About AJ DiCintio
A.J. DiCintio is a Featured Writer for The New Media Journal. He first exercised his polemical skills arguing with friends on
the street corners of the working class neighborhood where he grew up.
Retired from teaching, he now applies those skills, somewhat honed and
polished by experience, to social/political affairs.
Don’t Question a Supreme Court Nominee Without Him June 9, 2009
As soon as the "activists” of the
Warren Court made it clear that in liberal jurisprudence a judge’s personal
beliefs and empathies can trump even explicit language of the Constitution,
conservative Senators should have done a number of things, including
initiating a tradition whereby they would ask every nominee for the Supreme
Court to respond to Thomas Jefferson’s thoughts about the federal judiciary.
But they didn’t, thereby failing the nation regarding two important
...To continually battle against and educate the public about a profound
threat to government of "We the people.”
...To cause a whole lot of liberals who have proudly celebrated a whole
lot of Jefferson-Jackson Days to do a whole lot of very public wriggling
But all is not lost regarding that unforgivable act of negligence; for
the University of Virginia’s Jefferson Digital Archive makes it easy for
contemporary Senators to live up to the oath they took to "support and
defend the Constitution of the United States against all enemies,
foreign and domestic” as they simultaneously honor the great Founder.
Here, for example, are quotes the Senators could find in a few minutes.
The judiciary of the United States is the subtle corps of sappers and
miners constantly working under ground to undermine the foundations of
our confederated fabric. They are construing our Constitution from a
co-ordination of a general and special government to a general and
supreme one alone. This will lay all things at their feet, and they are
too well versed in English law to forget the maxim, "boni judicis est
ampliare jurisdictionem.” — "[The work of] a good judge is to expand
Of course, when asked to react to this passage, some nominees will
regurgitate well-rehearsed platitudes about their devotion to the
principle of Federalism. Therefore, conservative Senators must invite
every nominee to enumerate a dozen or so very important rights they
perceive the Constitution as reserving exclusively to the states.
But the Senators cannot stop there; for it is essential they refer to
specific cases, for example, Kennedy v. Louisiana (June ’08), in
which the Court forbad (5-4) the execution of anyone who rapes a child,
no matter the nature or frequency of the unspeakable crime.
After the Senators point out that the Constitution mentions capital
punishment more than once without stating any exemptions, they should
strongly insist the nominee answer this question:
"Will you enlighten the American public regarding the new "law of the
land” this case lays down by identifying and discussing specific
passages from the Constitution that support the majority ruling?”
We have...[required] a vote of two-thirds in one of the Houses for
removing a judge; a vote so impossible where any defense is made before
men of ordinary prejudices and passions, that our judges are effectually
independent of the nation.
Never one to argue a point without stating his reasons for holding it,
Jefferson often explained that lifetime-appointed federal judges are
"effectually independent of the nation” because partisan politics
renders impeachment a farce, scarecrow, and bugbear.
Having brought that idea before a national audience, the Senators
will set the stage for much more than a merely interesting exchange when
they ask nominees to discuss the real-world consequences that occur when
judges who, de facto, are absolutely secure in their position for life
decide to become "activists.”
So, too, will the Senators create an intellectually stimulating scene as
they earnestly seek reactions to the particular consequence Jefferson
had in mind when he wrote this:
It is a misnomer to call a government republican in which a branch of
the supreme power is independent of the nation.
At this point, the Senators may wish to lighten the hearing up just a
bit (but not for liberals, who will look as if they just finished
chugging a pint of vinegar) by asking whether or not the nominee
recognizes the eternal magnificence of the following quote, which makes
the case against any kind of judicial "activism” with three truths, two
stated in a formal style, the other with language that conjures up the
image of Justice Grampa Simpson announcing his concurrence in yet
another liberal activist opinion.
But we have made [federal judges] independent of the nation itself.
They are irremovable but by their own body for any depravities of
conduct, and even by their own body for the imbecilities of dotage.
Then, back it is to a fully serious tone as the Senators ask for
reactions to the following two passages, insisting that part of the
response must explain how an "activist” judiciary can ever be consistent
with the notion of the political supremacy of "We the people.”
It has long been my opinion, and I have never shrunk from its
expression,...that the germ of dissolution of our Federal Government is
in the constitution of the Federal Judiciary--an irresponsible body (for
impeachment is scarcely a scare-crow), working like gravity by night and
by day, gaining a little today and a little tomorrow, and advancing its
noiseless step like a thief over the field of jurisdiction until all
shall be usurped from the States and the government be consolidated into
one. To this I am opposed.
One single object...[will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation. And with no
body of men is this restraint more wanting than with the judges of what
is commonly called our [Federal] Government, but what I call our foreign
"Foreign department” — To give everyone time to fully digest the meaning
of that appropriate, bitterly ironic insult, the Senators might call for
(During this break some open-minded listeners will surely marvel at
Jefferson’s incredible prescience as they muse upon the insidious,
illogical doublespeak spewed by liberal judges who fiercely argue for
the good that flows from their being "informed” by foreign law even as
they proclaim they are not invoking the inarguably cherry-picked foreign
statue to decide the case at hand.)
When the hearing reconvenes, the Senators ought to continue in a
perfectly objective tone (leaving sarcasm to the mind of every American
beholder) as they ask this question:
"Do you believe it is possible to reconcile everything Thomas Jefferson
stood for with the idea that American democracy is best inoculated
against the insidious virus of despotism when justices of the Supreme
Court base their decisions upon "penumbras” they claim are formed by
"emanations” that radiate from the Constitution’s words as well as upon
personal interpretations of what constitutes "evolving standards of
decency that mark the progress of a maturing society”?
With questions such as that, the contemporary Senators, as well as those
who follow them, will define themselves as worthy of the title
But infinitely more important than that, they will deserve being
remembered as courageous, honest, and faithful defenders of their
nation’s highest ideal if, with the help of Thomas Jefferson and Plain
English, they regularly continue the discussion about "judicial
activism” with The people...[who are] the only safe guardians of
their own rights...the only sure reliance for the preservation of our