AJ DiCintio

Thomas Jefferson:
Don’t Question a Supreme Court Nominee Without Him
June 9, 2009

As soon as the "activists” of the Warren Court made it clear that in liberal jurisprudence a judge’s personal beliefs and empathies can trump even explicit language of the Constitution, conservative Senators should have done a number of things, including initiating a tradition whereby they would ask every nominee for the Supreme Court to respond to Thomas Jefferson’s thoughts about the federal judiciary.

But they didn’t, thereby failing the nation regarding two important obligations:

...To continually battle against and educate the public about a profound threat to government of "We the people.”

...To cause a whole lot of liberals who have proudly celebrated a whole lot of Jefferson-Jackson Days to do a whole lot of very public wriggling and writhing.

But all is not lost regarding that unforgivable act of negligence; for the University of Virginia’s Jefferson Digital Archive makes it easy for contemporary Senators to live up to the oath they took to "support and defend the Constitution of the United States against all enemies, foreign and domestic” as they simultaneously honor the great Founder.

Here, for example, are quotes the Senators could find in a few minutes.

The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, "boni judicis est ampliare jurisdictionem.” — "[The work of] a good judge is to expand jurisdiction.”

Of course, when asked to react to this passage, some nominees will regurgitate well-rehearsed platitudes about their devotion to the principle of Federalism. Therefore, conservative Senators must invite every nominee to enumerate a dozen or so very important rights they perceive the Constitution as reserving exclusively to the states.

But the Senators cannot stop there; for it is essential they refer to specific cases, for example, Kennedy v. Louisiana (June ’08), in which the Court forbad (5-4) the execution of anyone who rapes a child, no matter the nature or frequency of the unspeakable crime.

After the Senators point out that the Constitution mentions capital punishment more than once without stating any exemptions, they should strongly insist the nominee answer this question:

"Will you enlighten the American public regarding the new "law of the land” this case lays down by identifying and discussing specific passages from the Constitution that support the majority ruling?”   

We have...[required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation.

Never one to argue a point without stating his reasons for holding it, Jefferson often explained that lifetime-appointed federal judges are "effectually independent of the nation” because partisan politics renders impeachment a farce, scarecrow, and bugbear.

Having brought that idea before a national audience, the Senators will set the stage for much more than a merely interesting exchange when they ask nominees to discuss the real-world consequences that occur when judges who, de facto, are absolutely secure in their position for life decide to become "activists.”

So, too, will the Senators create an intellectually stimulating scene as they earnestly seek reactions to the particular consequence Jefferson had in mind when he wrote this:

It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation.

At this point, the Senators may wish to lighten the hearing up just a bit (but not for liberals, who will look as if they just finished chugging a pint of vinegar) by asking whether or not the nominee recognizes the eternal magnificence of the following quote, which makes the case against any kind of judicial "activism” with three truths, two stated in a formal style, the other with language that conjures up the image of Justice Grampa Simpson announcing his concurrence in yet another liberal activist opinion.

But we have made [federal judges] independent of the nation itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.

Then, back it is to a fully serious tone as the Senators ask for reactions to the following two passages, insisting that part of the response must explain how an "activist” judiciary can ever be consistent with the notion of the political supremacy of "We the people.”

It has long been my opinion, and I have never shrunk from its expression,...that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

One single object...[will merit] the endless gratitude of society: that of restraining the judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our [Federal] Government, but what I call our foreign department.

"Foreign department” — To give everyone time to fully digest the meaning of that appropriate, bitterly ironic insult, the Senators might call for another break.

(During this break some open-minded listeners will surely marvel at Jefferson’s incredible prescience as they muse upon the insidious, illogical doublespeak spewed by liberal judges who fiercely argue for the good that flows from their being "informed” by foreign law even as they proclaim they are not invoking the inarguably cherry-picked foreign statue to decide the case at hand.)

When the hearing reconvenes, the Senators ought to continue in a perfectly objective tone (leaving sarcasm to the mind of every American beholder) as they ask this question:

"Do you believe it is possible to reconcile everything Thomas Jefferson stood for with the idea that American democracy is best inoculated against the insidious virus of despotism when justices of the Supreme Court base their decisions upon "penumbras” they claim are formed by "emanations” that radiate from the Constitution’s words as well as upon personal interpretations of what constitutes "evolving standards of decency that mark the progress of a maturing society”?

With questions such as that, the contemporary Senators, as well as those who follow them, will define themselves as worthy of the title "distinguished.”

But infinitely more important than that, they will deserve being remembered as courageous, honest, and faithful defenders of their nation’s highest ideal if, with the help of Thomas Jefferson and Plain English, they regularly continue the discussion about "judicial activism” with The people...[who are] the only safe guardians of their own rights...the only sure reliance for the preservation of our liberty.