Good Riddance!

Good Riddance!
Thomas Sowell
Tuesday, April 13, 2010

When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.

The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?

John Paul Stevens is a classic example of what has been wrong with too many Republicans' appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.

Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals.

Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican party has long ago mastered the art of preemptive surrender.

The net result has been a whole string of Republican Justices of the Supreme Court carrying out the Democrats' agenda, in disregard of the Constitution. John Paul Stevens has been just one.

There may have been some excuse for President Ford's picking such a man, in order to avoid a fight, at a time when he was an unelected President who came into office in the wake of Richard Nixon's resignation in disgrace after Watergate, creating lasting damage to the public's support of the Republicans.

But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.

In light of these justices' records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.

If and when the Republicans return to power in Washington, we can only hope that they remember what got them suddenly and unceremoniously dumped out of power the last time. Basically, it was running as Republicans and then governing as if they were Democrats, running up big deficits, with lots of earmarks and interfering with the market.

But their most lasting damage to the country has been putting people like John Paul Stevens on the Supreme Court.
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To read another article by Thomas Sowell, click here.

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The Next In(Justice)
Cal Thomas
Tuesday, April 13, 2010

Wouldn't it be nice (as the Beach Boys sang in a completely different context) if once, just once, a liberal Democrat president nominated to the Supreme Court someone he believed reflected his views of the Constitution only to see that justice swing to the right after he was confirmed? That hasn't happened since John F. Kennedy named Byron "Whizzer" White to the court and White cast one of two dissenting votes in the infamous Roe v. Wade abortion case in 1973. Every judge named by a Democratic president since then has been reliably liberal.

Republican presidents have had less success in naming reliably conservative jurists to the court. Dwight Eisenhower would come to regard Earl Warren as the "biggest damned-fool mistake I ever made." Gerald Ford, a moderate Republican, nominated now-retiring John Paul Stevens, who held a liberal view of constitutional language. The sainted (for conservatives) Ronald Reagan gave the country Sandra Day O'Connor and Anthony Kennedy. O'Connor was the swing vote on cases that might have rolled back Roe, which came to stand for abortion on demand, but she declined to do so. Same with Kennedy, who became more concerned with precedent rather than a case wrongly decided.

George H.W. Bush nominated David Souter after being assured by his chief of staff and Souter's fellow New Hampshireman, John Sununu, that he was reliably conservative. Souter turned out to be as liberal on many important issues as Justice Stevens.

The problem for more than half a century has been whether members of the Supreme Court see themselves as faithful interpreters of what the Founders intended, or judicial freelancers with the power to create law, claiming it was what the Founders intended, or worse, believing that it doesn't matter what the Founders intended, which is where liberal judges have brought us. Too many modern jurists behave like constitutional gods, handing down commandments as if from Mt. Sinai.

President Obama shares this liberal view of the Constitution, so it is unlikely he will name a moderate, much less a conservative, to the court. In his book "The Audacity of Hope," Obama devotes an entire chapter to his view of the Constitution. To him its language is not fixed, but fluid and thus open to subjective interpretation by presidents and judges. Obama thinks free speech, to take one example, requires a different interpretation in the Internet age than it did in the 18th century, and besides, he writes, the Founders profoundly disagreed on many issues. Yes, but they agreed on the language of the Constitution.

A New York Times editorial said Justice Stevens had a reputation for being on the side of "fairness and justice." The left reserves the right to interpret such notions. The Constitution ought not be open to individual interpretation. The Framers meant what they wrote. Their words have served the country well, at least until the reinterpreters began defining the words according to their political biases.

Liberals view the Constitution as an impediment to their political and social agenda. Like water running downhill, liberal jurists will go around, over, under or through any obstruction that impedes them from imposing their worldview from the bench, and without the approval of the Constitution or the electorate.

Whoever Obama nominates, at least two things are guaranteed. First, the person will be a liberal in the tradition of John Paul Stevens and Chief Justice Charles Evans Hughes (1862-1948), who famously said, "The Constitution is what the judges say it is." Second, no matter how far left the person is, you won't hear the big media say the nominee is "out of the mainstream" as when a Republican president nominates a conservative to the court.

By some estimates, this is a 70-30 center-right nation. How, then, is a far-left liberal nominee considered mainstream and a moderate-to-conservative one not mainstream?

There is always the outside chance an Obama nominee will convert to judicial restraint, but that is as likely to happen as a tax cut from this president.