John Hawkins: To begin with, the unprincipled way that your opponents tried to smear you and destroy your reputation — just because they weren’t honest enough to tell the truth and say that they had a problem with your being a conservative — was an absolute disgrace. Given that experience, what do you think we need to do to reform the system to make it fair for judges appointed by both Democrats and Republicans, while still allowing the Senate to perform its role of providing advice and consent?
Charles Pickering: John, that’s a good question. I make four suggestions.
Number One, as long as they are engaged in this unprecedented obstruction they should be held accountable at the ballot box and they were held accountable. Democrats lost two senators in 2002, four more in 2004, and President Bush was re-elected President carrying Ohio by only 125,000 votes. I think when the court in Massachusetts re-defined marriage and the Ninth Circuit held the Pledge of Allegiance unconstitutional a lot of voters connected the dots and so they did what they should have done. They held the folks that were responsible for this unprecedented obstruction accountable.
Secondly, if there is another filibuster of a judge, the constitutional option should be implemented.
And then, getting to a little bit more detail of what needs to be done, the third thing is Congress needs to pass a statute codifying the confirmation process or at least the Senate needs to adopt a rule that clearly delineates and defines how judges are to be confirmed. I think most Americans will be surprised to know that there absolutely is no detailed binding procedure for the confirmation of judges. Judges are confirmed on the basis of historical senatorial precedent or senatorial courtesy and each chairman of the judiciary committee since 1960 has interpreted those precedents and those courtesies somewhat differently giving rise for each side to accuse the other one of escalating the fight over the confirmation of judges.
Both sides, that is both Democrats and Republicans, need to have meaningful input into a solution that needs to be fair to both sides and it probably cannot take effect in this administration. It would have to take effect with the following administration and spell out that after a nominee has been received by the Senate, the nominee will have a hearing within a reasonable period of time and then an up or down vote before the full Senate within a reasonable period of time, (and nominees should be) confirmed by majority vote.
That way, Presidents regardless of party would know their nominee is going to be treated just like the nominee from the other party and nominees would know that after a reasonable period of time they could go on with their lives. So it’s a win-win situation for everyone involved in adopting a very clearly defined process for confirmation.
The fourth recommendation I would make is that we start the process of implementing and adopting a constitutional amendment that provides that in the future the only way the constitution can be changed is through the amendment process, Article V, as contemplated and set out by our Founding Fathers. The biggest cause of the battle over the confirmation of judges has been the transfer of the hot-button social issues from the election of state legislators, Congressmen, and Senators — from those elections to the confirmation of judges.
Those issues involve pornography, abortion in its most extreme form, partial birth abortion, abortion without parental consent or even parental notification, the definition of marriage, the references to God in the public square, at public buildings, institutions, ceremonies, and even in the Pledge of Allegiance and it involves pornography in its most extreme forms, that is, child pornography and hard core pornography.
These are the issues of the culture war that is raging in America and they have been transferred from the electoral political process to confirmation judicial process and that’s wrong. So, pass a constitutional amendment saying that in the future we’re not going to do it that way. We’re going to let the people, let the voters have a say.
John Hawkins: Well, let me ask a follow-up to that. Of course, I’m sure liberals will say, ‘Hey, Roe v. Wade, it’s in the Constitution. That’s not a constitutional amendment.’ How would you get around that, because I’m sure that’s what they would say?
Charles Pickering: Well, the amendment that I’m proposing, if opponents of Rove v. Wade felt like that this amendment was going to repeal Roe v. Wade, they would fight it teeth and tong — by the same token, conservatives who think Roe v. Wade was wrongly decided (would fight for it). Incidentally I don’t know of hardly any — most all constitutional scholars today, whether they’re liberal or conservative, acknowledge that Roe v. Wade was a stretch ‘ that it’s just really difficult to find that in the Constitution.
John Hawkins: That was just an example.
Charles Pickering: This would not affect that. That would still be decided under stare decisis, but in the future I would phrase the amendment so that the Constitution would be interpreted according to the literal language and according to whether there’s any ambiguity consistent with the ordinary meaning of the relevant provision at the time it was adopted.
I’ve seen some writings where some liberal scholars say that it’s difficult to determine what a term (meant) at the time that it was adopted, but that’s hokum. That’s really a bogus argument. Scholars do that all the time. Now there may be some disagreement, but if you’re intellectually honest there will be an agreement most of the time. Now that doesn’t mean there’s not some wiggle room. There’s always going to be some wiggle room but you wouldn’t be creating rights out of the thin air like the court is doing now.
