Replacing John Paul Stevens: Crunch Time And Conventional Etiquette

It never should have been, but it has become a convention in America that debating The Constitution is “political.” Liberals, or “progressives” have held The Constitution to be a “living document.” They say that means that the changing circumstances of time dictate a changing understanding of the meaning of the text. For them, it’s about present circumstance, not timeless principle. What it boils down to is that The Constitution can mean what a judge thinks it should; never mind that the very word “judge” means a deliverer of an objective standard, not one that the judge himself necessarily approves. Details, huh?

Obama said he wanted a nominee “who understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” There you have it: you might suggest that to legislators, though they too, are sworn to uphold The Constitution, which they often proceed to ignore. But, it has nothing to do with a judge’s job, which is to judge the law. As John Roberts said in his confirmation, “…if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do." As a constitutional law student and teacher, Obama knows this. But as a liberal he has spurned it, and his oath to The Constitution as president, isn’t worth squat.

Due to the fact that news and entertainment media and education have been dominated by people of a relatively dull understanding, it has become consensus in those forums that conservatives believe in fixed constitutional principles and liberals believe in evolving constitutional meaning, and fairness dictates that conservatives should surrender constitutional principle when a liberal president nominates a judge. And for most of my life, that’s what conservatives have done. Heck, far too often, Republican presidents have supplied the constitutional heretics themselves. The last liberal judge to retire, David Souter, was appointed by Republican George H.W. Bush. Today, John Paul Stevens who has been a liberal leader on The Supreme Court, said he would retire this summer.. He was nominated in 1975 by Republican Gerald R. Ford. Conversely, liberals rejected Ronald Reagan’s nomination of legal scholar Robert Bork. That action earned its own nickname for discrediting and disallowing a nominee: “Borking.” George H.W. Bush’s other nominee, Clarence Thomas, squeezed by after enduring embarrassing accusations of sexual harassment and locker room talk, which he described in the hearings as “a high-tech lynching for uppity blacks.” Thomas has only proved to be a uniquely decent and solid character on the court. His 2007 book is My Grandfather's Son: A Memoir.

But, it’s time for the games to stop, and not just because it’s wrong and tiresome. After many decades of dampening liberty and creeping statism, America is at a breaking point. Honestly, I’m not certain this canyon can be dug out of and I know it can’t be done, painlessly. But if any real effort is going to be made, we need conservatives to soon take power and begin legally dismantling this mess. Are they going to achieve this only to watch activist judges nullify their work with “constitutional” performance-art?

When Stevens’ soon retirement was mentioned last week, I said that Republicans should not be shy about filibustering an activist nominee. I said if an activist nomination is put forward, they should do everything possible to block it. Whether they accept conventional decorum or not, it isn’t about manners, now. Like the law suits over the health care law, liberals will call this frivolous and overstated. But, that’s because in their fantasies, there are no adverse consequences to what they do, and there’s always more money somewhere. This is about the survival of the republic.


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