May 4, 2009
Obama's Supreme Court Renovation BeginsBy Jan LaRue
Retiring Supreme Court Justice David H. Souter has handed President Barack Obama his first chance to nominate a judge to the nation's highest court. Sand-blasting "Equal Justice Under Law" from the Courthouse should commence if the Senate confirms a nominee who matches Obama's criteria for judges.
Souter advised Obama that he will be retiring from the Court at the completion of its term on June 30. Souter took the oath of office on October 9, 1990, swung left and never turned back. While Souter's replacement won't change the Court's so-called "balance," it will solidify it for years to come.
Souter is Obama's kind of judge, as are Justices Ruth Bader Ginsberg and Stephen Breyer. Obama opposes the interpretive philosophies of justices Antonin Scalia and Clarence Thomas, which is also why Obama voted against confirming John Roberts as chief justice and Samuel Alito as associate justice. Obama doesn't abide judges who apply the U.S. Constitution as the supreme law of the land without considering the ruminations of extra-territorial transnationalists.
Speaking of Souter, "Obama said he valued the ‘quality of empathy' and was hopeful of finding a new justice who would reflect on people's ‘hopes and struggles' in the process of arriving at legal decisions." Obama is searching for somebody who shares his "respect for constitutional values," according to The Los Angeles Times.
Speculation abounds about possible nominees. Sounds like the empathy money should be on Oprah or Deepak Chopra, Obama devotees.
In his book, Audacity of Hope, Obama affirmed his belief that the Constitution "is not a static but rather a living document and must be read in the context of an ever-changing world."
Think "Etch-a-Sketch." Your "blessings of liberty" are subject to judicial re-write.
Obama told a Planned Parenthood conference on July 17, 2007, what he wants in a judge:
Obama signaled Planned Parenthood that his judges would uphold abortion and its federal funding, despite Planned Parenthood's targeting of minority communities for abortion. It claims "the need is greater" there.
That's some empathy. You'd think that a sharp professor who "taught constitutional law for 10 years" would pick up on that racism thing.
Obama's inconsistencies are alarming when you compare what he wants in judges with the oaths that federal judges are required to take. Senators have a constitutional duty to seriously evaluate from the record whether a nominee can be trusted to keep both before voting to confirm.
The first oath is to the Constitution. The Founders meant the one they signed and we the people ratified, not a version emanating from the nominee's imagination. The oath is codified at 5 U.S.C. § 3331:
The great Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution of the United States:
Unlike Story, if the law isn't "clear," Obama wants a judge to "bring in his or her own perspectives, his ethics, his or her moral bearings" into consideration." He wants a supra-legislator, not a judge.
Secondly, the Senate must consider the "judge's oath," codified at 28 U.S.C. § 453:
Obama's criteria for judges are exactly the opposite of the oath. Picture "Lady Justice" with no blindfold and a big thumb on the scale.
Justice John Marshall Harlan rejected the perversion of "Equal Justice" in his powerful dissent in Plessy v. Ferguson:
If senators give their "advice and consent" without due regard to the nominee and these oaths, they may as well stop spending millions to preserve the Constitution housed at the National Archives, and, for the sake of consistency, appropriate funds to have the images of Moses scraped off the Court's building. Those images are a pesky reminder of the right standard for selecting judges:
Appoint judges and officials for each of your tribes in every town the LORD your God is giving you, and they shall judge the people fairly. Do not pervert justice or show partiality. Do not accept a bribe, for a bribe blinds the eyes of the wise and twists the words of the righteous. Follow justice and justice alone, so that you may live and possess the land the LORD your God is giving you. Deuteronomy 16:18-20 New International Version
It would be a bribe of supreme proportion to take an oath with crossed fingers in order to obtain a seat on the Supreme Court. The injustice could be surpassed only by a Senate that fails to stop it.
Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families.