State Senator Mark Green Commentary: Why the Delay on Federal Judges?

by State Senator Mark Green (R-Clarksville)


Why are there still more than 30 federal judge nominees awaiting a floor vote by the U.S. Senate? These well-qualified nominees are broadly-supported and have all been approved by the Judiciary Committee. At a time when federal courts are desperately needing new judges to handle their caseload, these nominees are still stalled. Why? After reading Scalia Speaks, the collected speeches of the late Justice Antonin Scalia, I understand why.

In the not-to-distant past, judges were voted into the Judiciary in a bipartisan fashion. In fact, the vast majority of judges were approved with resounding majorities if they were not unanimous. The litmus test was minimal and usually revolved around the individual’s commitment to the original meaning of the Constitution. What did change the method of picking our judges has larger ramifications than the delay for these judges. It actually threatens the very existence of our democracy.

The problem began with the creation and permeation of the concept of a living Constitution. From our nation’s founding until the 1950s or so, the analysis of the Constitution was intended to be the original meaning of the words contained in the document. During the era of the Warren Court post-World War II, the Supreme Court took a bold step and began making decisions as if the Constitution could be interpreted differently in different cultural and social situations. The expression was that the document “evolves over time.” What results is the undoing of democracy.

Instead of being governed by a legislative branch that makes laws, the new “lawmakers” of the land become the whim of nine judges on the Supreme Court. They can easily create and restrict rights according what they believe the Constitution “ought to say” in today’s setting. There are numerous examples. So how does all of this relate back to these judges?

If the justices can undo a law passed by a state legislature or by Congress based on their biases, then the only real way to have any say so in the future of our country is to pick the judges based on what and how they will regard what “ought to be” in the Constitution. The fight for Supreme Court justices is now the greatest battle that occurs in Washington, DC. The litmus test is built for each side based on how the nominee will respond to a myriad of political and social issues, most never mentioned in the Constitution. The impact on democracy is so severe, people actually vote on many candidates for no other reason than who they will support for the bench. The Judiciary has overtaken the legislative branch, and democracy is now at best picking who the next justice will be.

Federal judges get the same scrutiny as they rule on cases that ultimately make it to the Supreme Court. Many times the Supreme Court decides to not hear cases–leaving the final word with the Circuit Courts, or sometimes even District Courts. Federal judges are an integral part of this massive problem. These judges sit in the middle of the fight for each side’s best efforts to ensure what they think the Constitution “ought to say,” is so interpreted.

So, will these judges be confirmed soon? Probably, hopefully. Regardless, the impact of the Living Interpretation of the U.S. Constitution has led us down a path of destroying the very separation of powers envisioned by our Founders, and disrupted the elected voice of the people. So ends democracy.

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​Dr. Mark Green represents Houston, Montgomery, and Stewart Counties in the State Senate.​




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4 Thoughts to “State Senator Mark Green Commentary: Why the Delay on Federal Judges?”

  1. Betty Lynn Duley

    Thank you Sen. Greene. We must see a return to the original intent of the Constitution. Separation of powers, checks and balances, etc. I’m convinced that we need an amendment to address term limits.


  3. Kevin

    JB, you and soon to be US Representative Green nailed it!

    Yeah, imagine if, in your scenario, the Financial Institution decides that because the theorectical value of the property had increased, that this is the new amount that you pay your motgage on. Just another in the endless number of schemes that some people try to enslave other people! And so many idiots just follow along blindly.

  4. John Bumpus

    For our friends on the Left, imagine the following:

    You have borrowed a large amount of money to buy your house. You have a mortgage (yeah, I know, in Tennessee it is usually a Deed of Trust—a slight variation—but never mind that) on your newly purchased house. You borrowed such and such amount of money for a long number of years at such and such rate of interest on the principal amount of the loan. And there are other terms and conditions as well—you have to keep the property insured, you have to pay your taxes into an escrow fund until the indebtedness is repaid, etc., etc., etc. But you agreed to all of this.

    Now let’s say that your neighbor begins to complain that your mortgage is ‘unfair’ according to his notions of justice. He takes your lender (not you, but your lender—you have almost no say in the matter) to Court. Your neighbor wants to change your mortgage. Your mortgage, he says, is a ‘living and breathing document’ which should be reinterpreted ‘in the light of modern circumstances,’ never mind that its various provisions are really quite specific. Your rate of interest should be ‘adjusted’ upwards, your neighbor says, because there are others who really could benefit from that extra money ‘redistributed’ from you to them if you are required to pay more.

    And your neighbor’s demands to the Court that your mortgage terms and conditions should be changed are not just limited to your rate of interest. Over time, your neighbor’s many complaints and demands begin to encompass almost everything about your mortgage.

    And very frequently, the Court agrees with your neighbor under new, ‘made up rules and procedures of Court’ (all very reasonable, of course) and your lender is ordered by the Court to make you pay more and more, and to do more and more, if you are to keep your house.

    Would our friend on the Left now say that this new state of affairs about his mortgage is ‘fair’ or not? And in my opinion, the foregoing metaphorical story (exaggerated for literary effect) is but an illustration of the problem that we all too often now see with constitutional reinterpretation.

    I thank Sen. Green for his very fine opinion article on this subject.