Ump on a Blog

With the nomination of Judge Sonia Sotomayor for the Supreme Court Justice opening to be created by the retirement of Justice Souter at the end of this term, once again we get the shovel-fulls of horse manure about “legislating from the bench.” It’s time to make the record very clear on that issue.

Judges DO make the law. Their rulings DO change judicial precedent. Their decisions DO alter the way that lower courts enforce existing laws, even those that have been on the books for centuries. And the nine Justices who sit on the United States Supreme Court DO change the meaning of the Constitution.

They always have, they do today, and they always will. And for that reason, as well as the fact that no human being is capable of extracting every ounce of personal bias from a decision, any personal beliefs or opinions of a given nominee are absolutely fair game during the confirmation process. The Fascist Bloc (Justices Thomas, Roberts and Alito) got a free pass by stonewalling an impotent minority panel in the Senate confirmation hearings. But that should come to an end with the Sotomayor nomination and confirmation.

Let’s start with the First Amendment. No, let’s just take the first ten words:

Congress shall make no law respecting an establishment of religion

Good Lord above, what in the holy name of cheese does that mean? The traditional interpretation is that Congress shall not pass any law that mandates a citizen to practice a certain religion. The passage immediately following — “or prohibiting the free exercise thereof” — would tend to support that, and several courts have upheld that idea and entrenched it in judicial precedent.

But the one word in that initial clause that causes concern from my point of view is “respecting.” How are we to view that in the contest of the passage? Sure, there have most likely been dozens of books written on the meaning of this piece of our country’s history, but I would be very surprised if there were absolutely no debate as to its meaning.

For instance, it could be that the Founding Fathers wanted not only that Congress stay away from establishing laws governing the practice of religion, but also that any mention whatsoever of God or religion in Congressional matters be avoided. We find ourselves frequently revisiting this issue, what with Boy Scouts wanting to use military bases for Jamborees and parents suing school districts for reciting the Pledge of Allegiance and all other manner of things. Good gracious, every piece of U.S. currency has “In God we trust” stamped across it — how does that adhere with the First Amendment?

And let’s consider that for a moment: Congress is but one tiny part of the Federal government. Congress may be prohibited from establishing laws creating a national religion, but what about the President? Can he issue an Executive Order requiring us all to be Druids from now on? What about the Supreme Court? What about federal agencies? Can the Department of Health and Human Services refuse to distribute money to states who don’t require an oath to Allah from their welfare recipients?

Also, “respecting an establishment of religion” could also mean that a Congressman entering into the Congressional Record a statement of support for an inner city church that counsels at-risk youth or operates a soup kitchen or provides shelter for battered women would be unconstitutional. Given the wording of the clause, that is not an unreasonable assessment of the intended meaning, but one that would run wildly afoul of the freedom of speech clause in that very same Amendment.

The point that should be evident is this: there is no “right” and “wrong” when it comes to the Constitution. All there are is hundreds of words written hundreds of years ago, containing a puzzle that we must now put back together every time a case comes up for review. Each new case is a new puzzle requiring different pieces, and the means for assembling those pieces is determined by the nine Justices sitting on the bench.

That is why it matters so much who is sitting there, what their background is, what they believe, and what they are likely to rule on any given case. Since we have no black and white with respect to the Constitution, our best means of determining what a given candidate will decide is in their previous decisions. But that is an open book, as are their speeches and public appearances. What we must know, what it is imperative that we find out during the confirmation process, is what is going on inside their head.

I saw the guy who acted as the primary “coach” for the Fascist Bloc when they came up for review in front of the Senate Judiciary Committee. He indicated that their memorized script was to go something to the effect of, “Every case is different, and has different subtleties. It is very important that the law be applied specifically to those subtleties having to do with the case. It would be misleading for me to make any statement regarding theoretical circumstances without seeing the facts of the case itself.” Essentially, “I’m not going to answer that question, Senator,” with a nice bow on top of it. Nominees uttering phrases of that nature should be held in contempt of Congress from this point forward, and yes, that does include Judge Sotomayor. What’s good for the goose, after all.

This country’s moral center shifts with every passing generation. In 1909 it was considered positively unacceptable to have sex before marriage; today less than one percent of Americans are virgins until they tie the knot. Accordingly, all of the laws pertaining to pre-marital sex that were on the books in various bergs and hamlets across our great nation have been either pulled from the books or struck down by the courts. It is a natural function of our legal system that the laws of our country change with the moral center of our citizenry. The Right Wing-Nuts are pulling out all the stops to make sure the Supreme Court stays well right of center. It is important that we make sure they fail in that endeavor.

Judge Sotomayor, and every one of President Obama’s nominees, must be put through the most rigorous and probing set of questions in the history of the Supreme Court confirmation process. Education, employment, family, marriage, children, medical history, friends, extended relatives, personal experiences, vacations, business travel, legal matters involving them as litigants, investments, opinions on landmark cases, every single thing that could possibly have bearing on a decision they could issue from the bench. Why? Because it sets a standard that all others must follow.

The Senate Judiciary Committee must be prepared to hold nominees in contempt if they refuse to fully and honestly answer every question put to them by the Committee. The Senate should also be prepared to vote down nominees who refuse to comply, and impeach any Justice who is found afterward to have been disingenuous during the confirmation process. This is imperative so that the final word on the laws passed by our Congressional representatives are in line with the morals and beliefs of the population at large, and to ensure that laws passed in a bygone era are stricken or re-interpreted in such a way that ensures genuine justice for the people of the United States in line with the moral and ethical standards of the times.

Now, because I also feel that the entire nomination and confirmation processes have been politicized to the point where radicals from both extremes of the political spectrum are nominated whenever possible, we should up the ante for candidates to be confirmed. Change the confirmation vote to 75 out of 100 Senators, AND six of the sitting Justices themselves. This will not only ensure that the candidates have had their credentials thoroughly reviewed by people qualified to pass judgment, but also that moderates who represent an honest reflection of the American body politic are the ones who rise to the forefront during the vetting process. Enough with extremist political operatives working to stack the deck with young puppets willing to do the bidding of their masters for a 40- or 50-year term.

The Court, the nomination and confirmation processes, and the political aspect of the entire mess will never be perfect. But what I have outlined above are steps we should take to start down a road where the law represents genuine “Equal Justice Under Law.” At the present time, the Supreme Court — as well as the entirety of the American legal system extant — represents anything but.