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A Supreme Court Vacancy: What’s at Stake, What’s Required

Posted By Todd Gaziano On May 1, 2009 @ 11:36 am In Legal | Comments Disabled

Supreme Court Justice David Souter

The news that Justice David Souter will be resigning from the Supreme Court has left some conservatives momentarily confused. It should not. As much as Justice Souter disappointed those faithful to the Constitution, and those disappointments are legion, he was reasonable or even sound in several key areas (more will be forthcoming from my colleagues on that). Any Supreme Court appointment is momentous, but what is at stake now is a potential shift from a center-left justice to a far-left justice.

This is what all Americans have a right to expect of a qualified judicial nominee, especially for the High Court:

  • A Constitutionalist: Someone with proven fidelity to uphold the original meaning of the Constitution and laws as written.
  • An Umpire: Someone who adheres to Chief Justice John Roberts’s analogy of a baseball umpire. E.g., someone who doesn’t bend the rules for the game, but just calls them as he sees them; someone who offers no favoritism depending on who is at bat.
  • An Originalist: Someone who takes the original, public meaning of the text (Constitution and laws) seriously and does not look for excuses to depart from it and read into it what he or she wants.

And all Americans should expect the U.S. Senate to carefully explore and guard against unacceptable qualities:

  • An activist who interprets the Constitution and laws in light of her personal preferences or how she thinks they ought to have been written.
  • Someone who would elevate “empathy” over what the rule of law requires.
  • Someone who twists the law “for the little guy” because politicians and the press praise it. A fair judge should be neutral and rule the same way–according to the laws as written–regardless of who is before the court.

President Obama’s past statements provide reason for concern that he does not understand these fundamental principles or that he does not agree with the limited role that judges have under the Constitution.

In the coming months, Heritage will explain in detail why the role of judges is not to make new and supposedly “better” law according to their own personal, political and social beliefs–it is to apply the text as written. Americans want the representatives they elect to Congress, who are answerable to the people through our elective process, making the law, not unelected federal judges. And this is what our constitutional system requires.


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