This judicial “freak show” has been going on since the failed Reagan nomination of Judge Robert Bork in the 1980s. Ever since, the presidents’ nominees have been increasingly scrutinized and politicized. My fear is the latter will continue to rule the day and we will look to political ends rather than what is really at stake—constitutional supremacy, and therein, individual liberty.
Regrettably, the hearings for Supreme Court nominees have all the smoke and mirrors of a Vegas production with all the depth of a drained puddle. Often, minds are already made up and votes are not likely to change as most of the vetting that will be done comes about in the initial days after a nominee is announced. Though they may not be guaranteed confirmation, if the nominee makes it to the hearings, they can be assured of two things: softball questions for those who share their judicial philosophy and strict scrutiny from their opponents.
What troubles me most is a lack of consistency in the approach of both sides to philosophy. At the end of the day, the questioning resembles little to do with judicial philosophy and more to do with judicial outcomes. For the Left it is not about equality before the law, but is instead about parity of results. Likewise, for the Right it isn’t about reining in judicial activism, but rather about appointing its own activists.
The solution is what Judge Sotomayor claimed in her opening remarks as her own judicial philosophy: “fidelity to the law.” Sadly, Sotomayor doesn’t believe in “fidelity to the law.” Her record shows as much. What’s more, many so-called conservatives don’t believe in this fidelity either. In fact, despite continued calls for constitutional fidelity from all sides and all segments of society, it is rarely found.
The crux of the matter is, quite simply, that we have become a nation of “constitutional harlots.”
There is little fidelity to the Constitution, unless it suits our needs at the given time. Why else are those who so often act contrary to the Constitution willing to rally around it when it comes time to defend their positions? We see it all the time: The Constitution can be a barrier or a support depending on the position, and we don’t seem to mind when these positions are held inconsistently.
So what are we to do as freedom loving people? The answer is simple: demand fidelity to the law…fidelity to the Constitution. Demand of our elected officials the same standard we desire for our non-elected ones. Judges aren’t the only ones who swear to defend the Constitution. Congress and the president do as well. And we as citizens should do our part; we should be the first line of constitutional defense. The reality is that all branches of government as well as the citizenry are out of control and willing to disregard the Constitution. Our governing authorities act inconsistently with our governing standard and we don’t hold them responsible.
Why is this? Because we don’t hold consistent positions ourselves. We are too quick to compromise. And we continually put people in office by being short-sighted and not holding them to a high enough standard. So we shouldn’t be surprised when they don’t hold themselves to our constitutional standard.
The remedy? Let’s be consistent. Let’s demand consistency from our elected officials, and this will lead to constancy in judicial philosophy.
I subscribe to the judicial philosophy called “originalism.” This simply means that one should look to what the Constitution actually means, not what it should mean and not what society wants it to mean. I firmly believe that “originalism” allows for the document to be the standard, not changing views of society. Consistent beliefs require a standard. Since we have a standard—the Constitution—let us show fidelity to this standard. If we do, we will continually reap the fruits of liberty. But if we shy from this standard, we will sow the seeds of bondage.
Fidelity to the law is a must, not only when it suits our political ends, but in all seasons.