Justices rarely take turn to right

April 13, 2010


Wouldn’t it be nice (as the Beach Boys sang in a completely different context) if once, just once, a liberal Democrat president nominated to the Supreme Court someone he believed reflected his views of the Constitution only to see that justice swing to the right after he was confirmed? That hasn’t happened since John F. Kennedy named Byron “Whizzer” White to the court and White cast one of two dissenting votes in the infamous Roe v. Wade abortion case in 1973. Every judge named by a Democratic president since then has been reliably liberal.

Republican presidents have had less success in naming reliably conservative jurists to the court. Dwight Eisenhower would come to regard Earl Warren as the “biggest damned-fool mistake I ever made.” Gerald Ford, a moderate Republican, nominated now-retiring John Paul Stevens, who held a liberal view of constitutional language.

The sainted (for conservatives) Ronald Reagan gave the country Sandra Day O’Connor and Anthony Kennedy. O’Connor was the swing vote on cases that might have rolled back Roe, which came to stand for abortion on demand, but she declined to do so. Same with Kennedy, who became more concerned with precedent rather than a case wrongly decided.

George H.W. Bush nominated David Souter after being assured by his chief of staff and Souter’s fellow New Hampshireman, John Sununu, that he was reliably conservative. Souter turned out to be as liberal on many important issues as Justice Stevens.

The problem for more than half a century has been whether members of the Supreme Court see themselves as faithful interpreters of what the Founders intended, or judicial freelancers with the power to create law, claiming it was what the Founders intended, or worse, believing that it doesn’t matter what the Founders intended, which is where liberal judges have brought us. Too many modern jurists behave like constitutional gods, handing down commandments as if from Mount Sinai.

President Obama shares this liberal view of the Constitution, so it is unlikely he will name a moderate, much less a conservative, to the court. In his book “The Audacity of Hope,” Obama devotes an entire chapter to his view of the Constitution. To him its language is not fixed, but fluid and thus open to subjective interpretation by presidents and judges. Obama thinks free speech, to take one example, requires a different interpretation in the Internet age than it did in the 18th century, and besides, he writes, the Founders profoundly disagreed on many issues. Yes, but they agreed on the language of the Constitution.

A New York Times editorial said Justice Stevens had a reputation for being on the side of “fairness and justice.” The left reserves the right to interpret such notions. The Constitution ought not be open to individual interpretation. The Framers meant what they wrote. Their words have served the country well, at least until the reinterpreters began defining the words according to their political biases.

Liberals view the Constitution as an impediment to their political and social agenda. Like water running downhill, liberal jurists will go around, over, under or through any obstruction that impedes them from imposing their worldview from the bench, and without the approval of the Constitution or the electorate.

Whoever Obama nominates, at least two things are guaranteed. First, the person will be a liberal in the tradition of John Paul Stevens and Chief Justice Charles Evans Hughes (1862-1948), who famously said, “The Constitution is what the judges say it is.” Second, no matter how far left the person is, you won’t hear the big media say the nominee is “out of the mainstream” as when a Republican president nominates a conservative to the court.

By some estimates, this is a 70-30 center-right nation. How, then, is a far-left liberal nominee considered mainstream and a moderate-to-conservative one not mainstream?

There is always the outside chance an Obama nominee will convert to judicial restraint, but that is as likely to happen as a tax cut from this president.

— Cal Thomas is a columnist for Tribune Media Services. tmseditors@tribune.com


cato_the_elder 8 years, 2 months ago

So, so true. The appointment of Earl Warren was the worst Supreme Court appointment in the second half of the 20th century, and Ike was responsible for it. Earlier, Charles Evans Hughes, a Republican, caved in to Roosevelt's threats to pack the Supreme Court and persuaded a majority of his colleagues to vote to uphold what was then the greatest intrusion of federal authority into the lives of private citizens that had ever occurred. The Court's Commerce Clause rulings at that time paved the way for the later decisions of the Warren Court, which went a long way toward completing the emasculation of the doctrine of federalism on which our Country was founded. Republican presidents have all too often made serious errors in Supreme Court appointments, and Stevens and Souter were two of the worst ever. Democrats never, I mean never, do that. Obama's next nomination will be a tried and true liberal ideologue a la Ruth Bader Ginsburg, who will never waver from interpreting the Constitution in whatever manner will produce his or her own view of "social justice," without any particular regard for the Founders' intent. The saving grace is, however, that all that will occur is that one liberal Justice will be replaced with another. If Obama can be defeated in 2012, it's entirely possible that the Court's balance won't be affected for the near future.

