Little Chuckie Schumer, allegedly the Senior Senator from New York, is a very clever 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 for the Supreme Court that would interpret law, rather than make it –thus obligating him to persuade people rather than dictate to them.
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 thereof.”
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?
HA: Atheism 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)?
HA: No, 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 to legislate?
HA: Around 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 right?
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 become right?
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 become right?
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 not?
HA: It 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 the Constitution?
Subject – Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?
SCQ: Should the Court err on the side of upholding a law?
HA: Ideally, 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 upheld?
HA: So, 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?
SCQ: The 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 No.
SCQ: Once the right to privacy has been found – as in Griswold and Roe – under what circumstances should the Supreme Court revisit that right?
HA: Where 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?
SCQ: How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?
HA: Slavery 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?
HA: The equal protection clause applies to individuals, not groups. Sounds Racist.
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?
HA: The one who bases his opinions on the Constitution. Remember the Constitution?