Obama and the Appointment of Supreme Court Justices

Last night, Supreme Court Justice David Souter announced that he would be retiring in June. He has just turned 69, but has said numerous times that he is sick of Washington life and really wants to go home and live a normal life. Luckily for him, he still has a home. He was one of the justices that ruled in favor of the "Eminent Domain" case (Kelo v. City of New London) that evicted an 88 year old woman from the home that she had lived in her entire life (among other residents). They tore her house down to build a resort, but the company that was fronting it went bankrupt, so the land is sitting there with nothing on it because no one else wants it.

Conservatives knew there was a likelihood that Obama would be in the position of appointing 2 Supreme Court Justices, Ruth Bader Ginsberg is 76 and in failing health, John Paul Stevens is 89. Both of these justices are ultra liberal so there really would not be a change to the make up of the court. David Souter was appointed by Pres. George H. W. Bush as a moderate to right leaning justice, but he has proven that he is almost as left leaning as Justice Ginsberg.

There are basically two views on who should be on the Supreme Court. There are the Constitutionalists, (usually conservative) that believe that the role of the Supreme Court is to interpret the Constitution, favoring limited Government, as prescribed by the Constitution. The other side is that of Judicial activism (usually liberal) that believe it is acceptable to legislate from the bench and that rulings can be based on personal ideology. The Supreme Court is not supposed to legislate. That is why we have a legislature. Our founding fathers spelled out in the Constitution how this is supposed to work.

For instance, if part our Constitution needs to be changed, abolishing of slavery for example, that change cannot be legislated from the Supreme Court. That needs to be, per our Constitution, changed by Amendment. Our Constitution is very specific about these matters, and I would challenge any and all of you to actually read and look into the law of our land, the United States Constitution. Only 3% of the US population has ever read the whole text, and I would bet that a small percentage of them have bothered to really look into anything that they do not understand.

Now to my point. Obama is judicial activist. While campaigning, he said, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

This goes completely against what our Constitution spells out. For those of you who consider our Constitution outdated, I say to you, if that's the case, then we have NO LAW of our land. You cannot pick and choose which parts you like; it's either all or none. Our founding fathers were very wise. (I recently read a book titled "Something That Will Surprise the World: The Essential Writings of Our Founding Fathers". It is a book of actual letters of Washington, Hamilton, Jefferson, Adams, and Madison among others, and will blow you away.) They knew that the world would change and that we as a country would evolve. They put the amendment process in the Constitution so that one person, the President, or even 9 people, the Supreme Court, could not make decisions that explicitly went against the Constitution.


When Obama was running for president, I found the following writings extremely informative. They are short and to the point.

On Judicial Activism: Legislating from the bench is a good way to describe judicial activism. Judicial activism occurs when a Judge or Justice decides an issue based on personal or political ideology or pressure from special interests instead of abiding by the Constitution and/or previous precedent. The United States has a system of checks and balances to insure that one branch of the federal government will not become too powerful. Under the separation of powers doctrine, only Congress has the power to legislate. Judicial activism violates that separation of powers by effectively creating new law that often affects the entire nation instead of settling the particular case at hand.

It makes sense that the judiciary, which is appointed rather than elected and held accountable by the people, does not have the ability to legislate. When judicial activism occurs, it is a usurpation of power. In other words, judicial activism means a Justice oversteps the jurisdiction of the Court or creates a ruling that radically diverges from common law, jurisprudence, and the intent of the Constitution. Judicial activism may also be a case of Judges or Justices overruling existing law or creating legal doctrines without precedent or support, which undermine or recreate policy, usually social policy.

While a judge who engages in judicial activism does not technically write a law, he or she often creates the same effect by handing down a ruling that allows or prohibits a certain action. Take abortion, a very controversial issue, for example. Roe v. Wade created a right for women to have abortions, which soon became the law of the land. There is no rationale for such a right, just as there is no support found in the Constitution for a nationwide ban.

Abortion is a state's rights issue, because it is not addressed in the Constitution, and therefore should have been decided by the states individually. Whether you agree with abortion or not isn't the question, nor is party affiliation. Both sides are guilty of judicial activism. The real issue is that one court does not have the right to decide the rule of law for all states, when it comes to issues not covered by the Constitution.

The same is true when it comes to marriage, and many other hot button issues. The Constitution does not grant such power to the Court or the Federal Government, and therefore these issues are to be decided by the states and by the people, not through judicial activism. The only other appropriate alternative is to amend the Constitution to address those issues not already covered.

On Constitutionalism: A constitutionalist is often known by other names such as a constitutional conservative or a strict constructionalist. While the latter term typically refers to judges and justices, it is also used to describe any person that believes in a strict reading of the Constitution. A constitutionalist favors limited government, as prescribed by the Constitution. In the beliefs of the constitutionalist, such a government should be small not only in size but also in scope and in power.There are different principles espoused by various constitutionalist organizations as well as individuals. Two of the main schools of thought are those of the textualist and originalist. While the two share some beliefs, their view of how the Constitution should be interpreted differs to some degree. Yet, no self-proclaimed constitutionalist believes in judicial activism, even it would benefit his or her cause.

It has long been held that the Constitution as well as laws and other legally binding documents should be interpreted by the definitions of the terms used at the time they are written. The constitutionalist embraces this principle. It is found in both textualism and originalism.

Texualists believe in as literal an interpretation as possible, although it is not always feasible to construe each precept in a completely literal manner. To do so would allow no limits against such things as "arms," which are protected by the Second Amendment. This would then allow the average citizen to legally own and use nearly any weapon known to man, including weapons of mass destruction.

Many people believe that there should be some reasonable limits even on rights that are deemed inalienable. The right itself, the right to defend oneself, is what is inalienable. Yet, many people don't accept it to mean that the methods used should have no limits. The same can be said of free speech and other rights, although some who hold strictly to the constitutionalist philosophy disagree.Originalists also hold that textualism is important, although they place more reliance on the framers' intent. The original intent is then more important than the precise words used and is often learned by reading the Constitution along with other writings by the framers at the time. The Federalists Papers are but one of the favored sources of the constitutionalist. To avoid extrapolations often based in semantics, as has been the case too often where judicial activists are able to provide their own interpretations, originalism demands that the Constitution be interpreted according to what the Founders sought.



The very core of our Country is at stake with these appointments. Barack Obama has said that he will not do what our Constitution demands. He wants to appoint judges that instead of interpreting, "have empathy". That is not what the law dictates. It is not what OUR LAW dictates. This is a very dangerous path, one that could affect the lives of our children and grandchildren, and possibly even their children. So, before you go bashing the republicans for wanting to block Obama’s appointments, please look into these two schools of thought. And I hope that you will find that our Constitution is just as beautiful, important, and carefully scripted as I think it is. If Obama does what he has said he will do, he will be flicking his cigarette at our country and putting it out with the toe of his shoe.