Nominees and Code Words

The President will soon be announcing his nominee to serve as the next Associate Justice on the Supreme Court, to replace Justice John Paul Stevens, who is retiring at the end of this term.

Over the past half-century, the Supreme Court has developed into an institution that bears no resemblance to the role originally envisioned by the framers and ratifiers of the United States Constitution.  Rather than being a neutral arbiter of disputes under federal law, it has evolved into board of Platonic Guardians Rulers who undemocratically settle significant policy disputes, all under the guise of interpreting the Constitution.  For a demonstration of this, just take a look at any of the Court’s decisions on “social issues” like abortion or “gay rights”.  In fact, this development has gone so far that some have speculated that we no longer live in a democracy, but in a system where ultimate authority rests not in the people or in their elected representatives, but in unelected, life-tenured judges.

Given this situation, it is clear that the policy preferences of prospective Supreme Court Justices becomes an appropriate area for inquiry and discussion. After all, if they are going to act as our de facto rulers, perhaps we should get to know them better.

To that end, I thought it would be useful to look at some of the code words that will be used during the discussion of the new nominee, and especially during the confirmation hearings in the Senate.

  • “Precedent” and “Settled Law” — I have written before about these phrases, which are used by nominees to suggest that they are careful to respect existing law.   In reality, they mean that the nominee can be expected to overturn previous decisions that they don’t agree with, and sustain those they favor.  Or, to be more specific, these phrases mean that the nominee will support the Court’s abominable abortion decisions.
  • “Empathy” — This phrase was used by the President to describe what he was looking for in a nominee — somebody who would be sensitive to how law affects the lives of regular people.  This is a troublesome phrase, since to apply that standard in decision-making would violate a judge’s oath of office, which says: “I, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.” (28 U.S.C. section 453)
  • “Women’s Rights” — This phrase has nothing whatsoever to do with the Nineteenth Amendment (which guarantees women’s suffrage) or Title VII of the Civil Rights Act (which bans discrimination based on sex).  All it means is that the nominee can be counted on to support the right to destroy unborn human beings in the womb.
  • “Right to Privacy” — This has nothing to do with the Fourth Amendment (which guarantees the security of your person, home and papers from intrusion by the government).  It means that the nominee will support abortion rights.
  • “Right to Choose” — Nobody even pretends anymore that this means anything other than the right to abort unborn children.
  • “Judicial Activist” — As used by those who actually care about what the Constitution says and means, this phrase refers to judges who make up new rights and dress them up in Constitutional language — or those who invent new rights, like the right to abortion, and hide them in nonsense like the “penumbras” and “emanations” from the Bill of Rights (Griswold v. Connecticut), or “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Casey v. Planned Parenthood).  For those who don’t care about what the Constitution says and means, but instead adhere to the more flexible concept of the “living constitution” (i.e., it means whatever the current “wisdom” desires), the phrase is used to attack anyone who might overrule Supreme Court rulings on abortion rights or other social issues, or who might strike down statutes for exceeding the authority granted to Congress in the actual Constitution.
  • The public debate over nominees to the Supreme Court offer us an opportunity to re-assess where we are as a constitutional republic.  The use of code words deflects from that important consideration.  In the upcoming months, as the Senate deliberates over the new nominee, we should be very careful to pierce through the fog to the truth about what the nominee believes, and what the consequences will be if that person becomes our newest Black-Robed Platonic Guardian Ruler on the Supreme Court.

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