Robert Meyer
Replacing O'Connor with Justice
By Robert Meyer
President Bush has been handed a unique opportunity, and has been given a chance to fulfill a vital campaign promise at the time.
With the retirement of Sandra Day O'Connor from the Supreme Court, Bush has the chance to nominate a new Justice who will seek to interpret the Constitution according to the original intent of the founders, rather than according to some arbitrary and subjective standard. "Original Intent" has been a standard sorely missing from constitutional jurisprudence in recent decades. Yet it is the template of constitutional exegesis that the Founders themselves declared to be the only method by which the true Constitution is revealed. In his time Thomas Jefferson issued a stern reminder to Justice William Johnson: "on every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
The president's selection here is one of the biggest tests of his tenure. Previous administrations with Republican Presidents have failed miserably, nominating judges who later turn out to be activists for personal ideology rather than performing their duty to interpret the Constitution in accordance with separation of powers. John Paul Stevens was a nominee of the Nixon administration, but Stevens is the godfather and elder statesman of the liberal wing of the Supreme Court.
Reagan appointed O'Connor while assuring concerned parties that she was indeed a solid conservative, who would be "okay" regarding the abortion issue. Clint Eastwood's "Dirty Harry" character, would likely have remarked that we pay a high price for being "stylish." Indeed we did, as O'Connor anchored herself in the abortion rights camp as it pertained to adjudication. Often she was the swing vote that went in favor of the liberals.
After the disgusting character smearing against one of the most highly qualified legal minds of our time, Judge Robert Bork, we saw a more "moderate" nominee in Anthony Kennedy. But how often is this term "moderate," just code for the political equivalent of "Rhino" — one that is merely conservative in a nominal way. Kennedy has had a litany of liberal decisions that have put traditional constitutional jurisprudence on its head. Look at how his swing vote in the Lawrence v. Texas decision undermined what the Supreme Court had hewed out in Bowers v. Hardwick in 1986. His decisions in Ten Commandments cases have expanded the convolution and confusion of applying the Court's pathetic "Lemon Test." Neither Kennedy nor O'Connor have had any problem with consulting foreign sources to guide their decision making. Excuse me, is this the U.S. Constitution or a foreign charter?
Adding insult to already injurious judicial appointments, the administration of Bush Sr. gave us another pretender in David Souter. Thought to be fairly conservative, Justice Souter has been one of the four reliable blocks of granite in the liberal sector of the Supreme Court.
Considering all this, the 1971 rock music classic, "We won't get fooled again" comes to mind. As of this writing, it appears that Chief Justice Rehnquist will also be stepping down soon, so Bush may have two picks to make. Who knows if this will open the floodgates for even more resignations, such as Stevens, whose tenure has been the most lengthy. Replacing Rehnquist with another conservative would not change the composition of the Court, but replacing O'Connor with an "originalist" would do so.
At this point I wonder if many conservatives out there are wringing their hands, wondering if the president will have the fortitude to follow through — even more, if the conservatives in congress have the mettle and resolve to back the president's choice through this arduous process. It is imperative in order for this country to return toward a constitutional representative republic.
Courts must stick to their function, not be tempted into acting as legislatures or philosopher-kings. Courts are comprised of individuals.
© Robert Meyer
President Bush has been handed a unique opportunity, and has been given a chance to fulfill a vital campaign promise at the time.
With the retirement of Sandra Day O'Connor from the Supreme Court, Bush has the chance to nominate a new Justice who will seek to interpret the Constitution according to the original intent of the founders, rather than according to some arbitrary and subjective standard. "Original Intent" has been a standard sorely missing from constitutional jurisprudence in recent decades. Yet it is the template of constitutional exegesis that the Founders themselves declared to be the only method by which the true Constitution is revealed. In his time Thomas Jefferson issued a stern reminder to Justice William Johnson: "on every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
The president's selection here is one of the biggest tests of his tenure. Previous administrations with Republican Presidents have failed miserably, nominating judges who later turn out to be activists for personal ideology rather than performing their duty to interpret the Constitution in accordance with separation of powers. John Paul Stevens was a nominee of the Nixon administration, but Stevens is the godfather and elder statesman of the liberal wing of the Supreme Court.
Reagan appointed O'Connor while assuring concerned parties that she was indeed a solid conservative, who would be "okay" regarding the abortion issue. Clint Eastwood's "Dirty Harry" character, would likely have remarked that we pay a high price for being "stylish." Indeed we did, as O'Connor anchored herself in the abortion rights camp as it pertained to adjudication. Often she was the swing vote that went in favor of the liberals.
After the disgusting character smearing against one of the most highly qualified legal minds of our time, Judge Robert Bork, we saw a more "moderate" nominee in Anthony Kennedy. But how often is this term "moderate," just code for the political equivalent of "Rhino" — one that is merely conservative in a nominal way. Kennedy has had a litany of liberal decisions that have put traditional constitutional jurisprudence on its head. Look at how his swing vote in the Lawrence v. Texas decision undermined what the Supreme Court had hewed out in Bowers v. Hardwick in 1986. His decisions in Ten Commandments cases have expanded the convolution and confusion of applying the Court's pathetic "Lemon Test." Neither Kennedy nor O'Connor have had any problem with consulting foreign sources to guide their decision making. Excuse me, is this the U.S. Constitution or a foreign charter?
Adding insult to already injurious judicial appointments, the administration of Bush Sr. gave us another pretender in David Souter. Thought to be fairly conservative, Justice Souter has been one of the four reliable blocks of granite in the liberal sector of the Supreme Court.
Considering all this, the 1971 rock music classic, "We won't get fooled again" comes to mind. As of this writing, it appears that Chief Justice Rehnquist will also be stepping down soon, so Bush may have two picks to make. Who knows if this will open the floodgates for even more resignations, such as Stevens, whose tenure has been the most lengthy. Replacing Rehnquist with another conservative would not change the composition of the Court, but replacing O'Connor with an "originalist" would do so.
At this point I wonder if many conservatives out there are wringing their hands, wondering if the president will have the fortitude to follow through — even more, if the conservatives in congress have the mettle and resolve to back the president's choice through this arduous process. It is imperative in order for this country to return toward a constitutional representative republic.
Courts must stick to their function, not be tempted into acting as legislatures or philosopher-kings. Courts are comprised of individuals.
© Robert Meyer
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
