We must restore conservative principles to the courts

The raging controversy over filling the Supreme Court vacancy of Justice Antonin Scalia, whose tragic death unleashed a political firestorm over whether President Barack Obama should nominate his successor, or whether the next president should make the nomination, must be looked at in perspective.  It is a true waste of time giving more than a bemused passing notice to the ranting of Democrats, who accuse the Republican-led Congress of all manner of wrong-doing in its opposition to a nomination by Obama, all the while hypocritically ignoring their own precedent-setting actions over the last 10 or so years, when they wrote the book on how to oppose Supreme Court nominations. This process is and has long been a political exercise.

And, at least one high-ranking judge proclaims that the High Court itself is politicized. Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School, explains this in a commentary published by The Washington Post, where he wrote, “Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.”

We expect Congress to be heavily political, and while the president belongs to a political party and is chosen through a political process, we expect the administrative agencies to apply regulations and laws in a fair, neutral, non-political manner.

Judges at all levels are expected and presumed to be impartial in applying the law and are sworn to follow the precepts of the U.S. Constitution. They must resist allowing their personal ideals or political leanings to affect the rulings or opinions they produce. The Constitution created three co-equal branches of the government, therefore all branches must employ restraint in order to remain within their Constitutional boundaries.

Posner excuses the tendency of judges to fall back on their personal and political beliefs because there is no clear instruction from the Constitution in situations the Framers could not have foreseen more than 200 years ago. Justice Scalia, however, had little trouble following the Constitution’s language when deciding his position on cases before the Court.

Scalia, you see, was a “conservative” judge, an “originalist.” According to the Oxford Dictionaries “conservative” means: “Holding to traditional attitudes and values and cautious about change or innovation.” Applied to the federal judiciary, as viewed by believers in strict constructionism and originalism, the term means adhering to the meaning of the words in the U.S. Constitution and the Bill of Rights as they were understood by those who wrote those documents at the time they wrote them.

Thus, judicial conservatives rely on the original language and intent of the Constitution, while judicial liberals assert that the Constitution must be a “living” document, the exact meaning of which changes with the times or depends upon who is interpreting it. Such a view allows for “judicial activism.”

“Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning,” according to a definition from the Heritage Foundation. “As such, activism does not mean the mere act of striking down a law,” it also means making law from the bench.

But the Constitution gives Congress the authority and responsibility to make law, not the judicial or executive branches, and that plainly stated Constitutional principle is clear and unmistakable.

Judges should consider things like whether Jefferson, Franklin, Madison and the others would have approved of the size, power or cost of the federal government, given the abuses that produced the Revolution and the deliberate efforts to restrict all of those features. Or, whether they would have allowed the Supreme Court or the executive branch to misappropriate the law making authority of the Congress.

If you still doubt that the Supreme Court has become an activist court, consider this tidbit from Justice Ruth Bader Ginsburg, who told The New York Times that “she was fully engaged in her work as the leader of the liberal opposition on what she called ‘one of the most activist courts in history.’”

Making laws from the bench and judicial expansion are not products of judicial conservatives, whose adherence to original intent maintains a stable legal foundation. That is unpopular among judges who want to expand the authority and power of the courts.

The Supreme Court must not reinterpret the Constitution. If what might prompt the activists to vote in favor of one side or the other in a case before the Court is something that is indeed a good thing for the country, and passes the standard of constitutionalism, then it must be sanctioned by an act of Congress, not the courts.

The growth of activist judges argues for restoring judicial conservatism to the nation’s highest court. President Obama is unlikely to nominate such a person. Reports say that the list of potential nominees for the Scalia seat on the Court has been reduced to five, and four of them contributed to Obama campaigns.

The politics of filling vacancies on the United States Supreme Court

Lovers of the United States Constitution were deeply saddened by the passing of Supreme Court Associate Justice Antonin Scalia, a champion of the Constitution’s original meaning.

His death has triggered a political crisis and there is now great weeping and gnashing of teeth across the land over finding a replacement for him. The need to do so is constitutional, but the weeping and gnashing is political.

Scalia was a believer in the idea that words have specific meaning that should not be subject to the whims of mere mortals who think that the Constitution is rendered moot because many decades have passed since those words were carefully configured, and humanity and America has evolved, or because some ideological group finds the original language inconvenient.

The challenge is finding a suitable replacement for Scalia, who believed in textualism: reading the actual language; and originalism: understanding the written words. He and others who value the meaning of words and who honor the Founders cannot abide the concept of a “living Constitution,” a document that means only what a particular group wants it to mean to satisfy a particular desire at a given time.

Addressing the idea of changing the Constitution’s meaning for convenience or ideological preference, Scalia asked the Woodrow Wilson International Center for Scholars in Washington, D.C., in 2005, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

And in his dissent in the United States v. Virginia in 1996, he wrote: “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”

So much of the nation’s problems result from changing the meaning of words to allow things that would appall the Founders, if somehow they were to return tomorrow to check up on how their wonderful creation is faring. Would they recognize their country? Would they want to live here? Would they feel appreciated enough to dare to walk the streets?

Walking the streets would subject them to such foreign concepts as that the term “founding fathers” is now regarded by some as a sexist phrase, even though all of the people who created the U.S. Constitution were, in fact, men. If they then passed an appliance store with a TV in the window, they might see Bernie Sanders offering Americans “free everything” in return for their votes, see Hillary Clinton barking and screaming at her audience, or observe the President of the United States routinely circumventing the U.S. Constitution, perhaps inducing chest pains, and maybe producing their second death, this time from unnatural causes.

The Supreme Court is supposed to be an impartial arbiter, using the plain language of the Constitution to guide it in rendering constitutionally appropriate rulings. A “living Constitution” that means different things at different times is no governing document at all, not so different from a compass that instead of pointing always to magnetic north may be redirected by a swarm of bees, a strong wind, or a Democrat caucus.

As Republicans and conservatives work to prevent the virtual certainty of a Barack Obama nominee who is similar in ideology to himself, Clinton or Sanders, or Justices Kagan, Sotomayer or Ginsburg, Democrats and liberals decry those efforts as unconstitutional and political, conveniently ignoring their own past behavior.

In 2007 long-time New York Democrat Sen. Charles Schumer told the American Constitution Society that if a new Supreme Court vacancy opened up during the rest of George W. Bush’s term, Democrats should not allow Bush the chance to fill it, except in extraordinary circumstances.

“The Supreme Court is dangerously out of balance,” he said. “We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” At the time he expressed that sentiment, Bush had 19 months left in office, nearly twice what Obama has left today. During the same speech, Schumer lamented that he hadn’t managed to block Bush’s prior Supreme Court nominations.

And then there is Obama himself, who recently said he hoped "that we can avoid the political posturing and ideological brinksmanship that has bogged down this process, and Congress, in the past.”

But in January 2006, Sen. Obama joined 24 colleagues in a futile effort led by Sen. John Kerry, D-MA, to filibuster the Supreme Court nomination of Samuel Alito, explaining to George Stephanopulos on "This Week" that he would "be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values.…"

And that bastion of Constitutional behavior and Senate tradition, Sen. Harry Reid, D-NV, who was then Majority Leader, said in 2005, “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.”

Liberals and Democrats, stumbling down Hypocrisy Highway, in addition to trying to rewrite history, are trying to rewrite the U.S. Constitution by stacking the Court with activist jurists who allow their feelings to rule their opinions.