ABC News Supreme Court correspondent Jan Crawford Greenburg scopes top contoneders to replace David Souter. An NRO Bench Memo offers advice to the GOP: As Obama will get his choice confirmed, do not stall, but do pin the nominee down on the nominee's judicial record and philosophy. Fair enough. Elections do indeed have consequences. Let us not have a "Borking." Jeffrey Lord, former aide to Jack Kemp, says the GOP should fight openly & cleanly, like his former boss always did, and make sure a liberal nominee does not get anything like the 96 votes Ruth Bader Ginsburg got, or the 87 votes given Stephen Breyer. Karl Rove sees the nominee's confirmation hearing as a chance to make the case for judicial restraint. (Arlen Specter's vote cannot be counted upon, given that the Democrats shafted Specter last week, giving him junior rank on all but one committee; Specter's recent comments that he would support GOP Senator Norm Coleman over challenger Al Franken in the disputed Minnesota Senate race angered his new chums.)
But let the GOP recognize to permanent changes that liberal activism has brought upon the Supreme Court and lower federal courts: (1) jurisprudence will inevitably ratchet to the left, if liberal activist periods are interrupted only by conservative periods that, while refraining from activism, do not reverse leftward drift; (2) questioning of nominee views must now become standard for liberal as well as conservative choices.
Washington Times pundit Wesley Pruden sees the Democrats gearing up their "Borking machine" to target those opposing whomever 44 nominates. Call this collateral Borking. Pruden acidly captures what 44 wants for the Court:
The president's farewell toast to David Souter suggests that he's not necessarily looking for a lawyer who understands the Constitution and the meaning of an oath to protect and defend that Constitution, but a nominee who knows all the words to "Kumbaya" and wants to give the world a Coke. "I will seek someone who understands that justice isn't about abstract legal theory or a 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. I view that quality of empathy ... as an essential ingredient for arriving at just decisions."
This is an odd job description from a man who once taught constitutional law, but there's a considerable difference between the Constitution and constitutional law. The Constitution is a remarkable document, written by learned men in the plain language that the common man understands. The modern study of constitutional law is the work of lawyers trained to deconstruct plain language in search of things the authors of the Constitution never put there. Mr. Sessions and his colleagues have thankless work to do.
National Journal law columnist Stuart Taylor superbly profiles the ideal Justice the President should nominate--not a liberal activist, because 44 would risk seeing his national security policies undermined:
As I have noted briefly, the intersection of law and national security will provide the most consequential cluster of issues that the Supreme Court will consider over the next decade or more. Obama surely understands that the Court's response to his national security policies will be more important by far to the success of his presidency than any decisions on abortion, race, religion, gay rights, crime, or free speech.
Obama's national security policies are already under relentless attack from leading advocates of liberal judicial activism, such as the ACLU. Indeed, most (or at least many) lawyers and scholars who favor a liberal activist approach on social issues also tend to support relatively broad judicial power to overrule the president on national security.
The justifiable rejection of President Bush's wildly excessive claims of near-dictatorial war powers by the five more-liberal justices -- including Souter and swing-voting centrist Anthony Kennedy -- has a downside for Obama. The justices, followed by the lower courts, have now asserted far more power than ever before to oversee and second-guess presidential decisions about national security.
Meanwhile, in moving from campaign mode to the presidency, Obama has had many reasons to worry about such judicial second-guessing. One federal District judge has rejected the administration's claim that it can detain suspected jihadist fighters captured outside Afghanistan at Bagram Air Base without judicial oversight. A federal Appeals Court has rejected the White House's efforts to use the "state secrets" doctrine to block lawsuits by former detainees who claim they were tortured.
Still other lawsuits demand the release of any detainees in the war on terrorism who cannot be convicted of crimes, and publication of classified CIA documents that Obama would rather keep under wraps. A reported, perhaps tentative plan by administration officials to use "military commissions" instead of ordinary courts to try some of the detainees for war crimes would surely bring more legal attacks. And for the foreseeable future, squadrons of liberal lawyers will be suing a range of companies for cooperating with the president on matters such as wiretaps, "renditions" of suspected terrorists to other countries, and other actions deemed by Obama to be vital to national security.
The more the courts smile on such lawsuits, the harder it will be for the president to protect the country. Indeed, some human-rights and civil-liberties activists have done their best to hamstring virtually all of the surveillance, search-and-seizure, detention, and related powers on which the government depends to find and disable suspected terrorists.
It's unclear how Obama would fare in such cases with the current Court. But he would surely run the risk of seeing some of his key security policies overturned if he were to choose someone who turns out to be more aggressive than Souter in curbing presidential war powers.
One law maven examines what 44 means by "pragmatism" on the part of judges, and smells incipient liberal activism. Legal scholar Richard Epstein details how judges should approach rulings (hint: not via "empathy"). To Sowell reminds us of how Justice Oliver Wendell Holmes (Supreme Court tenure: 1902 - 1935) scorned empathy in deciding cases.
So as not to be too depressing, comedian Jim Colbert has a Colbert Report "Empathy" video (3:22) that hilariously satirizes the line of critics about President 44's citation of "empathy" with ordinary people's problems as one criterion for picking a Supreme Court nominee--namely, that "empathy" is a code word for judicial activism. It is, but enjoy Colbert's riff.
Comments