John Hawkins: Well, you did say if you’re intellectually honest and I think that would be the big problem there, given what we’ve seen, you know’.
Charles Pickering: That’s right’.
John Hawkins: And even your own confirmation process ‘ I mean,you and I both know, everybody knows, the real problem with you is that you’re conservative, but they didn’t attack you that way. They attacked you on everything else. So, I would think those same people would say, ‘No, it says this, no matter what the plain meaning is,’ I think.
Charles Pickering: Now the politicians and the groups, absolutely, there’s no question in my mind that the extreme far left, secularist groups that fought me and the other Bush nominees ‘ they would twist words to mean what they wanted to — and some of their supporters in the Senate who were willing to go just as far as these groups were concerned, but I like to think the judges who have the responsibility of their being impartial are going to have some intellectual integrity. Now is this an absolute sure thing, they couldn’t get around it? No, nothing in life is, but I like the proposal that I make a lot better than I do hand wringing saying there’s nothing we can do about an activist court.
John Hawkins: Do you think the idea of a “living constitution” is a fundamentally undemocratic concept? If so, why do you think that?
Charles Pickering: Absolutely. Well, I think it is because of this: in our Constitution that was adopted and the people ratified it, that became a contract between the people and their government and we lived under that until 1971 which is almost 200 years. It was amended some 16 times, an average of once every 10 to 11 years. From 1933 to 1971 it was amended 7 times for an average of once every 5 to 6 years. Now, since 1971 far left groups, radical groups, learned it was easier to convince 5 members of the Supreme Court to change the Constitution than to convince the voters and their elected representatives to change it.
We have not had a constitutional amendment that has been initiated and adopted since 1971. That’s totally contrary to our past history and these were substantive amendments. They had to do with abolishing slavery, providing what states could not deprive its citizens of due process, it gave the right to vote to women, it gave the right to vote to 18 years olds. These were hot-button issues that we dealt with according to the amendment process.
It’s only been in the last 30 years that those who have a liberal philosophy say that the Constitution is too sacred to be amended and it is too difficult and too cumbersome to do so when it wasn’t too cumbersome for 170 years. They still don’t think it’s too sacred for judges to amend it or change it. But to me it’s the height of arrogance to say that we’ve got to have 5 super legislators sitting on the bench changing the Constitution. That’s not democratic. It turns the principle of, ‘We the people,’ upside down. It turns it on its head.
John Hawkins: A lot of conservatives have also been very upset by Supreme Court Justices citing foreign law in their opinions. What do you think of that practice?
Charles Pickering: Well, if they look back in history we fought the Revolutionary War so that we would be governed by our own law, not by foreign law. You know, England does not have a written constitution. Their law evolves; it’s called the common law. You know, we made the common law applicable up to our Constitution, but our Constitution trumps the common law.
Rome didn’t have a written constitution but the American people said we want to know what our Constitution means. We don’t want to have to depend on the whims of some judge as to what the law is or is not. So the Constitution ‘ the concept of a living Constitution in Supreme Chaos – I describe it as a Mystery Constitution because you don’t know what it means until five judges meet in secret and debate and argue what it means and then announce to you and tell you what it means.
So that really does away with the concept or the purpose of a written Constitution. A written Constitution is so that you know what your Constitution means. You don’t have to depend on judges telling you what it means.
John Hawkins: One thing that I think is troubling to some people is that Supreme Court justices, of course understandably at least to a certain extent, give a lot of deference to precedent ‘ but do you think they should give less deference to precedents since it takes a Constitutional Amendment to fix their mistakes otherwise?
Charles Pickering: Well, you’ve got to have deference to precedents. You can’t have an orderly rule of law without that. The problem is some of the precedents are completely contrary to the Constitution. Now judges can reverse precedent under the Doctrine of stare decisis if they’re convinced that their deviation from the Constitution was great and, of course, they weigh how settled the law is. I think Row v. Wade is a question that will still be uncertain for another ten years and if it’s not reversed in that ten years or so, then I think it will be viewed as probably established unless the voters were to adopt a Constitutional Amendment to the contrary.
