Why Obama’s Supreme Court Selection Will Be A Disgrace To The Constitution

Does the Constitution mean anything specific, or is it just a “living, breathing” document that means whatever the reader wants it to mean?

And what does it mean if the Constitution is essentially meaningless?  What does it mean if the rule of leftwing “empathy” trumps the rule of law?

Depending on your answer to the first question, and what you think about the second, you are either about to be very angry, or very happy.

Justice David Souter just announced his resignation from the Supreme Court, and Barack Obama had this to say:

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Back in November, when asked what kind of Supreme Court Justice he wanted, Obama said:

I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.

. . . [S]ometimes we’re only looking at academics or people who’ve been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court.

Obama has said:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Is that what being a Supreme Court Justice should mean?  Taking the little guy’s side against the big guy?  Taking the outsider’s side, such that we use the power of law to bring the outsiders inside?  Having “empathy” toward liberal voting blocs?  Why should it even matter if the law is on the rich and powerful guy’s side?

Kelly Long, of the Judicial Confirmation Network, said in response to Obama’s statement today:

“What he means is, he wants empathy for one side, and what’s wrong with that is it is being partial rather than impartial.

And she’s right: I didn’t hear Obama mentioning the need to have any empathy toward any traditional or conservative people or groups.  As an example of this highly partial and politicized and partisan “empathy,” a hate crimes bill just passed the House that could target pastors who argue that homosexuality is a sin.  Where’s the “empathy” for them?

Empathy is recast as a political weapon of the left.  And when a judge makes rulings on such feelings, his “empathy” for one group translates into naked contempt for another group.

Contrast Obama’s view with the view of Chief Justice John Roberts:

“I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, ‘Are you going to be on the side of the little guy?’ And you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then, the big guy is going to win, because my obligation is to the Constitution.  That’s the oath.”

In other words, Roberts 100% disagrees with Obama: being a Supreme Court Justice is not at all about having “empathy” or taking the little guy’s side; it is about following the Constitution and ruling in accordance to what the founders who wrote it intended.  Something has to ground our laws.  And the purely subjective opinions of nine unelected lawyers should not be what anchors this nation.

We find out something: as much as liberals want to argue that Bush trounced the Constitution, it is THEY who frankly could care less about the Constitution.

Rasmussen found out that:

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

Only 29% of Obama supporters agree that justices should rule on what is in the Constitution.  That is absolutely terrifying.

It is conservatives who care about the Constitution.  Liberals only care about what they want, and whatever ends justify whatever means.  And if the Constitution doesn’t support what they want, so much the worse for the Constitution.

That’s why liberal judges can mysteriously find penumbras and emanations supporting the “Constitutional” right to abortion, and simultaneously deny the clear and obvious meaning of the 2nd Amendment’s right of the people to keep and bear arms.

Justice Thurgood Marshall, who is the prototype of the liberal justice, said, “You do what you think is right and let the law catch up” (see Deborah L. Rhode, “A Tribute to Justice Thurgood Marshall: Letting the Law Catch Up,” in the 44 Stanford Law Review 1259 (1992).

The problem with this view is that one can literally do whatever one wants as a Justice without any guide but one’s own desires or convictions.  And yet that is the essence of Obama’s philosophy.  All kinds of horrors have resulted from this approach.

In the Dred Scott v. Sanford decision, likely the worst decision ever, the Supreme Court ignored the overwhelmingly clear mandate of the Constitution in favor of a desired outcome. In writing his dissent to this despicable example of judicial tyranny, Justice Benjamin R. Curtis wrote, “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean” (Dred Scott 60 U.S. 621 (Curtis, J., dissenting)).

Similarly, in the 1944 Korematsu v. United States decision, the activist Supreme Court upheld the executive orders of FDR requiring forced internment of some 110,000 American citizens of Japanese descent in clear violation of the plain sense of the 5th Amendments prohibitions against deprivation of life liberty, or property without due process.

Activist judges have repeatedly throughout history justified slavery, segregation, and racism, abandoning the plain sense of the Constitution in order to impose their views upon the text.  Let’s not forget that it was Democrats who fought to impose slavery, and it was judicial activists who bound the country up with laws that took the bloodiest war in American history to overcome.

What did Thomas Jefferson say about the threat of Supreme Court Justices imposing their own will upon the Constitution and imposing laws on the nation based on nothing but their own wills?

“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
—Thomas Jefferson to Edward Livingston, 1825. ME 16:114

“The Constitution . . . meant that its coordinate branches should be checks on each other.  But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.  Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

I don’t hear Jefferson praising “empathy” as the defining quality of of our Supreme Court Justices.  In fact, I hear him turning in his grave over the abomination that Barack Obama’s philosophy is inflicting upon the nation.

Not that Obama cares one bit about what Jefferson realized about the stupidity and folly of judicial activism two centuries ago.  That would be honoring the original intent of our incredibly wise founding fathers, and liberals like  Obama won’t have any of that.

Antonin Scalia and Nadine Strossen debated over the strict constructivist approach, which honors the founding fathers’ view of the Constitution; versus the “living document” approach, which enables justices to impose their will on the Constitution.  A partial transcript of their debate is available.

Toward the end of the transcript, Scalia said this:

Someday, Nadine, you’re going to get a very conservative Supreme Court… And you’re going to regret what you’ve done.

Imagine if “rightwing” justices bought into the “living document” view of liberals, abandoned their historical interpretation of the Constitution, and began to start seeking “penumbras and emanations” justifying whatever laws they wanted to impose upon society.  Liberals, just imagine for a moment what they would do to society by basing their decisions not upon the Constitution and the law but upon whatever they felt like doing based upon their ideology.

Liberal activist judges love to turn to foreign law to “inform” their rulings.  So let’s see a hardcore rightwing justice start referring to sharia to “inform” his rulings against women and homosexuals.  Let’s see how the left feels if the right uses their own “legal reasoning” against them to impose a rabid moral view in the name of and with the force of law.  One thing is sure: no matter how far such a rightwing judge might go, it is yet unlikely he would go as far as the left did against babies.

The farther Obama pushes the envelope toward liberal judicial activism, the greater the ultimate backlash will be when the worm turns.  And if the economy tanks or we are hit by terrorists, the worm WILL turn to the right.

We don’t know who Obama will appoint to fill the Souter vacancy, but the one thing we DO know is that his pick will be a disgrace to the Constitution.

Tags: Constitution, David Souter, Dred Scott, empathy, fairness, FDR, hate crimes bill, hopes and struggles, internment, Japanese, John Roberts, law, minorities, Obama, resignation, Scalia, Supreme Court, Thomas Jefferson, Thurgood Marshall, vulernable