Frank’s Case Book

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” — Article VI, Clause 3 of the US Constitution.

“I, [NAME], 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 [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States. So help me God.” — Oath of Office for a Supreme Court Justice.

Even though there is no formal religious test for office, some on the Left have questioned the suitability of Justice John Roberts, Jr. for the Supreme Court because he takes his Catholic faith seriously. The implicit assumption is that a Catholic can not render a judicial decision with respect to abortion consistent with the law since the Catholic Church has a strong position against abortion. Make no mistake. The question is primarily about abortion.

Questions about Roberts’ religion on the Left, from the likes of Christopher Hitchens and E. J. Dionne are only being broached because of abortion. The Catholic Church is also strongly (though not as strongly) against capital punishment. However, the legal status of capital punishment under a Catholic judge is not the issue that worries Dionne or Hitchens. Moreover, if a Conservative Protestant where to question the qualifications of a Catholic judge because of the Church’s stand against capital punishment, he or she would be loudly and properly chastised for religious intolerance. However, in the service of abortion, the Left and the media that support the Left, have difficulty in recognizing any limits of probity.

Hitchens’ motivation is transparent. He is fundamentally anti-religious and doesn’t trust anyone of deep religious conviction, be it Mother Theresa or Judge Roberts. That is why Hitchens is one of the few on the Left that is so eloquently persuasive about the necessity of fighting Islamofascism in Afghanistan, Iraq, and elsewhere. With others on the Left, Hitchens stands against fascism, but he reserves special opprobrium for religiously-motivated fascists.

By contrast, Dionne’s questions about the relationship of faith and the state are far more serious and subtle. Dionne and Conservatives share a common belief that religious faith informs our values and who we are as a people, a community, and as a country. Religious and ethical beliefs affect the way we help others and the role we expect of the government acting on our behalf to act. The religious culture of a country defines who we are and how we govern. Hence, religion ought not to be relegated solely to private spirituality, but should have an important voice in the public square.

When then are the general ethical and religious perspectives of a leader important? How should such questions appropriately enter the public discourse? While there are no particular religious doctrinal tests to apply, surely we have to appreciate the values of our leaders and those values are many times informed by religious belief. For example, if a potential leader were an avowed pacifist, whether by religious or ethical conviction, it would be an important factor in assessing the suitability of someone who might be our Commander-and-Chief or someone who might vote on military appropriation bills.

It is reasonable for a citizen to weigh the full character, including the intelligence and religious and ethical underpinnings of our leaders — at least the ones we vote for. Those leaders are the ones we choose to act on our behalf. The law and Constitution allow no restrictions on religious affiliation for officials. Though we as voters ought not to vote on narrow sectarian grounds, is it not responsible to weigh the entire set of human qualities and beliefs in voting for our leaders?

First, though we as voters can consider a broad range of judgment criteria, our representatives cannot use religious litmus tests in their capacity as government officials. This would tie state decisions too directly to religious affiliation. A Senator of one particular religion questioning potential judges of a different religious belief at a public hearing would give the unseemly appearance of an inquisition.

Moreover, judges are not political leaders. They are ideally neutral arbitrators of existing law. Dionne writes, “President Bush has spoken about the political implications of his faith. His nominee should not be afraid to do the same.” Dionne skirts by the key point, but leaves it unexamined blinded by the Left’s misunderstanding of the role of judges. Bush is a political leader and can be judged as a politician. Judges, contrary to the Liberal intuition, ought not to be political and as such should be evaluated under a narrower range of criteria.

Of a judge, we may query about judicial intelligence, temperament, and philosophy. Of his other convictions, we only need to know his or her fidelity to the oath to “…faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the US Supreme Court] under the Constitution and laws of the United States.” If a potential judge can take that oath with integrity, then examination of his or her religious convictions descends more into religious bigotry.

The notion that Judge Roberts’s Catholicism makes him an inappropriate selection for the Supreme Court says more about the intolerance of a troubling undercurrent in modern Liberalism than it does about Judge Roberts. It reflects more of the sacrifice of all Liberal jurisprudence at the altar of unrestricted abortion rights. Protests around abortion clinics, limiting the First Amendment right to peaceably assemble, were prohibited in service of abortion. Now traditional Liberal religious tolerance is being lost in service of abortion.

One cannot help but feel a little sympathy at the frantic floundering of Liberals in the wake of the nomination of Judge John Roberts, Jr. to the Supreme Court. Liberals have the upsetting and accurate notion that Roberts is an attractive, smart Conservative with too little of a paper trail to criticize. The Bush Administration has carefully prepared the judicial nomination battle field by cutting off potential Liberal avenues of attack.