You do get in a situation where after awhile even bad law becomes firmly established under the Doctrine of stare decisis. But again, one of the arguments about the living Constitution really started out ‘ the terminology that was used ‘ was whether or not we were a government of laws or a government of men. I believe very strongly we’re a government of laws and not of men and the concept of a living Constitution, which is one that changes over time. Now then you have judges who (claim) that we have the duty to exercise our independent judgment to determine the sense of decency of an evolving society — which simply means that the Constitution means what five judges say that it means — and that’s wrong in my opinion.
John Hawkins: Let me ask you a little bit more of a technical question. This is something that I guess for us non-legal experts would be helpful. You often hear the words, “originalist,” “textualists,” and, “strict constructionist,” used almost interchangably, although they don’t mean exactly the same thing. Could you explain the difference?
Charles Pickering: Well, textualism is taking the written words and someone sort of working as a wordsmith. They just go to the dictionary and they just say this is what the text means and you don’t give any intent or anything. You just take the textualism.
Now, original intent is trying to decide the intent of the people who adopted a particular provision, what they intended. That came under a good deal of criticism and then there developed an alternate which is very near the same, which is virtually synonymous, and that is to interpret a provision according to the common understanding. I like that much better than original intent because original intent means you’re looking back.
For instance, if you’re going to the original Constitution, you had all of the dozens of members of the Constitutional Convention itself and then you have all of the state legislators/legislatures that ratified it and by that time you’ve got several hundred people — and to determine the intent of each one of them is a little bit difficult to do.
That really meant, I think, when it developed that we’ll try to determine what the Founders, most of them — the consensus was, that’s what it meant and that’s what common understanding means. You go back and you don’t try to define the intent of one specific author or one specific legislator or delegate to the convention who voted that way — but you try to understand what most of the people at that era understood by that particular language and to me that’s a safer method of interpretation.
John Hawkins: The Kelo vs. New London decision, which allows local government to take land from private citizens and hand it over to developers, has been very controversial. Do you think the reasoning the Majority on the Supreme Court used on that one was sound? What do you think?
Charles Pickering: Well, you know, economic planners and community leaders would like to have that. There has been some tendency going in that direction since about the 1950′s, but it was always understood within the law and some of the early decisions said that you cannot take property of A and give property to B and I think that’s sound.
You know, if a private individual wants to buy property for economic development and they can negotiate, fine, but having the power of government to take, that’s extreme. Justice Sandra Day O’Connor tabbed it correctly when she said that under the Supreme Court decision in Kelo that no home was safe from being taken for a real estate development, no farm safe from being taken for a factory, and no Motel 8 safe from being taken and turned into a Ritz Carlton because it helped economic development.
In Supreme Chaos, I think the unique thing is that in one book I put all the aspects and ramifications of the confirmation process and how they converge and come together at one point in the confirmation battle and I put it in one book which discussed the fact that this is part of the culture war. The culture war is at the center of this battle.
I discuss that the collision between historical, religious traditions and secularism is at the very front of the culture war and who the players are, name the players, describe them in their own words. It discusses the development of the concept of a living Constitution, the role of the media in this, and it discusses the concept of the living Constitution and how it evolved over time and defines exactly what it is.
I also discuss its impact on the average citizens and that’s what I was getting around to. The Kelo case that you just discussed, I mentioned that under the concept of a living Constitution. You can lose your house under the Kelo case and if you live in Kentucky, there are two county courthouses that can’t display the Ten Commandments. If you live in Massachusetts you have marriage re-defined for you without the legislature having any input. If your children go to school on the West Coast in the Ninth Circuit, they can’t say the Pledge of Allegiance. So that’s the impact of a Mystery Constitution on the average American.
John Hawkins: Related to some things you just said there, another issue that causes a lot of controversy is the way that the First Amendment has been used to stifle religious freedom. The argument goes with people who disagree with the way the First Amendment is currently interpreted that the Establishment Clause essentially just prevents Congress from establishing a national religion. What are your thoughts on that?
Charles Pickering: Oh, that is a central front of the culture war. There are those who are determined and dedicated to move all references to God from the public arena, from the public square. Now I go into our historical religious traditions and show how it was important to the early Founding Fathers and how they spoke of God not only in church but they spoke at political occasions and the legislatures ‘ they had prayers when they convened the Constitutional Convention itself. They had prayers when they first convened Congress when the Supreme Court was organized.
