I heart the Constitution

STIPIMM: “Time is On My Side,” by the Rolling Stones

From the Congressional Record, August 18, 2024:

CHAIRMAN: Well, it seems we’re now ready. Mr. McKenzie, it is customary at this time that you be sworn in. So. Could you please rise and raise your right hand. Watch out for those flashbulbs.

(laughter)

CHAIRMAN: Do you solemnly swear that the testimony you will give before this Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?

MCKENZIE: Ain’t no thing.

CHAIRMAN: Thank you. You may be seated. After our long-winded speeches, Mr. McKenzie, the floor is now yours.

MCKENZIE: Thank you Mr. Chairman. Senator Jolie, thank you for that kind introduction. I also want to thank the wife of the late Justice Alito for being here today. He has truly left big shoes to fill.

I would like to once again extend my heartfelt appreciation to President Obama for putting his faith in me with his nomination. It was a surprise in so many respects, and not only to me and my wife, Bridget, but to many people in the country. There has been much speculation over my credentials and my judicial philosophy, and today I seek to answer those questions once and for all.

Supreme Court confirmation proceedings have been tinged with politics since the beginning of the Republic. It is what the founders intended in the separation of powers and, even if it has become more heated in the past several decades, it is not necessarily unhealthy for our country.

As I look around the room today and listen to the statements of the senators, I am convinced that that tradition is alive and well.

(laughter)

One could probably predict the line of questioning from each of you based upon the philosophical and political statements you have all made today. And there are many who have looked on my record, which consists almost solely of my 18 feature films, several of which starred the good senator from California, for some clue as to my outlook on the judicial branch and how it should work in our Constitution.

Senators, you’re in for a surprise.

Ideologically, yes, I am a liberal. I believe that Americans should expect their government, THEIR government, to not only “establish justice,” “provide for the common defense” and “ensure domestic tranquility,” but also to actively “promote the general welfare.” I believe government is a good thing so long as it represents the interests and desires of its people. The answer to bad government is not an end to government, but a change in it.

In short, I believe in the Constitution, what it stands for, and the ideals its sets out for our country. I also believe in its amendments, most notably the Bill of Rights, and the restrictions it places upon our government.

I also firmly believe in the clear divisions that the Constitution puts upon the three branches of government. The legislature legislates, the executive branch executes, and the judicial branch judges and interprets. Simple. Or at least it should be. In our Constitution’s 235-year history, the divisions of the branches have become blurred or in some cases erased altogether.

I believe that the Congress is the only entity with the power to declare war. Why? Because the Constitution clearly states that. Any law where the Congress cedes its power to some other entity is unconstitutional, and any war or act of war declared without the consent of Congress is unconstitutional as well.

I believe that the Congress is the only body with the authority to enact law. Why? Because the Constitution says it in black and yellow. Neither the executive nor the judicial branches should exercise that authority, and any such effort should be deemed unconstitutional.

I do not believe in giving deference to the executive in the application of punishment or torture, just because of the event of war. Why? Because the Constitution clearly states that “cruel and unusual punishment [shall not be] inflicted” and lays out NO exceptions. Justice Jackson famously said that the Constitution is not a “suicide pact.” Indeed, but neither should it be a flimsy document subject to the whims of the time.

Yes, senators, I am what we call a “strict constructionist.” Probably even more so than the late justices Scalia and Alito. And yet I am a liberal. How is this so?

My answer is simple: one’s personal ideology has NOTHING to do with one’s judicial philosophy. I believe in the ability of government to improve the lives of all Americans, but I do not believe that it is the judicial branch’s place, responsibility or duty to make that happen. Why? Because the Constitution says so.

It is not the Supreme Court’s place to decide whether it is moral or whether it is proper that a certain law be or not be in effect. It is not its job to measure the prevailing views of society in judging the constitutionality or legality of certain actions. And perhaps most importantly, it is not its job to bring the country’s laws up to a certain moral standard. The country already has an institution for that. It’s called the Congress. It is not the task of the Court to insert new interpretations or readings into the Constitution, altering its purpose or intent. We have a mechanism for that already, and it’s called amending.

Over the past 100 years, the Supreme Court has slowly bled away legislative authority from the Congress, in effect becoming a judicial plutocracy, perhaps limited in its scope, but not limited in its impact, and effectively answerable to no one. And while the decisions of the courts have led to progressive advancements in our country that I support, I cannot support the mechanism by which they came about. A benevolent tyrant is still a tyrant.

In essence, the strengthening of the court has allowed a certain political laziness in legislatures across the country. Instead of making the bold, responsible decisions, timid legislatures let the courts hand down rulings that were right on principle, but bad on law.

What happens when the courts refrain from exercising this power and strictly interpret the Constitution? Real change. Roe v. Wade is the textbook example. For years, its faulty premise of a Constitutional “right to privacy” was a finger in the dike preventing real debate about conception and the rights of women. When the decision was overturned by Holstead v. Planned Parenthood in 2009, suddenly the dike broke, and legislatures could no longer hide behind the judicial branch. As abortion laws went back on the books, women and liberal groups suddenly blossomed into real agents of change, effectively owning the 2010, 2012, 2014 and 2016 elections in almost every state. By 2015, 46 of 52 states had laws protecting abortion rights, and then, in the true exercise of constitutional democracy, both the Equal Rights Amendment and the Privacy Rights Amendment were passed by the states in 2017. With a true “right to privacy” in the Constitution, the Supreme Court was within its bounds this time when it declared, in Doe v. Alabama, that bans on early-term abortion violated that right. That’s what judicial responsibility can bring, senators. Not band-aid changes, real change.

Now, I know that Doe v. Alabama was an exceptional case, and sometimes when the Court has reversed itself, legislatures have remained politically afraid to go against fringe voter blocs. But I believe that’s one of the prices of our freedom – the fact that we have to live with our own choices.

But as the men and women who are exercising their constitutional authority to advise and consent on judicial appointments, let me make one thing clear: I am a radical constructionist. I will not hesitate to overturn decades of legal precedent if I feel it was not created to legislate, not to interpret. A couple of years ago, a commentator expressed a fear that strict constructionists would go so far as to overturn Brown v. Board and other critical civil rights decisions. I can say with certainty that I would not, simply because, unlike other decisions, Brown v. Board had an interpretive basis in the 14th Amendment. It is true that (in the specifics of that case) I may not have ruled “separate but equal” laws to be unconstitutional, but that is not the fault of the judge, it is the fault of the Constitution. Again, I reiterate, it is not the job of the judge to decide what should be. I would have voted to overturn Griswold v. Connecticut. I would have voted to overturn Roe v. Wade. I would have voted to overturn Lawrence v. Texas -- all these decisions that championed liberal causes. Not because of my ideology, but because of my judicial philosophy. Would that provide a setback for the progressive movement? Perhaps. But I would consider it to be one step back, two steps forward. For every time judges force the legislatures to tackle the tough problems of the day, that makes our democracy that much stronger.

I may be too radical for this country. I may not be what this country wants right now in terms of its judicial leaders. That’s quite fair. But I would argue, particularly to you, the men and women who make the laws, that if that is what you want from your judicial branch, then that is what you should codify in your laws and in your Constitution. You should stop hiding behind the judicial branch to make the tough choices for you. And I guarantee that, if you confirm me as a justice, I won't let you. Thank you very much.