Federal Courts

I'm not so concerned about whether or not the Right or the Left win on their issues; I'm concerned about proper Constitutional interpretation, judicial activism and the "presumption of liberty" vs. the "presumption of Constitutionality" when it comes to judicial review. So, from a liberty-minded perspective, here are some serious questions that should be asked of the SCOTUS nominee that replaces David Souter. (Thanks to my co-worker, Joe Henchman, for help on these.)

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state's discretion?

The New York Times holds true to liberal form with this piece full of not so subtle attacks and misleading statistics about "conservative Republican" judicial appointments (vetted by the conspirators at the Federalist Society, no less!), and Senator McCain's alleged lack of interest in the issue of Judicial Nominations.  The goal, of course, is to make it sound like the only way Senator McCain' will placate conservatives is by promising to work toward "the goal of tilting the courts rightward."

In addition to maligning the impressive list of attorneys who make up McCain's Justice Advisory Committee, the article is riddled with a number of untruths regarding Senator Obama's alleged refusal to be "explicit about how he would use the authority to nominate judicial candidates."

Senator Obama has, in fact, been quite clear on what kind of judicial nominees he would put forth.  When Wolf Blitzer recently asked him the question, he first praised Justices Breyer and Ginsburg as "sensible", and went on to say:

"Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings...And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being -- from being dealt with sometimes unfairly, that the courts become a refuge for judges."

Senator Obama voted against the confirmations of both Chief Justice Roberts and Justice Alito.  He has praised Earl Warren as the paragon of what a Chief Justice should be.  There is little doubt about what kind of appointees he would nominate to fly through a Democratic Senate, only to take their seats on Federal Courts around the country and begin dismantling what little return to legal and Constitutional sanity have been brought about by the current President's appointees.  Yet where are the RNC and RNSC on pushing the importance of this issue that wins on Election Day?  The silence is deafening.