There are those that are trying to re-write history and they’re not only trying to provide separation of church and state — which we should have, separation of church and state. America was never a theocracy and it never should be a theocracy ‘ but they’re trying to separate not only church and state, they’re trying to separate God and country. We were guaranteed freedom of religion, not freedom from religion.
When a group of church people put on a simulcast in Louisville, Kentucky for pushing the confirmation of judges, those on the left including a number of Senators just went ballistic that church people are going to be involved in politics. Well, come on. The same Constitution that gives ACLU the right to freedom of speech gives Christians the same right to freedom of speech, gives them the right to petition their government, the right to assemble. Christians have just as much constitutional right to be involved in government and politics as any other citizen and it’s wrong. They’re trying to stifle debate. It’s the only time in America that I know of that a group of people have said we want to hear just one side of the debate, we want Christians to hush up, we want to hear secularists. Well, that’s not American, that’s not fair, and it’s not appropriate.
John Hawkins: Here’s Scalia on the Supreme Court ruling on the McCain-Feingold campaign finance reform and he was in the minority on that one:
“This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, …tobacco advertising, …dissemination of illegally = intercepted communications, …and sexually explicit programming, …, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.”
Do you agree or disagree?
Charles Pickering: Oh, absolutely. It’ a lot easier to get pornography, hard-core pornography on a college campus than it is reference to God. There is at the same time that the secularists are trying to win more freedom of speech for profanity and for lyrics and pop music that is derogatory of women and derogatory of policemen, at the same time they’re trying to correspondingly cut back on the ability of Christians to have a voice in the public arena and that’s flat dead wrong — but again it shows the intensity of the feelings that these secularists have and the extent to which they will go to try to silence Christians.
In Supreme Chaos I describe the attack on my faith and the attack on the faith of William Pryor and that of J. Leon Holmes, three of the Bush nominees. Now that is not to say that committed Christians are not confirmed, they were, but if these secularists felt like your Christian views were likely to influence your attitude toward abortion and pornography and they felt like you were vulnerable, they tried to filibuster you.
John Hawkins: Now let me ask you this; I want to make sure. Scalia was talking specifically about McCain-Feingold. Would you also agree that McCain-Feingold is unconstitutional or should have been ruled unconstitutional abridgement of free speech?
Charles Pickering: Well, that was the’
John Hawkins: Basically it restricted some people from being able to do advertisements within 60 days of an election. So basically if you don’t like a candidate, you’re not allowed to say so via an advertisement, for example, 60 days before the election’s over.
Charles Pickering: Well, there have been some feelings and what he was talking about ‘ and I have not seen the briefs on that ‘ but absolutely I don’t think that you can just have a blanket prohibition against advertising or participating. Now, I notice that out in Washington state recently that Washington appellate court held that there was a constitutional right to lie in a political campaign. I’m not an advocate of free speech to that degree.
I think that there can be some reasonable limitations on it and I think one of the real difficult things that has been fostered upon the American people is advertising by the American Bar Association by lawyers. I don’t think this improves the quality of legal service one whit and I think it has made us a much more litigious society. There were some areas that historically you were viewed that you could have some reasonable restraints on speech and I would go back to those.
But, that’s a very difficult area that really for a judge to say I would come down this way or that way. You need to see the briefs and you need to see what all the precedents are.
John Hawkins: A lot of conservatives worry that if DOMA were to be challenged in the Supreme Court, it would be ruled unconstitutional because of the full faith and credit clause of the Constitution. Do you think that’s a legitimate worry?
Charles Pickering: Now, explain just a little more of what you mean.
John Hawkins: DOMA, the Act passed in ’96 by Clinton that prevents, for example, like Massachusetts, since they have gay marriage there — DOMA says that, OK, you have gay marriage in Massachusetts, but that doesn’t carry over to any other states. So, for example, just because it’s legal in Massachusetts doesn’t mean that North Carolina has to make gay marriage legal.
Charles Pickering: Yes, there has been that effort in Congress that was passed overwhelmingly and Bill Clinton signed that. Now there also has been an attempt to pass a constitutional amendment which would do the same thing. If we passed a constitutional amendment I think that DOMA would be held constitutional.
Right now, as you know, Massachusetts’ Supreme Court did re-define marriage and say that marriage is not limited to a contract between people of the opposite sex, but also people of the same sex could contract marriage as well. Now more recently a Vermont couple came into Massachusetts and they have attacked the Massachusetts statute that prohibits people from marrying in Massachusetts that could not legally marry in their home state.
