Everybody has a test. The test may be clear and principled or ambiguous and pragmatic, but every President has a standard by which he selects nominees for judicial office. For some, the test is simply, “what nominee will gain me the most political leverage?” For others, the test concerns specific judicial objectives. The Democrats, for example, are honest about their litmus test — they only nominate pro-abortion judges. I believe that tests are not only valid, they are inescapable.

The issue, therefore, is not whether there should be a test, but which test is the right test. I would like to suggest that while there may be many secondary issues which may rightly be considered as part of a litmus test, there are two foundational, non-optional tests which always must apply to the selection of judges in the United States of America. The first test involves biblical requirements for judges. The second test concerns the Constitutional requirement of an oath of office to uphold the Constitution.

In my view, these tests are not in conflict with each other because American Christians are faced with the happy circumstance in which the guidelines established for the selection of justices by our national charter (the Constitution and its preamble, the Declaration of Independence) are not in conflict with what the transcendent Law given by “the Supreme Judge of the world”^[1] declares concerning the duties and qualifications of judges. Thankfully, we are not faced with the choice of deciding between the revealed will of God, and the law of our nation when it comes to the selecting of justices.

It is important to note, however, that though the constitution indicates that denominational religious tests shall not be required, it does presuppose that office-holders will take oaths to God and enforce a document which acknowledges Him and is based largely on principles derived from His revealed law. The irony today is that Democrats and many Republicans have currently given us a constitution-denigrating religious test for Supreme Court nominees. It is this: “Men of faith who acknowledge the lawgiver need not apply.” This is a perversion of the Framer’s intent which was to prevent the Christian denominational tests found at the state level from applying to the selection of federal, God-acknowledging magistrates.

Test One: Publicly Fearing, Trusting, Serving,
and Acknowledging God as the Lawgiver

The first test comes from God’s revealed Word, the Holy Scripture. It is found throughout the Bible, but is beautifully summarized in Psalm 2 which declares:

Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the LORD with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. Blessed are all they that put their trust in him.
The test is this: Will the nominee publicly acknowledge and fear the God of Scripture as the lawgiver from whose revelation all valid laws of man are derived? It is important to note that Scripture, which communicates the transcendent law of God to all men at all times, reveals that all judges (regardless of their national background or preexisting law system) are bound to submit to the Lord Jesus Christ (the “Son”) and rule by his righteous commands. The First Commandment of the Ten Commandments is thus universally binding on men and nations. Judges are not only to acknowledge “the Son,” they are to have no other gods over the land than the God of Scripture.

While the Bible actually has much more to say about the proper selection of judges than the question of their acknowledgement of Him and submission to His lordship (including numerous character issues), the other requirements rest on this foundation. Apart from “kissing the Son,” no judge is truly qualified to serve, nor should a man who is defiant of the Son be nominated to the highest court in the land.

Test Two: The Oath of Office and the Acknowledgement of God

The second test pertains to the Constitutional requirement which demands that a Supreme Court Justice take an oath to uphold the Constitution.^[2]

The test, therefore, is this: Will the nominee uphold his oath of office taken before God to uphold the United States Constitution as written, based on the text itself as interpreted in light of the original intent of its authors.^[3] The oath is the foundation of legitimacy for a Supreme Court Justice. The ability to understand this oath and the absolute commitment to abide by it are non-optional prerequisites of qualification for serving as Supreme Court Justice. The commitment to the oath is what distinguishes faithful men from tyrants. The existence of this oath is what distinguishes us as a nation of laws, rather than of men. The oath presupposes that the Document is to be interpreted in terms of objective standards, not evolving mores.

Consequently, nominees who believe in evolving standards of interpretation, or evolving standards of truth, are inherently disqualified from serving because they do not understand the oath and will not abide by its terms. This disqualification would also apply to those who believe that the Constitution may be re-interpreted based on the laws of foreign nations. Legitimate debates may ensue about the objective meaning of the text as drafted by its framers, but those who reject the text, who change the meaning of the text to accommodate social change, or who interpret the text using standards foreign to our charter and system of government can no more rule wisely on the Constitution, than an Olympic tennis referee who is determined to judge the contestants in his sport by the rules of water polo.

Finally, those justices who will not acknowledge God as the “Supreme Judge of the World,” or who would inhibit the acknowledgement of God from public office, are inherently disqualified from serving as judicial nominees for the United States Supreme Court for two reasons: First, they cannot maintain a valid oath of office, being incapable of swearing “so help me God” without blaspheming the name of God. Second, such individuals cannot and will not enforce the very Constitution which formally derives its powers, not merely from the people, but from the God of the Declaration and the Constitution, who delegates to freemen the right to be self-governing under Him — a fact which was boldly proclaimed by the authors of our national charter.

America is bound by a charter which is distinctively (though not perfectly) Christian. The Founders established for our nation a charter which begins by acknowledging God as lawgiver, proceeds to reference Him and appeal to Him, incorporates the common law system twice by reference^[4] (a system built on the Ten Commandments and the case laws of Scripture), and ends by declaring Him Lord in the important subscription clause of the Constitution.^[5] Consequently, one cannot understand or interpret the Constitution apart from a one thousand-year English common law system rooted in the laws of Moses and built upon the foundations of Christianity^[6] which the Framers specifically adopted.

