Reno Gazette Journal September 16, 2018
Last week, the Senate Judiciary Committee began confirmation hearings for Judge Brett Kavanaugh’s nomination for the Supreme Court of the United States (SCOTUS). Liberal Democrat Senators Corey Booker and Kamala Harris, supported by several of their far-left colleagues, used the hearing to further their presidential ambitions by repeatedly interrupting the hearings. There were over 40 interruptions by the Senators in the first hour alone! That doesn’t even include the interruptions by liberal activists and Looney Tune groups like Code Pink.
Lost in this circus of a hearing is the main difference between the two different types of judicial philosophies. The media would like to label justices as “conservative” and “liberal”. While this labeling helps to polarize the public and line up the partisans on both sides, it needlessly politicizes a great American institution, the SCOTUS. Such labeling of justices is disingenuous and misses the mark by a wide margin. In reality, the justices belong to two different schools of thought: The originalists, meaning those who rule based on the original intent of the constitution, and the proponents of the living constitution, meaning those who believe that the constitution should be interpreted in consideration with public opinion and current day morals.
An Originalist justice “call balls and strikes”, as Chief Justice John Roberts would say. In contrast, the living constitution school of thought expects the Justice to factor in public opinion and morals of the day. The problem with the living constitution is that morals and public opinions change from one day to the next and from one location to another. Under the living constitution, the same Justice can rule one way today and the exact opposite a few years from now. Under the living constitution, what is considered morally acceptable by a judge in San Francisco, CA will be viewed as totally repugnant by another judge in Billings, MT. Given enough time, the living constitution will collapse under its own weight as contradicting judicial decisions mount from one decade to the next and from one location to another.
Judge Kavanaugh is an Originalist. What the Liberal Senators want is a justice who subscribes to the living constitution. I am all for the laws reflecting public opinion and morals, but that is the responsibility of the Legislative branch, not the Judiciary. In demanding that a Judicial nominee subscribe to a living constitution, these Senators want to outsource their Legislative responsibility to the Judiciary. The Judiciary should not be used to backdoor legislation that the Senators have neither the courage nor the support to pass.
One final point: The Democrat leader in the US Senate, Senator Dick Durbin, has said that Democrat Senators should be willing to sacrifice their Senate seats to prevent Judge Kavanaugh from being confirmed. Nothing runs more contrary to the intent of our founding fathers. Most of key Judiciary related items of our founding fathers are outlined in Federalist #78, authored by my favorite founding father, Alexander Hamilton. Hamilton wrote, “The Judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; …. it may truly be said to have neither FORCE nor WILL, but merely judgment”. Dick Durbin’s statement illustrates how detached liberals have become from our founding principles.