the Constitution to mean what it would have said if he instead of the Founding Fathers had written it.”
2. The nominee believes that a judge should be limited by the text, structure and logic of the Constitution.
- As an “originalist,” the nominee respects the words of the Constitution and the intent of the drafters.
- The nominee is committed to interpreting law and not writing law.
3. The nominee is fair and impartial, as a judge must be.
- The nominee is not a partisan or an “extremist.”
- Members of the opposition like to call their kind of judge a “moderate,” which is a code word for people who agree with their political position, while their opponents are always “extremists.”
4. The nominee possesses the requisite competence, temperament, character, knowledge of the law, and experience.
- The nominee is known to be virtuous, courteous, humble, evenhanded, open-minded, firm and dedicated to the law.
- The nominee’s knowledge of the law is well-respected within the legal community.
5. The Senate should give deference to the President’s choice.
- As Hamilton wrote in the Federalist Papers 76, “The person ultimately appointed must be the object of [the President’s] preference,” and the Senate should only refuse to confirm a nominee for “special and strong reasons,” such as “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity,” or “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” Hamilton states that the Senate’s involvement is meant to “have a powerful, though, in general, a silent operation.” [Emphasis added.]
- The Senate Judiciary Committee should question the nominee in regard to his philosophy of interpretation, written opinions and other writings, not political philosophy.
- The nominee should not be asked for advance commitments to rule certain ways in unresolved cases or cases that may come before him in the future. “We cannot ask a man what he will do (on the court), and if we should, and he should answer us, we should despise him for it.” Abraham Lincoln.
Take action: You can act on this important issue even before a Supreme Court resignation occurs and President Bush nominates a replacement. Use the information in this paper to write a letter to the editor about appropriate judicial nominees. In addition, contact President Bush to tell him you support his selection criteria. E-mail: president@whitehouse.gov; comment line: 202-456-1111.
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