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August 13, 2005
Justice Sunday II: My Priorities

Trip preparations have kept me busy this morning and mostly away from doing the reading necessary for substantial blogging -- and most of that went into analyzing the 9/11 Commission response from last night. As most of you know, I will live-blog from Justice Sunday II in Nashville, where a number of speakers will rally conservatives to support federal-court nominations of the Bush administration and fight against any filibusters that threaten up-or-down votes in the Senate. JSII is sponsored by the Family Research Council, which has its faith-based interests in mind for this campaign against the filibuster.

I am happy to have been invited to this event -- and in the interest of full disclosure, CQ readers should know that JSII has paid for my travel arrangements to and from Nashville, including my air fare and my hotel. As I discussed earlier, without that I would have turned the invitation down due to another project which is still developing, and my car, which unfortunately had about $900 of developments this past week anyway. JSII made it possible for me to attend, but they put no strings on my analysis and in fact went out of their way to invite bloggers who would have provided plenty of criticism, even asking for my recommendation of good liberal bloggers. (Unfortunately, all of my recommendations had scheduling conflicts -- it came close to the last minute.)

In order to set this event properly for CQ readers, I want to explain my outlook on the conjunction of religion and judicial philosophy. I think that religious tests in either direction for judicial nominees is not only unconstitutional but simply a bad idea. It creates an impression that certain faiths and/or philosophies create different classes of Americans and citizenry, which eats away at the body politic. We have seen ample evidence of that over the past twenty to thirty years with the increasingly aggressive treatment of Catholics and evangelicals by the Senate, especially among the Democrats -- but we must not allow the lack of faith to create the same hostility among conservatives, either.

What the Constitution proposed and our founding fathers wanted were judges that did not make value judgments or create policy at all: on the bench, their only Bible was the Constitution and their only philosophy was the Law. That distinction is crucial to the operation of a truly independent judiciary. Judges who base decisions on other outside influences -- whether that be Leviticus or a Luxembourg judicial opinion -- fail the test of independence and the safeguarding of the American Constitution.

The judiciary exists to ensure that the will of the people, as expressed through the Legislature, meets the safeguards built into the Constitution, and that the will of the States, as expressed in the Executive (originally), enforces it within the same parameters. Under those conditions, the religion of the judge has no bearing on the judgemnt rendered. The judiciary still fulfills its role as a co-equal branch under the Constitution, but the power to set policy remains with the people, as the founders intended.

Instead, what we have is an appointed shadow legislature, fed by both sides over the past several decades, setting policy in order to give Congress an easy and somewhat cowardly way of avoiding difficult policy debates. That creates the affliction of conflicting interests that has stripped the judiciary of its true independence and created the Inquisitorial atmosphere now familiar but once unthinkable in the Senate. The Judiciary Committee members now demand not independence but a declaration of intent to follow their preferred orthodoxies, when the only loyalty that a nominee should proclaim is to the Constitution. Senators now demand an oath to "privacy rights", stare decisis, God, and who knows what else.

What I want to hear from Justice Sunday II is a demand from these speakers that religion and the lack of it disappear from these proceedings in the future, replaced by a demand to avoid any influence except the Constitution and respect for the will of the people. I don't want to hear about promoting religious judges as a counterbalance to whatever we have now; I want to hear people speak about meaningful and lasting reform that will restore the system so that the will of the people sets the policy. If we return to that system, no one need fear the personal predilections of the men and women we appoint to the bench -- we only need to ensure that they remain loyal to the Constitution in the matters that come before them, and that they have the competence to understand that.

When you read my live blog, that will be the message I wait to hear.

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Posted by Ed Morrissey at August 13, 2005 10:31 AM

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» Justice Sunday II from Conservative Musings
The second Justice Sunday will be occurring at 7pm tomorrow at Two Rivers Baptist Church in Nashville, TN. Several bloggers have been invited to blog during it, including Bill Hobbs, Lance McMurray of Red State Rant, Ed Morrissey of Captain's Quar... [Read More]

Tracked on August 13, 2005 11:20 PM

» Justice Sunday II from NashvilleFiles Blog
Live coverage of Justice Sunday II starts here this afternoon. Press conference at 3:00pm, so look for updates sometime after that. 2:23: I must be early...the media room has only a few people here and there (picture). I've set up... [Read More]

Tracked on August 14, 2005 2:37 PM

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