LONG: Opening of a sorry chapter

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By Wendy E. Long

COMMENTARY:

Supreme Court Justice David Souter has decided to hang up his robe and go back to his native New Hampshire, handing President Obama his first Supreme Court nomination.

The president's remarks yesterday confirmed what Americans who care about the court and the Constitution have been dreading since the campaign. Mr. Obama will make Supreme Court history, all right. He will become the first president in American history to make lawlessness an explicit standard for Supreme Court justices.

Sure, other presidents have appointed judges who turned out to be liberal judicial activists. Former President Dwight D. Eisenhower, looking back on his presidency, reflected that his "two biggest mistakes" were "both sitting on the Supreme Court": Chief Justice Earl Warren and Justice William Brennan. He had appointed them, not for their judicial philosophies, but because Chief Justice Warren had swung the California delegation to Mr. Eisenhower over Robert Taft in 1952, and he hoped Justice Brennan would help with the urban eastern Catholic vote and would fill the one "Catholic" seat on the court.

In a moment of complete candor, former President George H.W. Bush probably would say, as Mr. Eisenhower did, that one of his biggest mistakes sat on the Supreme Court, in the person of Justice Souter.

Justice Souter turned out to be a liberal judicial activist who voted fairly reliably in many 5-to-4 constitutional cases to write new "rights" into the Constitution. These included constitutional rights for enemy terrorists, rights for liberals and atheists to be free from ever hearing a public prayer or seeing the Ten Commandments displayed in public, right for abortionists to crush skulls of full-term babies and suck them from their mothers' wombs in defiance of reasonable regulations enacted by the citizens who thought they were born into a country that permitted self-government. And he voted to ignore the explicit rights actually spelled out in the Constitution (such as the right to keep private property unless the government needed it for some public purpose, and the right of citizens to keep and bear arms).

But Presidents from Mr. Eisenhower to Mr. Bush - including Presidents Carter and Clinton - never set out to make liberal judicial activism the gold standard for Supreme Court Justices. Justice Souter, in the vernacular of court watchers, "grew" into his liberalism. Untested before in the fire of high-pressure federal constitutional decision-making, he caved to the pressure of liberal elite opinion instead of standing immune to it as the Founders intended when they wrote life tenure for federal judges into Article III of the Constitution.

And now, Mr. Obama. He has boldly proclaimed that he intends to make sure his nominees to the Supreme Court don't harbor any crusty fealty to the written Constitution, or the millenniums of Western law that undergird its principles, or to the timeless truths that underlie our Declaration of Independence.

Obama nominees won't have to waste time agonizing and ultimately caving to far-left liberal political preferences. He'll be sure they crusade for them, right from the start. In fact, it's Mr. Obama's most important criterion for selection.

During the campaign, Mr. Obama promised a Planned Parenthood conference in 2007 that he would look for a justice with "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."

Yesterday, he reiterated the same lawless standard: "the quality of empathy, of understanding and identifying with people's hopes and struggles," is "an essential ingredient for arriving at just decisions and outcomes." (Does he really think that Justice Clarence Thomas, who grew up in the Jim Crow South, can't identify with anyone's hopes and struggles?)

In his arrogance, Mr. Obama has overlooked the fact that he was not elected based upon his criteria for Supreme Court justices. He listened to the coos of those at New York and San Francisco cocktail parties who laughed with him at the folks who "cling to their guns and their religion." (Mr. Obama's judges obviously won't have much empathy for these people - even though their rights are guaranteed explicitly in the Constitution.)

Mr. Obama has overlooked that he was elected despite his position on judges - not because of it. In fact, Americans disagree with Mr. Obama's lawless standard of partiality by a margin of more than 3-to-1. Regardless of whom they voted for in the election, 70 percent of Americans want judges who "will interpret and apply the law as it is written and not take into account their own viewpoints and experiences." Just 22 percent think a judge should "go beyond interpreting and applying the law and take into account their own viewpoints and experiences."

Mr. Obama's nominee will carry with her to the Senate a presumption that she will, as her nominating president has said, have "empathy" for certain favored liberal causes and parties - making it difficult, as Republican Leader Mitch McConnell has said, to uphold the federal judicial oath to dispense justice impartially. Mr. Obama's gold standard is the very opposite of impartiality.

Never in history have senators had such a heavy responsibility to scrutinize a nominee to see if she intends to follow the president's lawless standard of judging. If she does, they will have a responsibility to vote against her - and for the Constitution and the rule of law.

Wendy E. Long is counsel to the Judicial Confirmation Network.