Paul R Getto 8 years, 2 months ago

"Liberals view the Constitution as an impediment to their political and social agenda." === Really, Cal? Take some deep breaths. A judge who can read, write, think and rule on difficult questions should be adequate. It's gonna be a long summer.

gccs14r 8 years, 2 months ago

What's crazy is that not only does Cal think that 70% of the electorate is made up of radical Christian ideologues like himself, but that the Court doesn't already have a surplus of radical Christian ideologues on it. What's sad is that Obama, being a moderate Republican, probably won't take this opportunity to put a proper Liberal on the bench, and will instead replace Stevens with another moderate Republican.

Kirk Larson 8 years, 2 months ago

"There is always the outside chance an Obama nominee will convert to judicial restraint, but that is as likely to happen as a tax cut from this president."

News flash Cal, the Stimulus Package included a tax cut for most American households.

Maddy Griffin 8 years, 2 months ago

Yes it did Cappy! Now who can tell me that their taxes have been raised. Even the tax cuts implemented by Bush for the upper 2% haven't been allowed to expire yet.

just_another_bozo_on_this_bus 8 years, 2 months ago

To somewhat paraphrase Churchill

“If you're a conservative when appointed to the SCOTUS for life at fifty, you often realize that your personal advancement is no longer dependent on being a defender of the special privileges of the wealthy, and move away from being an insensitive jerk.”

SnakeFist 8 years, 2 months ago

Seems to me there are two possibilities: (1) non-attorney conservatives don't understand the Constitution and don't understand that conservative justices are as conservative as they can be given a proper understanding of the Constitution, and/or (2) conservatives justice are responsible enough to leave the regressive rhetoric behind when faced with making decisions that actually affect people's lives.

Ever wonder why the most extreme conservatives, e.g., Limbaugh, Hannity, Beck, Savage, don't run for political office? Because they realize their regressive ideas won't work and they'd have to moderate in order to govern effectively. Same thing happens on the Court.

barrymore 8 years, 2 months ago

Snakefist and just-anther -bozo have it down on the mark. Could not of said it better!!

verity 8 years, 2 months ago

What a Supreme Court Justice's political views are shouldn't matter. It's about interpreting the Constitution and the law and has in the past been about precedent. We now have several (rightwing) Justices who have been incredibly activist by ignoring precedent and rewriting definitions. In the past precedent was rarely ignored and doing so was not taken lightly. Justices were generally very careful about setting new precedents and did not necessary rule according to their own beliefs (i.e. whether abortion is moral). Several of our current Justices who are called conservatives are actually quite liberal in their setting aside of precedent.

Paul R Getto 8 years, 2 months ago

Activist judges? I suppose it depends on which constutitional ox is being gored. The current court has been quite activist and 'legislating from the bench' in the last term or two.

georgiahawk 8 years, 2 months ago

On reflection, I would rather be known in history as doing the right thing! I think I will need to give up my conservative ways and be more liberal for that.

Alyosha 8 years, 2 months ago

Cal writes: "There is always the outside chance an Obama nominee will convert to judicial restraint, but that is as likely to happen as a tax cut from this president."

Um, Cal, Obama did cut taxes. "Virginia's richest 1 percent of residents got on average $1,595 each from federal tax cuts in the 2009 stimulus law signed by President Barack Obama -- the biggest average benefit for affluent taxpayers in all U.S. states, said a study released on Tuesday." http://www.reuters.com/article/idUSTRE63C0FY20100413

And, laughably, Cal mentions nothing about rightist justices abandoning "judicial restraint," because that would require him to admit he's full of hot air and his critiques are not motivated by a search for truth but by blind ideology.

We know better. Obama has cut taxes. Rightist judges are just as active as any from the left.

Cal, Thou Shall Not Bear False Witness. Which means, don't spread falsehoods. That makes God mad.

tomatogrower 8 years, 2 months ago

Cal and his cronies would still have only white male property owners as the only citizens with rights in the US. And segregated schools, or worse, no education for minorities at all. You don't want big government? Then don't tell a woman what to do with her body. It's simple. Want to pray in school? Anyone can pray in school, they just can't force others to do it. Want to force your religion down our throats? Forget it it, buddy. Who really believes in freedom? Conservatives? I think not.

jafs 8 years, 2 months ago

According to the election results, it seems to me the country is more likely split about 1/2-1/2 between conservatives and liberals.

Justice Stevens was appointed by Gerald Ford and was a lifelong Republican who is reputed to have said that he didn't change, the Republican party did.

What the founders meant at the time of the writing of the Constitution is of course very important, but it also falls to us today to apply the concepts of their time to many situations which did not exist then, not an easy task.

bruno2 8 years, 2 months ago

Wingnuts: "The President, the President! The Constitution, the Constitution!" Oops, the record's stuck, oops, the record's stuck, oops, the record's stuck...

Commenting has been disabled for this item.