Regnat Populus

The people rule.

Republicans Should Lay Down And Accept An Activist SCOTUS… Or Something.

Posted by Max Barron on May 6, 2009

Equal Justice Under Law

Equal Justice Under Law

CNN’s Senior Political Analyst, Gloria Borger, seems to have decided that Republicans don’t stand a chance against the Obama appointment machine… So they should just bend over and accept their fate – failure. She may have a point, Republicans don’t have enough votes by themselves to kill Obama’s appointments. They do, however, have a voice and can use that to dissuade certain appointments and/or convince Democrats to help block them.

Of course, Borger fails to understand the finer points of principle, justice and consequences. She also falls into the same category as other statist idiots who promote the ideological litmus testing of judges. Failing to realize that justice should be blind… not empathetic.

After all, hardly anything is more defining than a Supreme Court appointment: it’s about qualifications, judicial temperaments and resumes — not to mention beliefs. It’s what presidential elections are all about, after all. A president’s legacy is often largely defined by those whom he appoints to the court.

The key words are “beliefs” and “legacy.” First and foremost the system of justice, in order to be just, must not rule based on “beliefs,” but instead rule on the letter of the law. The notion that Supreme Court, or any other court for that matter, Justices should use their personal beliefs in their rulings promotes judicial activism. Which defeats the purpose of our entire form of government. Judges uphold the laws… they don’t write or rewrite them.
Secondly, the appointment to the Supreme Court is for life. Meaning that long after Obama leaves office, his appointments will still be on the bench. This is where the legacy comes from. The trouble is that an activist judge that rules according to their “empathy” (the word used by Obama) unhinges the legal system. Instead of justice being blind, and judges upholding the laws, the judges now write the laws and favor parties for whom they have empathy. Essentially it creates a miscarriage of justice. 
Borger goes on to question Republican and Conservative interest groups for laying groundwork to oppose certain possible nominees. Borger believes it to be a loosing battle that should not even be fought.

In a memo distributed by the conservative Judicial Confirmation Network, the White House is taken to task for vetting at warp speed, which apparently results in appointments “to high government posts nominees who have cheated on their taxes and have other ethical problems.”

Moreover, the memo continues, “any rush to appoint a Supreme Court Justice with lightning speed is all the more unseemly.”

Really? Gee, how is it then that nine of the past 13 Supreme Court nominees were named within six days of the announced vacancy? Or that President George H.W. Bush took only three days to announce David Souter as his replacement for Justice William Brennan? Or just four days to announce Clarence Thomas as Thurgood Marshall’s replacement on the bench? When Thomas was announced, conservatives were enraptured, not offended by the process which they now say “violates the Obama promises of transparency and accountability.”

Brush aside the condescending sarcasm and what is left is the typical “but ___ did it, too.” That doesn’t make it right. Not to mention that the Judicial Confirmation Network has several very valid points. Virtually every other nomination to come from our illustrious president has been riddled with tax problems, ethics violations and conflicts of interest. Whereas the previous administrations to make quick judicial appointments showed far better judgement in their cabinet and high level executive appointments. Obama is withholding the names of his possible nominations to prevent public vetting which DOES “violate the Obama promises of transparency and accountability.”  His previous nominations and appointments also make it clear that he needs the people to do the vetting for him – as Team O is just plain bad at it.
There is, of course, one last issue with Obama’s previous appointments. Competence. All other problems aside, virtually every appointment thus far has completely lacked anything remotely resembling competence.

Every nominee has a paper trail which deserves to be examined. Each one has a judicial philosophy which deserves to be questioned. Each has a certain level of competency, which needs to be probed.

Precisely. In order to probe, the people must know WHO to probe. Which goes back to that whole transparency thing. The Republicans and interest groups are rightfully organizing their forces to combat certain nominations. Naturally, drive-by’s like Borger think it ill advised to do so.

Here’s the problem: It’s likely conservative groups are going to lose. So if President Obama appoints someone in, say, the mold of Justice Stephen Breyer, do they still lay themselves down across the railroad tracks of an incoming train — especially when the ideological balance of the court isn’t at stake?

Borger clearly misses the mark… and the point entirely. It isn’t a simple matter of ideological balance. It is a matter of justice and law. By placing activists on the SCOTUS, Obama ensures a legacy for himself – social justice (Obama’s words) – and thereby a complete lack of justice for Americans. If the courts sway by empathy then the U.S. can no longer be a society ruled by law. Instead it is a society ruled by judicial prejudice. Obama has stated numerous times that he wishes to create a court vastly more activist and legislative than the infamous Warren court. This would be devastating to the rule of law and to Americans.
Of course, Borger seems to think that Republicans and Conservatives should just lie down and allow the American people and the Constitution to take the Imperial butt-humping. I, for one, have an exit only policy…

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2 Responses to “Republicans Should Lay Down And Accept An Activist SCOTUS… Or Something.”

  1. reddotinaredstate said

    Good article. You touch on, but do not fully develop the point that Justices, ruling by belief, empathy, popular polls, whatever, constitute tyranny. The Law becomes whatever five robed people says it is. If there is no framework for just decisions, then we are no better off then Iraq under Saddam.

    • Max Barron said

      Very well stated, sir!
      I presumed that the reader would understand the implied tyranny. Of course, had I your concise words at the time of writing… I may not have needed to leave it merely implied.

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