This summer, the United States Senate will make one of the most solemn determinations within our constitutional system – whether to confirm a president’s nominee to a lifetime of service on the United States Supreme Court.
When considering a nominee for the vacancy created by Justice John Paul Stevens’ retirement, the Senate must determine whether the nominee will demonstrate an unfailing fidelity to the text of the Constitution and proper restraint against the temptation to expand judicial power. United States Supreme Court vacancies are not to be filled with symbols of ideology; they are to be filled with people who demonstrate a true adherence to the rule of law.
A nominee should present a robust body of work. The president and the Senate must evaluate how the nominee would approach the role of judging—how the nominee will make determinations about the meaning of federal law and the Constitution. Whether the nominee will simply apply the law as written and adhere to the Constitution’s limits on the role of the federal government in citizens’ lives.
It is equally important for the nominee to understand the Court’s role in stopping unconstitutional intrusions by the elected branches of the federal government. In Federalist No. 78, Alexander Hamilton wrote, the Courts serve as “…the bulwarks of a limited Constitution against legislative encroachments.” Congress’ tendency to expand government power is as real today as it was in Hamilton’s time. Healthcare mandates, exponential increases in the federal debt, and the recent spate of government bailouts all reflect that, left unchecked, government will expand into every nook and cranny of our commerce and our lives.
As a coequal branch of government, the Court must pull back on the reins of Congress and the president when they act beyond their Constitutional authority. The Court’s abilities in this area will be tested in the near future. Several states’ attorneys general have asked the courts to determine whether the Constitution permits Congress to force Americans to purchase health insurance and force states to take on the unfunded mandate of a Medicaid expansion—a question that will ultimately be resolved by the High Court. Therefore, it is critical for the President’s nominee to show an understanding of the Court’s role as a defender of our Constitution’s clear limits on the power of the federal government.
Adding to the Senate’s considerations, and complicating them are President Obama’s expressed views on the role of judges to feel empathy.
The “empathy standard” has no place in our courts. Lady Justice should never tip the scales of justice toward one party because of a personal or policy preference. Doing so would transform our courts into unelected and politically unaccountable legislatures. That path is dangerous and is contrary to the fundamental structure of our federal government.
The role of a judge is to apply the law as written, without bias toward any party or interest group.
I look forward to meeting with the President’s nominee, conducting a thorough evaluation of their record, and examining the nominee’s responses before the Judiciary Committee. I take seriously my constitutional responsibility to advise and consent on this nomination and I will only support a nominee whose record and testimony demonstrate a deep commitment to the unbiased application of the law and an unwavering fidelity to the Constitution.
George LeMieux is a United States Senator for Florida and one of six sitting senators to have argued a case before the U.S. Supreme Court.
The views expressed by guest bloggers on the Foundry do not necessarily reflect the views of the Heritage Foundation.