Roberts has the appearance and deportment of a choir boy, as opposed to the professorial pedant arrogance of Judge Robert Bork. Bork’s demeanor appealed to like-minded Conservatives, but scared off others. Moreover, when Bork was “borked” in 1987, the Reagan Administration was surprised and unprepared for the mean-spirited and personal assault on Bork from the Left. This episode initiated the current trend toward highly-polarized federal court confirmation confrontations. In the Roberts case, the Bush Administration was able to maintain secrecy until the formal announcement of the nomination, allowing the Administration to frame the nominee before opposition groups could effectively undermine Roberts.

In addition, President George Bush at least went through the motions of consulting with members of the Senate on both sides of the aisle. Lack of consultation can not be effectively used as an excuse to delay Roberts’ confirmation or even a vote on his confirmation.

Strategic planning and frustration have largely reduced Liberals to rambling incoherence. In order to excavate potentially incriminating information, some Liberals now argue that attorney-client privilege should be violated and written legal advice Roberts wrote on behalf of the government when in the Solicitor General’s Office ought to be released. Surely they can not really believe their own arguments in this regard.

Liberals are the ones who normally claim that the Constitution is a living and breathing document that should change with the times, unmoored by the text or the original understanding of the Founders. Yet now they are arguing it is extreme for the Courts to re-examine “settled law” (at least the Roe v. Wade abortion decision). In other words, Liberal victories are to be forever enshrined, but the Constitution should remain open to future Liberal extension. It is difficult to believe that there are some who maintain that same-sex marriage is a Constitutional right and at the same time claim Courts should not question settled law. Liberals find themselves in an intellectual pretzel, twisted and contorted by both their inability to win political victories and their undemocratic reliance on the courts to impose their agenda.

Unless there is some character issue lurking that will disqualify Roberts, the nominee will be confirmed. Democrats and Liberals (and Republicans and Conservatives for that matter) should exercise due diligence in vetting Roberts before the Senate Judiciary Committee and the full Senate. However, Liberals should avoid rancor and mean-spiritedness. If a nominee as squeaky clean and so obviously intellectually and temperamentally qualified for the Court as Roberts is attacked, then the Liberal opposition will lose what little credibility they have with the public. Such an erosion of credibility would make it difficult in the future for Liberals to oppose a more firebrand Conservative that Bush might nominate in the future.

Some Conservatives too need to take a deep breath and show a little faith that Bush’s nominee will not prove to be another Judge David Souter. David Souter was nominated by the first President George Bush and has moved to the Left end of the US Supreme Court. Firebrand polemicist Ann Coulter argues that Bush’s nominee is “Souter in Roberts’ Clothing.” Like-minded Conservatives would have preferred an outspoken Conservative Constitutionalist with a clear judicial record. This would have provided assurance that a Republican judicial nominee would not “grow” in the position and eventually and inevitably succumb to the temptation of the law and try to legislate from the Court.

In the Weekly Standard, Fred Barnes reports that the current Bush Administration too was concerned, if not pre-occupied, about avoiding another Souter. When Souter was nominated he was not carefully vetted or questioned by the administration of the first President Bush. In lieu of a careful examination, the first Bush relied on recommendations of Chief of Staff John Sununu and Republican Senator Warren Rudman. Barnes assures us that not only was Roberts questioned extensively on his judicial philosophy, but also that there were backdoor assurances by Conservative judicial saint and Associate Supreme Court Justice Antonin Scalia that Roberts would be a welcome addition to the Court.

Perhaps as important as Roberts’ judicial philosophy is his style. While the blunt and colorful decisions of Scalia and Justice Clarence Thomas are enjoyable to read, perhaps they tend to alienate judges who otherwise might be more sympathetic. Roberts’ quieter style and legal expertise might be able to sway more justices toward Conservative positions than Scalia and Thomas did. Given the narrow margin of some decisions, that talent might prove crucial.

Liberals should accept the unavoidable with uncharacteristic grace and Conservative should support Roberts without, an all too characteristic, excessive fear of mistakes past.

The shrillness of the response on the Left at the prospect of President George W. Bush appointing a justice to the US Supreme Court after the retirement of Associate Justice Sandra Day O’Connor is a direct measure of just how out-of-kilter the jurisprudence of the Supreme Court has become. Even before knowing who the President’s nominee will be, Senator Chuck Schumer(D-NY) was overheard declaring, “We are contemplating how we are going to go to war over this.” The martial ardor of Schumer and his fellow Democrats and Liberals is a consequence of out-of-control judicial activism and repeated losses at the polls. After losing the Presidency, Congress, the Senate, and the bulk of state legislatures, the courts, led by judicial activists, remain the only way to implement the Liberal agenda. Elections matter. Reactionary Liberals are desperately trying to hold on to past gains and to implement laws that have been largely repudiated by the electorate.

