Good Riddance to Supreme Court's Souter

Conservatives are bidding a not-so-fond farewell to associate justice David Souter of the Supreme Court. And while his retirement will not radically tip the court one way or another – he is a liberal who will be replaced by another liberal – his tenure has been one of great disenchantment for right-leaning thinkers.


Souter was nominated in 1990 by president George HW Bush. Thought to be a conservative at the time, Souter quickly turned tail and voted in favor of abortion rights, for legal protections for Guantanamo detainees, and for the strict separation of church and state, among other issues.


Retiring now at 69, the lifelong bachelor was famous for his plain, hermit-like house in New Hampshire – a picture of which appeared all over the media at the time of his nomination – his simple, straightforward Yankee demeanor, and for rejecting the limelight and Washington social conventions. He was appointed to replace the very liberal William Brennan at the urging of two New Hampshire conservatives, US senator Warren Rudman and Bush 41 chief of staff John Sununu.


The former Rhodes scholar, Harvard law graduate and New Hampshire attorney general, however, ended up nothing like Rudman and Sununu thought. And now his retirement just after the election of Obama only serves to painfully reinforce that legacy, bringing to mind another disappointing Republican appointee, Sandra Day O’Connor, the first woman on the High Court who was appointed by Ronald Reagan in 1981.


Reagan was dismissive of conservatives who warned about O’Connor. But as her stay on the court lengthened, she too turned out to be seen as first a swing vote and then as too often liberal. When she chose to wait to retire until after the 2004 presidential election, it was an indicator that she was hoping that John Kerry would have won the presidency so that she would have been replaced with a liberal. And so she was finally exposed for being a Republicrat.


Thus conservatives long have felt burned over the Supreme Court, particularly after Senate Democrats’ mau-mau of conservative nominee Robert Bork in 1987; the “high-tech lynching” of conservative Clarence Thomas in 1991 on tense, nationally-televised hearings over charges of sexual harassment by Anita Hill; and with Souter and O’Connor. And so the right-wing mantra for the Bush 43 choices of Samuel Alito and John Roberts was “no more Souters”.


Conservative disappointment with Souter came early with Souter’s role in the 5-4 ruling in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld abortion rights. He then voted in 2000 and 2007 to strike down bans on “partial birth” abortion. In 2000, he voted in the 5-4 minority in the famous Bush v. Gore which stopped the ballot counting in Florida. Souter called it court intervention in a state matter.


In 2005, he wrote the 5-4 court opinion striking down the posting of The Ten Commandments in two Kentucky courthouses saying that the Constitution requires “the government to stay neutral on religious belief, which is reserved for the conscience of the individual.”


He also voted against government programs that would allow public money for school-choice programs that helped parents pay to send their children to religious schools. Souter also was a consistent vote against the death penalty.


Now Obama will fill the post, and he will appoint a liberal, pure and simple. Nobody with any serious questions hanging over their heads will be considered in contrast to the way that ‘trusting’ Republicans have routinely been mugged politically by hardball Democrats.


The Founders made the judiciary the weakest of the three government branches. Yet liberals have strengthened the judiciary by using the courts to attain goals not achievable at the ballot box, in essence putting it on the level of the legislative Congress. And Obama’s statement about the coming Supreme Court nomination is extremely disconcerting:


“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; 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,” Obama said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes,” said the president.


Yet it is not the role of the Supreme Court or any other judicial body to decide how a person can make a living, whether they may feel safe in their homes, or whether a judge has the “quality of empathy, of understanding and identifying with people’s hopes and struggles.” Courts are designed to interpret law from which the above ends may emerge. But Obama, like all Democrats, is putting the cart before the horse in order to use the judiciary as a legislative tool.


So Democrats say forget about the Constitution and vote with your heart. This is the way that emotion rules socialism and how our nation is consistently undermined by the Democrats. Because freedom is a rare gift that is based on rationality, not passion. Without level heads to interpret freedom and its laws, it is endangered by human feeling which can swing from one pole to the other.


Obama’s two leading candidates for the High Court appear to be Sonia Sotomayor, who is of Puerto Rican descent, and Elena Kagan.


Sotomayor actually is considered by some as a political centrist, and her name even was mentioned as a possible replacement for O’Connor in 2005. Earlier in her career, in 1991, Sotomayor was nominated by president George HW Bush for a seat on the US district court for the Southern District of New York. Today she is a federal judge on the US Court of Appeals for the Second Circuit, a post to which she was named in 1997 by Bill Clinton. She obtained her law degree from Yale in 1979, where she served as an editor at the Yale Law Journal.


Elena Kagan was dean of Harvard Law School from 2003 to 2009. Today she is US Solicitor General, which means that she represents the United States in court. She got her law degree at Harvard in 1986 where she served as a supervising editor of the Harvard Law Review. In 1991, president Clinton named her to the US Court of Appeals for the District Columbia Circuit.


If there are any serious questions about Sotomayor’s allegiance to the liberal cause, Obama will not nominate her. And having headed up Harvard Law, Kagan hardly seems like the kind of person who could empathize with the struggles of everyday people, even if that were a legitimate criterion. In fact being a member of an Ivy League elite that is far removed from the lives of Americans, Kagan is not qualified for the Court not on the basis of her lack of ability to empathize, but because of her lack of ability to understand how laws impact citizens in the first place. This ability is one key to understanding the freedoms that we have.


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