The Massachusetts Supreme Court, same judges that declared the one man, one woman marriage as unconstitutional, that it had to be opened up to people of the same sex — those same judges are looking now to see whether or not they are going to throw out the Massachusetts statute that prohibits out of state couples from coming in to marry — and if they do, then you will have the storm that has been threatened.
You’ll have a case going to the Supreme Court under the full faith and credit provision of the Constitution as to whether or not a state other than Massachusetts would have to recognize those same sex marriages. So it’s going to bring the issue right back before the American public and in short order. And, you know, I think it’s anybody’s guess as to what the Supreme Court would do under that situation because the full faith and credit language is pretty explicit. This would be a novel question, a question of first impression, and I think that whatever has happened in the past is not necessarily an indication of what will happen in that ruling. I think it can go either way.
John Hawkins: A related question: what do you say to the argument that gay marriage should be allowed because of the equal-protection clause in the Constitution?
Charles Pickering: Well, that was basically the argument that was made in Massachusetts. The Massachusetts Supreme Court held that there was no rational basis for not allowing same sex marriage, that they were being discriminated against because it was one of the cornerstone foundational institutions of our society and that these people were being deprived of being part of it.
Of course, that certainly was not the traditional understanding of marriage from the time the first settlers came to Jamestown and Plymouth Rock until today. So they reversed some 360 more years of history and tradition and they re-defined marriage without the legislature having anything to say about it.
Now under the equal protection ‘ I’ve never understood the equal protection clause to provide that kind of protection. Of course, that’s what the far left liberal groups today are saying, that you can’t have any distinctions. Well, there always have been, you know, if you live in one part of the country. I mean, you can’t live in Mississippi and expect to do the same thing that you do if you live in New York and vice-versa.
The same thing — there are some differences between men and women and there are those who are trying to, you know, turn historical precedents around. So that’s an argument that’s going to be made. That’s why some people feel like we’ve got to pass a (Federal Marriage Amendment).
John Hawkins: Do you read any blogs? If so, which ones?
Charles Pickering: You know, I did not come of age during the gadget era and I have started using the computer, but that is not an era that I’ve gone into. I’m 68 and I’m sort of learning new tricks as it is, but I haven’t gotten into that.
John Hawkins: Tell us a little bit about your new book. We’ve discussed it quite a bit — “Supreme Chaos: The Politics of Judicial Confirmation and the Culture War.“
Charles Pickering: I think the unique thing about Supreme Chaos is that it brings into one book every aspect and ramification of the battle over the confirmation of judges. It has to do with the culture war and it has to do with the conflict between religion and secularism — and it has to do with the media playing its role — and these far left groups who’ve named the Bush nominees as out of the mainstream when they’re the ones that are out. For instance, the people at American Way that led the fight ‘ they support flag burning as free speech, they support the Virgin Mary splattered with elephant dung as art, and theater with Christ and his disciples portrayed as homosexuals, they support pornography, hard-core pornography, child pornography, coming into the library where children are, and they have the audacity to say that the Bush nominees are extremists.
These (people) are far, far out of the mainstream of American thought and they made the worst tactical mistake that I’ve seen in politics in a long time when they attacked all the appellate nominees getting ready for a Supreme Court nominee. They wasted their energy and their influence and their impact — and they fought us so hard that when it came time to block the Supreme Court nominees — they were completely powerless and impotent and couldn’t do anything about it. So because they fought us, they were not able to do anything to halt Judge Alito or Judge Roberts. The Democrats who were led into the unprecedented filibusters paid a tremendous price at the ballot box whenever they lost two senators in 2002 and four more in 2004 — and they will continue to lose seats as long as they are dominated by these extreme narrow radical leftists.
John Hawkins: Last but not least, is there anything else you’d like to say or promote before we finish?
Charles Pickering: Well, I hope people will find Supreme Chaos to be an accurate representation of what is going on, to find it informative, and hopefully will find it an interesting read.
John Hawkins: Mr. Pickering, that was fantastic. Thank you very much.
Charles Pickering: Thank you.
Full disclosure: A one-week Blogad for Charle’s Pickering’s Supreme Chaos: The Politics of Judicial Confirmation and the Culture War. ran on RWN.