If courts and the Supreme Court, in particular, just had sufficient self-discipline to interpret the law and the US Constitution according to the judicial philosophy of original understanding, then in principle the political inclinations of a judge is immaterial. If judges did not impose their own views of what the law ought to be, then their views would not be particularly relevant. However, Liberals have developed over a century a theory of jurisprudence whereby presumably enlightened judges, can breathe fresh life into laws and alter them to suit Liberal sensibilities. Once such jurisprudence is accepted, the political philosophy of the nominees becomes very important. Indeed, even a return to a judicial philosophy of original understanding becomes a threat.

There have been many controversial court decisions, most recently about the states’ right of eminent domain and about the appropriate interpretation of the First Amendment prohibition that Congress shall make “no law respecting an establishment of religion or prohibiting the free exercise thereof.” However, abortion is the colossal issue that has focused all the unwanted attention on the Supreme Court. Abortion decisions, from Roe v. Wade that prohibited the limitation of abortions before fetus viability to Madsen v. Women’s Health Center where the Court limited the free speech rights of protestors around abortion clinics, have done the most pernicious damage to constitutional jurisprudence. In order to permit the widest possible latitude for abortions, the Court has found it necessary to distort the Constitution far more than for other issues. It will be difficult for the Court to recover from this damage.

The irony is that if Roe v. Wade were overturned, laws affecting the bulk of pregnant woman would probably remain largely unchanged, consistent with the general disposition of the country. Most of the states would voluntarily allow abortions in the first trimester of pregnancy. However, against the desires of the rabid abortion lobby, many states would limit late-term abortions and require parental notification before minor girls are permitted to obtain an abortion. Liberals are fighting to retain a rather extreme position on abortion: unfettered of abortion on demand for anyone until birth.

On other issues, the eagerness of Schumer and his Liberal allies to go to “war” over a Supreme Court nomination is also a consequence of an accurate assessment that the public is largely against them on many questions from gay marriage to the Court’s excessive hostility to religion.

Since the Court has erected a fortress of extreme positions, it will take at least a couple of decades of Conservative decisions on the Court to restore judicial respect for the original understanding of the Constitution. Until the US Supreme Court returns to being a court rather than a super legislature, nominations to the Supreme Court will continue to be high-voltage disputes. Once restoration is achieved, Liberals, if they are to win political victories, will have to do so the hard way. They will have to persuade Americans of the prudence of their ideas.

Liberals retain an inherent rhetorical advantage in arguing about legal cases before the US Supreme Court. When the current state of “settled law” is inconvenient for the Liberal agenda, Liberals have no problem arguing that the US Constitution should be a “living document” adapting to new exigencies. Those old rulings and precedents should not stay the hand of a modern court. On the other hand, if the current state of settled law favors Liberal positions, they criticize Conservatives for wanting to change previous US Supreme Court decisions. The result is a ratcheting effect. Liberal-activist victories are ensconced as permanent fixtures and immutable law, while Conservative-strict-constructionist victories are always provisional, subject to review and reinterpretation.Despite Conservative reverence for precedent, even Conservative jurisprudence recognizes that precedent is less constraining on the Supreme Court than it is in lower courts or legislatures. If a legislature gets a law wrong, it can always enact a new one. If a lower court interprets the law incorrectly, higher courts have an opportunity to over rule it. If the US Supreme Court gets it wrong, there is little recourse. Except in the extreme and difficult case of a Constitutional Amendment, the response by elected officials can at best be made along the margins. The US Supreme Court is the primary institution for correcting previously incorrect decisions. If not, the country would be burdened with incorrect decisions forever. Schools might still be segregated if the “separate but equal” interpretation of the Fourteenth Amendment in Plessy v. Ferguson could not have been overturned by a subsequent Court decision in Brown v. Topeka Board of Education.

The time between when the US Supreme Court makes an incorrect decision and later has an opportunity to correct it can be very long, many years or decades. This inertia is salutary. We would not want US Supreme Court jurisprudence flapping in the wind responding to every shifting judicial breeze. Legislatures can sometimes mitigate some of the more extreme inequities associated with bad Court decisions.

Recently, in a 5-4 decision, the US Supreme Court in Kelo v. New London extended the reach of eminent domain, allowing governments to seize private land not only for public use, but to transfer the land to private use for government convenience. The decision has largely been panned. In response, Congress this week passed by a strong bi-partisan 231-189 majority (192 Republicans for, 31 against, 39 Democrats for, 157 against) an amendment to an appropriations bill that would withhold federal funds from any project that uses this extended power to seize private land. The appropriations bill covers spending by the Departments of Transportation, Treasury, and Housing and Urban Development [1].