Simply put, those who would divorce the Lawgiver from the law are not merely disqualified from holding the highest judicial office in the land by Scripture, they are disqualified by virtue of the constitutional requirement that they uphold their oath to enforce the Constitution which presupposes this same Lawgiver.

Alberto Gonzales Fails the Test

At this time, our prayers must be with the President as he selects a nominee to fill the seat of Sandra Day O’Connor. (In addition, late breaking news reports indicate that the resignation of Chief Justice William Rehnquist is imminent, thus giving President Bush the responsibility of placing two justices on the Court.) One specific prayer which Christians can offer with confidence is that the President would only nominate biblically and constitutionally qualified men. An example of a man who is being floated as a potential Supreme Court nominee, but who is both biblically and constitutionally disqualified, is current Attorney General Alberto Gonzalez.

Mr. Gonzalez has an unfortunate record of facilitating abortion^[7] and endorsing the use of torture,^[8] but the fundamental problem with the Attorney General is that he believes that the Supreme Court is a law unto itself, trumping both the transcendent moral law of God and the Constitution. Consequently, his beliefs are in conflict with the constitutional requirements that Supreme Court justices preserve the Constitution.

Gonzales is on record that Roe v. Wade should be upheld and enforced,^[9] and that the Supreme Court, not the Constitution itself, is the Law of the Land. This last point was made crystal clear when he declared: “The constitution is whatever the Supreme Court says it is.”^[10] This statement, often repeated by nominees for judicial office, is a declaration of war on the document itself by reducing our laws to the opinions of whatever group of tyrants and legal social Darwinists are in office at any given point in time. To put it another way, under Gonzalez’s theory of constitutional jurisprudence, were the Supreme Court to mandate child slavery, to require the forced euthanizing of people age thirty or older, or to legitimize marriage between man and animals, such declarations would be legitimate, accurate, and binding reflections of the Constitution, because the Supreme Court declared them to be so by fiat.

Our Moment in History

It is time for Christians to once again assert objective and transcendent standards for the selection of our highest office holders. We are not at liberty to improvise on those standards when they do not fit our political objectives and short term vision for “success.” Our goal must be obedience. We must be God’s people in this nation, a holy remnant who insist that men and nations must acknowledge Him and no other God. Political pragmatism is fruitless. Dogmatic partisanship is destructive. In fact, more important than who is ultimately selected for this position on the Supreme Court, is how God’s people represented His interests before the magistrates of this land. Taking a principled stand may, in God’s providence, result in a temporary political loss, but refusing to take a principled stand will result in the long-term comprehensive loss of the blessing of God in our land and the joys of political freedom for our children. Our hope is in the Lord, a hope which we have no right to claim if we fear men more than Him.

For more, read the entire article, “The U.S. Supreme Court’s War on the Sovereignty of God.”

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^[1] The Declaration of Independence.

^[2] Article. VI. Clause 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

^[3] This would include the original signers and those who subsequently acted to amend the Document. The difficulty of this task does not nullify the duty to presuppose the integrity and coherence of the Document for purposes of interpretation and to be bound by the written text.

^[4] U.S. Constitution, Amendment VII: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

^[5] U.S. Constitution, Article VII: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names.”

^[6] “No doubt there are many causes for this superiority; but in my humble opinion, the most important is that, while the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian.” Fountain of Justice A Study in the Natural Law by John C.H. Wu Sheed and Ward New York 1955 Wu was a former Research Scholar at Harvard.

^[7] As an associate Justice on the Texas Supreme Court, Alberto Gonzales voted to overturn a Texas Parental Notification law in 2000, giving a seventeen-year-old girl the ability to murder her child. (“Al Gonzales and Jane Doe” by Terrence Jeffrey, Human Events, 2001)

^[8] In August 2002, as White House Counsel Alberto Gonzales helped prepare a memo from the Justice Department’s Office of Legal Counsel, “advising that torturing alleged al Qaeda terrorists in captivity abroad ‘may be justified’ and that international laws against torture ‘may be unconstitutional if applied to interrogations’ conducted in the U.S. war on terrorism. Gonzales held a news briefing to distance himself from the memo after it became public, calling it, in part, ‘irrelevant and unnecessary’ and ‘overbroad.’” (“Gonzales Named to Succeed Ashcroft as Attorney General” by Dan Eggen, The Washington Post, November 11, 2004)

^[9] As quoted in Human Events, posted July 6, 2005, an interview by Dr. Jack Willkie with Alberto Gonzales: “Q: Judge Gonzales, we’re hearing conflicting reports about your position on abortion. Can you tell us where you stand? A: As a judge, I have to make judgments in conformity with the laws of our nation. Q: Would you say that, regarding Roe vs. Wade, stare decisis would be governing here? [Note, stare decisis means that he would continue to uphold that decision because he would regard it as a binding precedent.] A: Yes.”

^[10] Ibid. “Q: Judge Gonzales, it’s well known that the Clinton administration had a very clear and consistent litmus test in regard to judicial nominations. If that person was not pro-abortion, they were not nominated. In light of this, do you ask your nominees what their position is on abortion? A: No, we do not. We judge them on a very broad basis of conservatism and constitutional construction. Q: Many of us feel that the Constitution does not speak to permissive abortion. Would you comment? A: The Constitution is what the Supreme Court says it is.”