Want to Be a Federal Judge? Then Shut Up!
The tragedy of today's judicial confirmation process is that it is better to be an "unknown" if you want to be confirmed to be a Federal judge by the U.S. Senate. If you are a young attorney or young law student dreaming of serving our country as a federal judge, then you better not express your views in any way. Be particularly careful of writing any papers on any decisions pertaining to the life of the unborn, civil rights, individual liberties, "gay" rights and a whole onslaught of other hot button issues. In fact, avoiding all constitutional cases is a good first step.
Do the opposite and you are in for a lot of heartache.
On a recent address to the Memphis Bar Foundation, U.S. Supreme Court Justice Antonin Scalia said he doubts he would be confirmed by the U.S. Senate if nominated for the high court in today's climate. And the sad part is that he is probably right. We have failed to maintain the purity in our form of government when it comes to the judicial branch. We have lost the proper understanding of the law and the role of a judge. And as a result, many good judges are crucified by the distortion of their every word, turning what was once a respectful process into a political platform.
Ironically, this comes as a result of what a few judges themselves have done throughout the years. Some judges have taken it upon themselves to decide what is or should be the standards of society through the meaning of the "living breathing constitution," and in doing so, they have taken the role of "super legislators." There is no question they are making policy decisions, and since they are appointed for life, they leave the people no political recourse.
You see, if a judge has the power to go beyond the text of the law to say what the law "really means," in effect changing the clear intent of the law, then it is only logical for interested parties to want a judge who would give the law the meaning they want. Americans are frustrated as they see their collective will trampled by a handful of unelected men in black robes. Thus, we have people from both sides of the aisle working to get judges who would implement a specific political agenda through their decisions.
Needless to say, this is not what our founding fathers wanted; in fact, it is the precise opposite. They envisioned judges who would interpret the law as it is written. If we were to stick to that plan, we would not have this type of politically charged process in selecting judges.
Perhaps an illustration might help.
Let's say I am a great house painter, and I love the color blue. I paint everything blue; my car is blue, my house is blue, my clothes are blue, even the painting company I own is named "Blue Painters, Inc." As a company policy, though, we guarantee to paint houses whatever color the client wants.
If you know I'm a good painter, but you hate the color blue, should you be worried about hiring me to paint your house? If that is my company's policy, and I will follow that rule to do as our client wants, does the fact that I personally love the blue color have any impact on me painting your house? Frankly, would it matter if I loved green, or orange or yellow?
On the other hand, if my policy is only to follow my instincts, then when someone tells me they want their house painted purple, I might say "well, they didn't say that they did not want it blue, so let's do purple and blue. Or maybe I'll just paint it all blue; after all, what is purple if not a 50-50 combination of blue and red. In fact, I believe deep down inside the customer really wants blue."
You see the problem? If judges were to abide by the letter of the law, would it matter if they were a Republican or a Democrat, conservative or liberal? No, that's what the legislature is for, so we can vote out a senator or representative that is not voting according to our political beliefs.
If judges were to show the proper judicial restraint and stick to interpreting the laws that are enacted by the people through the legislature, then it wouldn't matter if they didn't personally like the law or policy.
On the other hand, if the Constitution is really a "living breathing document," changing with the times, who gets to decide its evolutionary course, a handful of unelected judges?
This fundamentally flawed argument is what has brought us to this point, to a climate where a judge with whom you disagree becomes a political adversary who must be defeated at all costs. Thus the distortion and destruction of a nominee's professional and personal life should not come as a shock to anyone.
But if something were to change, a miracle wherein judges found a renewed respect for the profession, a sudden renaissance of their true calling, where they would leave to "we the people" the task of making policy and bringing about "progress," then perhaps liberty and justice could be made well again.
So this is a call to all judges to examine themselves. Only humble self-sacrifice on your part can bring about the type of change we need in our society to restore the values that are the foundation of this Great Republic. Do not let yourselves be used as a political pawn.
This was the essence of John Adams' famous quote: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." His point is that morality and religion usually bring respect of self and others, honor, truthfulness, sincerity and self-control as a requirement, and this is what we need for our government to work.
If a judge insists on shaping policy, he will ultimately find a way to justify it "under the law;" legal minds are very good at this. A certain amount of humbleness and self-control is essential for our judiciary to work as our founders intended.
Yes, we have strayed away like blind sheep, but we can come back and find our way again. We know the way because we've been there before. And though some might liken this task to a cry in the wind and mark it as seemingly impossible, a quick visit to our nation's history books suggests that overcoming the impossible has always been part of our foundation as well.
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