Thursday, May 7, 2009

Goldwater Institute: Replacing Justice Souter

Clintby Clint Bolick
Though President Barack Obama's pick to replace Justice David Souter will not immediately affect the U.S. Supreme Court's ideological balance, it could impact the Court's direction for a long time. The crucial question is how far left Obama will look.

David SouterEarly indications are troubling. Obama wants nominees with "empathy" for people's real-world struggles. Empathy can be an important quality for legal advocates and policymakers. But for Supreme Court justices who are sworn to defend and protect the Constitution, the sole criterion should be fidelity to the rule of law--a factor that is eerily absent whenever Obama discusses possible judicial nominees.

There are plenty of liberal judges and legal scholars who see things differently than the current U.S. Supreme Court majority, but who ground their views in a good-faith interpretation of the words and intent of the Constitution. Others, however, see the Court as a vehicle to transform society according to abstract views of "social justice."

Although Obama has pledged to "fundamentally transform America" and plainly does not view the Constitution as an obstacle to an unprecedented federal government intrusion in the economy and individual decision-making, he may be well-advised to act with restraint in choosing a Supreme Court justice. When judges exceed their judicial powers to exercise executive or legislative powers, or when they create new rights and responsibilities out of thin air, they can make judicial selections an election issue, as the Warren Court did in the 1950s and '60s.

So if Obama chooses someone with radical views, such as Stanford Law Professor Pamela Karlan or Massachusetts Governor Deval Patrick, he may face not only a fight with Democratic moderates in the U.S. Senate, but an electoral backlash as well.

President Obama also took an oath to the Constitution--twice, in fact. Let's hope that in his Supreme Court appointments, above all, he takes that oath seriously.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.

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