Schumer Has Questions
Gearing up for the next SCOTUS nominee...
[by Mac Johnson] 7/20/05
Schumer, allegedly the Senior Senator from New York, is a very
lawyer and an advocate for all things
liberal being implemented through the court system, so that he
will not have to argue for them in a democratic debate he knows
he would lose. He is thus, very, very concerned that President
Bush might pick a nominee (like, say... John Roberts) for the
Supreme Court that would interpret law, rather than make it --thus
rather than dictate to them.
Johnson is a freelance writer and biologist in Cambridge,
Mass. Mr. Johnson holds a Doctorate in Molecular and
Cellular Biology from Baylor College of Medicine. He
is a frequent opinion contributor to Human
Events Online. His website can be found at macjohnson.com [go
to Johnson index]
Recently, Senator Schumer addressed a gathering of the beneficiaries
of liberal judicial activism and made
a long, long, long speech designed to show A) that he is
a very clever lawyer and B) that he has a few specific questions
for the eventual nominee. Below is just a sample of Chuckie's "aren't
I very clever" 2,600 word Guantanamo-style interrogation,
along with some helpful answers, so that he can spend more time
in the confirmation hearings asking pertinent questions, such
as "Is the nominee qualified?"
Subject: The First Amendment and
the Establishment Clause.
Schumer's Clever Question (SCQ): Under
the Establishment Clause, what, if any, is the appropriate
role of religion in Government?
Helpful Answer (HA): The
Establishment clause does not regulate the role of religion
in Government. It
regulates the role of Government in religion. It says quite
simply that the Government cannot set up a National religion,
such as the Church of England, and then force the citizenry to
join it. The role of religion in government is undefined
and, quite literally, unlimited.
Perhaps this might be a little more clear if you read the amendment,
which states: “"Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
Note that it does not say: “"Congress shall make
lots and lots of laws prohibiting the free exercise of religion
in or near schools, courts, legislatures, ball fields, public
roads, town halls, or telephone line right-of-ways. And
should Congress desire such prohibitions but lack the honesty
and fortitude to enact them, it may empower unelected Courts
to do their dirty work."”
See the difference?
SCQ: Must the Government avoid involvement
with religion as a whole, or is the prohibition just on Government
involvement with a specific religion?
is a religious belief. Agnosticism
is a religious belief. Deism is a religious belief. And
Christianity, Judaism, Islam, Buddhism, Hinduism, Jainism, Sikhism,
Animism, and Paganism are religious beliefs. Explain to
me how government can “"avoid involvement with religion
as a whole."” Be brief.
SCQ: Do you agree that states can regulate
activities at religious ceremonies, as the Supreme Court held
in allowing Oregon to prohibit the use of peyote for Native
American tribal ceremonies in Employment Division v. Smith (1990)?
clearly, human sacrifice is a protected form of religious expression. Now
I feel a need to express some religion.
Subject - Interstate Commerce.
SCQ: How closely connected must [a] regulated
action be to interstate commerce for Congress to have the authority
sixteen inches, tops. Oh wait,
I missed that this was a rhetorical question that serves only
as a platform from which you can now demonstrate your cleverness
and depth of thought. Be brief.
Subject - Under what circumstances
is it appropriate for the Supreme Court to overturn a well-settled
precedent, upon which Americans have come to rely?
SCQ: Does your answer depend at all on
the length of time that the precedent has been on the books?
HA: How long does it take for wrong to become
SCQ: Does your answer depend at all on
how widely criticized or accepted the precedent is?
HA: How many people must be wrong before they
SCQ: What if you agree with the result
but believe the legal reasoning was seriously flawed? Does
that make a difference?
HA: Sounds Marxist.
SCQ: Does it matter if the precedent was
5-4 in deciding whether to overturn it? Does it matter if was
a unanimous decision?
HA: How many judges must be wrong before they
SCQ: Do you agree with the 1989 decision
in which the Supreme Court held that it was constitutional
to execute minors (Stanford v. Kentucky), or do you
agree with the later 2005 decision, which held that it was
unconstitutional (Roper v. Simmons). Was the Court
right to overturn its precedent 16 years later? Why or why
is not the length of time between the decisions that makes
one of them wrong. It is the fact
that the second is unsupported by the text of the Constitution. Remember
Subject - Under what circumstances
should the Supreme Court invalidate a law duly passed by the
SCQ: Should the Court err on the side of
upholding a law?
the Court should not err. Do
you wish the Court to err?
SCQ: How closely tied must a law be to
an enumerated right of Congress under Article I for it to be
you're asking if the powers of Congress should be somehow defined
by the part of the Constitution that
begins “"The Congress shall have power to...?"
Subject - Is there a constitutionally
protected right to privacy, and if so, under what circumstances
does it apply?
word “"privacy"” is
not mentioned anywhere in the Constitution. In your view, does
that mean it is wrong for the Supreme Court to interpret the
Constitution as conferring such a right?
HA: The Constitution is a Rorschach blot to
you, isn't it?
SCQ: Do you believe that Roe v. Wade (1973)
was correctly decided? What is your view of the quality of
the legal reasoning in that case? Do you believe that it reached
the right result?
HA: No. Crap. And
the right to privacy has been found –- as in Griswold and Roe –-
under what circumstances should the Supreme Court revisit that
was this right before it was “"found"” --in
the couch cushions of the Constitution? “"Made
up"” and “"found"” are not synonyms. This
decision should be revisited just as soon as 5 Justices realize
that A) The Constitution makes no mention of this “"right,"” which
is why it had to be “"found,"” and B) Their
job is to enforce the limitations placed on government by the
actual Constitution. Remember the Constitution?
Subject - Do you describe yourself
as falling into any particular school of judicial philosophy?
do you square the notion of respecting “"original
intent"” with the acceptance of the institution
of slavery at the time the Constitution was adopted?
was Constitutionally legal in the United States from the adoption
of the Constitution in 1789 until
the passage of the 13th amendment in 1865. It was wrong
throughout. Note however, that Courts and Judges had nothing
to do either with the protection of Slavery in the original Constitution
or the ending of it via the 13th amendment. It was done
through the normal legal democratic process in both cases. Doing
things legally and democratically is still an option today. Also,
do you really fear a return to slavery or are you just trying
to sound clever and play the race card?
SCQ: Does a law violate the Equal Protection
Clause if it affects different groups differently, or must
there be a discriminatory intent?
equal protection clause applies to individuals, not groups. Sounds
SCQ: Which Supreme Court Justice do you
believe your jurisprudence most closely resembles and why?
HA: Senator Schumer, if you could be any animal
for a day, which one would you choose and why?
SCQ: When the Supreme Court issues non-unanimous
opinions, Justice Scalia and Justice Ginsburg frequently find
themselves in disagreement with each other. Do you more frequently
agree with Justice Scalia's opinions, or Justice Ginsburg's?
one who bases his opinions on the Constitution. Remember
the Constitution? tOR
This piece first appeared at Human
2005 Mac Johnson