PrintApril 15, 2010
Obama's 'Mainstream' Nominee
Justice John Paul Stevens' announced retirement from the Supreme Court has Democrats singing their old stand-by, "Down by the Old Mainstream." Their backup band in the mainstream media is tuning up their golden oldie, "It Don't Mean a Thing If Ain't Got That Swing," as in a nominee who swings only left.
When Sen. Chuck Schumer says, "It's just about a certainty that the president will nominate someone in the mainstream," think left bank.
The refrains "mainstream," "moderate," and "balance" will be repeated ad nauseam because big lies and irrelevancies take on the appearance of truth when hammered relentlessly.
"Balance" supposedly means that replacing a liberal with a liberal on a Court with four liberals, four conservatives, and a "centrist" changes nothing. If you believe that adding a young version of Stevens to the Court for the next 30-40 years is inconsequential, then you probably thought that Obama's promise to "fundamentally transform the United States of America" was just a rhetorical flourish.
The nominee will be marketed as a "moderate" from the "mainstream." President Gerald Ford introduced Stevens as a "moderate Republican," a species as rare as a "conservative Democrat" and as elusive as Bigfoot.
Obama has confirmed that his nominee will emulate Stevens. And like Obama and Stevens, the nominee will promise to uphold the Constitution -- make that the "living" Constitution. Thomas Jefferson described it as "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please."
Nothing pinpoints better the competing views at the heart of the coming nomination battle than the following statements from an article on the Supreme Court Website: "The Republic Endures and This is the Symbol of its Faith":
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force. [Emphasis added.]
As if magically, two paragraphs later, the "written" Constitution has evolved into a "living" Constitution:
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations. [Emphasis added.]
Stevens has left little doubt as to which statement summarizes his view. Thirty years ago, he joined a dissenting opinion in Rummel v. Estelle to declare: "We are construing a living Constitution." He has consistently maintained his "living" theory when interpreting the Constitution and federal statutes.
Steven G. Calabresi, a law professor at Northwestern and a co-founder of the conservative Federalist Society, said, "Stevens thinks the law is more of a living thing, and he takes text and history and applies it in a way that he thinks serves the purposes of the framers, not necessarily their exact words," as quoted by Jeffrey Toobin writing for The New Yorker.
Judge Robert H. Bork was more pointed with Toobin about Stevens: "He finds rights in the Constitution that no plausible reading could find there."
According to Toobin, Richard Epstein, a libertarian-leaning law professor at New York University, said, "From the beginning of his time as a Justice, you could see Stevens' roots in the New Deal Court and his willingness to justify an expanding welfare state. On these issues, he's been consistent and consistently wrong about everything -- and highly influential."
Stevens has opined the following based on the "living" Constitution:
- Abortion, including partial birth abortion, may not be banned.
- The death penalty violates the Eighth Amendment.
- The Second Amendment does not include an individual right to possess a gun.
- Virtual child pornography is protected by the First Amendment.
- Homosexual sodomy is protected by the 14th Amendment.
- The First Amendment applies to commercial pornography but not to corporate political speech.
- The Boy Scouts must include homosexuals as leaders.
- Racial preferences are permissible to further the compelling interest in obtaining the educational benefits that flow from a diverse student body.
- The 5th Amendment allows municipalities to use their eminent domain authority to seize private property to sell to private developers if it might benefit a bad economy.
- Alien terrorist detainees may challenge their confinement in federal court.
- Displaying the Ten Commandment on public property violates the Establishment Clause.
- The Interstate Commerce Clause permits Congress to create a federal civil remedy for victims of gender-based violence and the power to regulate the possession of firearms in schools.
A vastly expansive view of the Interstate Commerce Clause is the left's sine qua non to ensure enforcement of ObamaCare against the numerous challenges already filed by attorneys general of nineteen states and private individuals.
Obama wants a rubber stamp for the rest of his socialist policies, including "redistribution of wealth"; unfettered and fully funded abortion; draconian environmental regulations; subordinating the United States to "international law norms"; nationalizing private enterprise; suppressing freedom of speech and religion; homosexualizing the military, marriage, the Boy Scouts, and public schools; and treating enemies of war as common criminals.
Obama knows by now that a majority of the American people have dug in their heels against his leftist onslaught. Consequently, the party line will cast the nominee as a "moderate" from the judicial "mainstream" as a ploy to detract from everything the nominee has ever said, read, or written that proves that his or her judicial ideology is permanently planted in left field.
A balanced Court requires justices who subordinate themselves to our written Constitution, constitutional system, and the limited role of judges. Regardless of the nominee's "qualifications," senators have a constitutional duty to reject someone who is demonstrably disposed to creating "rights" and upholding legislation that defies the Constitution.
Senators must not succumb to the "mainstream" spin and default to the passive mindset of inevitable confirmation. They have a duty to educate themselves and the American people about the nominee's statements, writings, and record, which is the best evidence of the nominee's judicial philosophy.
Americans want their Republic to endure. Contrary to the article on the Court's website, it is the Constitution, not the Court, which is the symbol of their faith.
Jan LaRue is senior legal analyst with the American Civil Rights Union.
