Only a hundred days in office and already President Obama has the opportunity to push the Supreme Court even further into judicial activism. When he announced David Souter's retirement today and talked about his replacement, he said not one word about looking for judges who will uphold the Constitution and the rule of law. In fact, he said just the opposite:
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity.
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.
Uh, excuse me, an independent mind? Exactly what does that mean?
The President makes the answer abundantly clear in his next statement that justice is not about some "abstract legal theory" and "footnote[s] in a case book." Consider that the "abstract legal theory" he's talking about is the U.S. Constitution which many liberals believe is out of date and should be scrapped. The "footnotes in a case book" mean legal precendents that illustrate what the Framers intended indicating how the Constitution should be interpreted. (Remember, the role of the court is not to make law; that's the job of the legislative branch.) So what does Obama want to take the place of the Constitution and the rule of law? It's pretty easy to see from all his executive orders and other actions by-passing the legislature: individual interpretation made up out of thin air.
That is exactly what happened on the Supreme Court in the the 1962 Engel vs. Vitale case that threw prayer out of the public schools. The prayer beginning the day was generic and non-coercive. (“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”) It was hardly the "establishment of religion" forbidden by the Constitution. (The Framers included the "establishment clause" to prevent a state religion like that in England which caused so much persecution under King Henry VIII, Elizabeth I, etc.)
What is particularly noteworthy about Engel vs. Vitale is that the decision, written by Hugo Black for the majority, cited NOT ONE LEGAL CASE PRECEDENT. There weren't any. Previous courts had upheld the constitutionality of prayer and religious activity as long as it did not establish a state religion.
So if the Constitution doesn't rule on an Obama court what will?
Take him at his word. He says he will name justices who consider things like people making a living and caring for their families, and "feeling welcome" in their own country, etc. Read between the lines. He seems to be suggesting that the court should judge cases according to who the defendants and plaintiffs are and what the desired outcome is. (That's how Roe v. Wade came about with its justification in the "right to privacy" which is nowhere enumerated in the Constitution. Justice Harry Blackmun, with the help of his colleague William Brennan, a so-called Catholic, found it in the "penumbra," the halo glow around the moon. Seems appropriate since the ruling was moon-batty.)
Under Obama, expect Lady Justice to be stripped of her blindfold allowing her to see which side is politically correct so she can rule accordingly. Her scales will be tipped by weighted balances that support abortion, same-sex marriage, and other liberal sacred cows.
Activist courts are not new. The Federal Judiciary has been making laws for years and the Supreme Court has vacillated according to the balance of strict constructionists vs. loosy-goosy liberals who make things up as they go along. Souter was a liberal. His replacement by another liberal will maintain the status quo even though we can expect an Obama appointment to be a radical leftist. Since liberalism rules the Senate, there is no brake to the Obama juggarnaut. The balance of the court will change drastically when a conservative whose legal decisions are formed according to the Constitution retires. Then, look out!
No one wants to play a game of Blind Man's Buff when the person in the blindfold cheats. Unfortunately, the President seems intent on replacing Lady Justice with a strumpet.
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