Non-Originalists Need Not Apply
When a President nominates a judge for the Supreme Court or an important lower federal court, discussions immediately begin about litmus tests for acceptability. Historically the issue has typically revolved around the nominee’s position on abortion.
The Wikipedia entry titled Litmus Test (politics) makes a common mistake that I hope to correct here, which is conflating issue positions with judicial philosophy. They are two very different concepts and one largely supersedes the other. The Wikipedia entry’s error is in attempting to equate a nominee’s position on abortion with support for strict constructionism, portraying them as equivalent litmus tests. The comparison is inherently flawed because the former is simply a position whereas the latter is a philosophy. In fact, in most cases the philosophy should form the position.
After successfully stepping back from an issue-based perspective to a philosophy-based perspective it becomes obvious that there is only one litmus test that matters when it comes to a nominee to a federal court. That question is does this individual subscribe to the philosophy of originalism? If not, that person is wholly and inherently unqualified to sit on a court that acts as the final arbiter on issues of Constitutionality. No other questions are required. An Originalist simply argues that the United States Constitution means what it says, while the diametrically opposed so-called Living Document crowd argues that the text can (and should) be finagled to achieve desired results.
When Bill Clinton was still President I started using a home mortgage analogy in an attempt to explain my Constitutional philosophy while making the case that it is the only perspective that makes sense. Over the last year or so I have heard the best talk radio host in America present essentially the same analogy, and it is a good one.
If your bank contacted you to let you know that they had decided to increase your interest rate, you would categorically reject this change in the terms of the agreement. You would sensibly point to the words in the contract and would expect those words to mean what they say. You would not be impressed with claims by your bank that some vague wording about their management of the account has now been decided to construe an ability to change the rules. You would once again point to the words in the mortgage paperwork. Even if they made the argument that increasing your interest rate would allow them to provide mortgages to the less fortunate, you would tell the greedy banker to take a hike.
[Keep thinking like the angry consumer against whom the bank is trying to play word games!]
The Commerce Clause
[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
When the federal government – or one of its leftist myrmidons – tells you that the commerce clause (Article 1, Section 8, Clause 3) gives it the power to regulate every single aspect of your life, you should sit down and spend some quality time with your Constitution. Ask yourself with a clear head why the founding fathers would have taken the time to get so very specific in Article 1, Section 8, which includes the enumeration of powers like coining money and running the post office, if they were granting wide ranging powers to regulate at will by including a grant of power to regulate commerce “among the several states”. Ask yourself if those preeminent guardians of liberty would agree that those words legitimately confer the power to regulate your light bulbs or toilets or, most recently, to grant the federal government the new power to make health care decisions for you. The obvious answer, known even by those in the living document crowd, is that the founding fathers intended no such thing and would be appalled at the success of the commerce clause based power grab.
Lawyers and politicians who recklessly bend and misrepresent the words of the Constitution in an attempt to contort them into something that will achieve their desired political agenda are no different than a slimy lawyer redefining the definition of the word is. They are egregiously dishonest and selfish, regardless of the results of their judicial activism. In fact, they are a danger to the future of the republic.
So, in summation, my Supreme Court Litmus Test is really quite simple:
Does the Constitution mean what it says?
I wrote most of this before President Obama nominated Elena Kagan to replace John Paul Stevens on the high court. Though Ms. Kagan has no judicial experience whatsoever –certainly Mr. Obama’s clumsy attempt at a stealth candidate – an intelligent observer should know that the President would never consider nominating a judge who subscribes to Originalism.
Not being an Originalist, Elena Kagan is categorically unqualified to sit on the Supreme Court.
UPDATE: Last night my son and I listened to Friday night’s Mark Levin show podcast on the way to little league practice (I always listen to them a day or two later) and Mark was talking about Originalism as well. Further, pointing out that Ms. Kagan seems to be uniquely unqualified to be a justice – she has never been a judge nor argued a case before an appellate court – Levin calls on the GOP Senators to filibuster her nomination. We all know that they do not possess the cojones for that.
