- The Washington Times - Sunday, June 21, 2009

ANALYSIS/OPINION:

The nomination of a new justice for the Supreme Court brings a core question before the Senate and the nation — What is the proper role of a federal judge?

To answer this question, we must begin at the source. We must return to the words and ideas of those who founded this nation, whose foresight resulted in the greatest republic this world has ever known.

Our Founders created a court system that was independent, impartial and restrained and that, through a faithful rendering of the Constitution, served as an indispensable check against the intrusion of government on the rights of man.

In order to fulfill this mandate, the courts had to be separated from the other branches of government. Article I of the Constitution declares that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Article II declares that “the executive Power shall be vested in a President of the United States of America.” And Article III declares that “the judicial Power of the United States shall be vested in one supreme Court.”

These words are unambiguous. The judiciary has no power to make law or enforce it. In Federalist No. 47, James Madison cites the Constitution of Massachusetts, which decrees: “The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Founders knew that the courts could not fairly judge laws if they had a hand in making them, nor could they be counted on to curb the excesses of legislative and executive power if they shared in it.

In Federalist No. 78, Alexander Hamilton quotes the French philosopher Montesquieu: “There is no liberty if the power of judging be not separated from the legislative and executive powers.”

For this reason, the courts are limited to the interpretation and application of law. At no point may judges set policy or substitute their political views for those of the elected representatives or of the people themselves.

“The interpretation of the laws is the proper and peculiar province of the courts,” Hamilton explains. Judges must have an “inflexible and uniform adherence to the rights of the Constitution.”

To ensure that this narrow but crucial charge could be met, our Framers took steps to shield the judiciary from political influence. Article 3 effectively grants judges a lifetime appointment - the only federal office with this privilege.

Hamilton referred to this arrangement as “one of the most valuable of the modern improvements in the practice of government” and as the best step available to “secure a steady, upright, and impartial administration of the laws.”

He hoped that the courts, set apart from the shifting tides of public opinion, would be better suited to act as “faithful guardians of the Constitution,” to stand against “dangerous innovations in the government.”

In other words, courts are removed from the political process not so that they are free to reinterpret the Constitution, but so that they are free from the pressures of those who wish to do just that.

In recent years, these pressures have grown substantially. There is an increasing movement that seeks to redefine the court and shift the balance and separation of federal power. This movement believes that judges have the authority to impose their political will on the populace, to alter the meaning of the Constitution and to allow personal and political considerations to enter into their judgments.

If we allow this activist philosophy to overtake our court system, we will not only abandon the independent and impartial judiciary left to us by our Founders - which has been the envy of the world - but we also will strike at the very heart of our liberties.

How can we depend on the protections of justice if justice is no longer blind and those who weigh the scales can tip them in one party’s favor?

How can we uphold the rule of law if a judge has the power to place his empathy before the evidence and his personal politics before the democratic expression of the public will?

And how can we enjoy the security of our rights and the full blessings of our freedoms if the highest court in our land is not bound to the words and promises of our Constitution?

Sen. Jeff Sessions, Alabama Republican, is the ranking member of the Senate Judiciary Committee. In advance of the confirmation hearing for Judge Sonia Sotomayor, Mr. Sessions is delivering a series of speeches on the Senate floor on the proper role of a federal judge in America and to make the case for judicial restraint. This article was adapted from the first speech earlier this week.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times is switching its third-party commenting system from Disqus to Spot.IM. You will need to either create an account with Spot.im or if you wish to use your Disqus account look under the Conversation for the link "Have a Disqus Account?". Please read our Comment Policy before commenting.

 

Click to Read More and View Comments

Click to Hide