Despite any pleasure derived by circumventing an incorrect Court decision, Conservatives should always be a little wary against such federal bullying of state and local governments, since it undermines the spirit of federalism. By-and-large many matters should be left to the discretion of local governments. However, one can be excused in this case because the federal bullying is to mitigate the bullying of private land owners by state and local governments. Such are the compromises that must be made when the Supreme Court gets it wrong, way wrong.

[1] Allen, M. and C. Babington, “House Votes to Undercut High Court on Property: Federal Funds Tied to Eminent Domain,” Washington Post, July 1, 2005, A01.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Fifth Amendment to the US Constitution.

The Fifth Amendment to the US Constitution provides important rights to individuals against arbitrary action by the state. These zones of individual protection have generally grown wider over time. An important exception in this expansion is the “Takings Clause,” whose protections have dwindled over time. The Takings Clause of the Fifth Amendment basically requires two things: that private property seized by the state only be taken for “public use” and such taking needs to be accompanied by “just compensation.”

Typically this clause has been invoked when the state seizes land under eminent domain for public use as in a park, hospital, highway, or sewage treatment plant, where the public actually comes to own the land. In other cases, the court has permitted the transfer to a private entity when the land will be used for the broad public purpose of a “common carrier.” Principle examples include railroad and power line right-of-ways.

In its latest ruling in Kelo v. City of New London, by a slim 5-4 majority, the Court erased any residual protection against arbitrary state condemnation. Essentially the words of the Takings Clause have been changed from, “…nor shall private property be taken for public use, without just compensation” to “…nor shall a person be deprived of just compensation, when private property is taken at arbitrary public discretion.” One key requirement of the Takings Clause is thus removed.

Even Justice John Paul Stevens, writing for the majority, concedes that under the “public use” provision the state “may not take the property of A for the sole purpose of transferring it to private party B, even though A is paid just compensation.” Moreover, the Court concedes that the state may not cavalierly assert a public purpose as a pretext for a taking on behalf of a private entity. Nonetheless, the Court just made that very thing much easier to do.

Pfizer, a large and influential pharmaceutical company, is building a new research facility in New London, Connecticut in conjunction with a city redevelopment plan. By taking the land of the petitioners under eminent domain as part of the redevelopment plan, the city of New London asserts that the concept of “public use” is expansive enough to include the potential increase in jobs and government revenue when property is transferred from one private concern to another. The petitioner Susette Kelo and nine others involved in the suit are pushed out to make room for the economic development based on Pfizer’s new facility. The property of the petitioners was not blighted, just inconvenient. The Supreme Court in the Kelo opinion endorses the expansion of state power.

In her pointed dissent, Justice Sandra Day O’Conner argues that under the logic of the Court in this case, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Moreover, private negotiations in transactions may be altered with the knowledge that a powerful company might be able to persuade a local government to take property under the auspices of an economic development plan.

In the majority opinion, Stevens argues that the state can be restrained from abuse of the takings powers by the political process. The people can vote out those leaders who use eminent domain excessively. However, if the political process were a sufficient and entirely reliable protection of individual rights, there would be no need for the Bill of Rights and little need for judicial review. Indeed, there are many times that the majority of a local area would be happy at the use of eminent domain against an unpopular land owner. Tyranny is tyranny, even if practiced by a majority. Indeed, it is precisely against potential public tyranny that the Bill of Rights was enacted.

The case should be especially illuminating for Liberals who devote excessive faith in the power of government for good. The Libertarian part of the Conservative soul realizes that while government power can be used for good, it will inevitably be applied in the service of the politically powerful. Big companies like Pfizer will likely always be able to persuade local governments of the public benefit pursuant to the use of eminent domain on the company’s behalf.

This is why even dependably groups Liberal groups like the National Association for the Advancement of Colored People (NAACP) actually sided with the land owners in this case. The NAACP recognizes that frequently it is the poorest and the least influential, oft times African-Americans, who bear the greatest burden of aggressive urban renewal and economic development. African-Americans have too often been exploited by local governments to be as sanguine as the Court about reliance on the wisdom of local governments unfettered by Constitutional restraints. It should not go unnoticed that it was the Conservative side of the Court with its devotion to an “original understanding” jurisprudence that is protecting the individual against the predations of activist governments acting on behalf of large moneyed interests.

Liberals have always been vocal about seeking Constitutional protections for privacy rights, but often fail to appreciate the intrinsic linkage between property rights and personal liberty. Freedom and ability to control our lives increases with increasing property. Without diminishing the value and ability of those without resources, who typically has a greater scope of action, one with resources or one without? Limiting property rights directly reduces personal freedom.

Fortunately, the victory against freedom represented by the Kelo decision was a narrow 5-4 one. If a more Conservative Supreme Court emerges during President Bush’s second term, despite inevitable Liberal Democratic opposition, perhaps this ravaged ground of freedom, strip-mined by recent Court decisions, can be reclaimed to a more pristine condition.