Souter's Replacement...Republican's Opportunity: My Contrarian View

If played right, the Republicans have plenty of opportunity coming when the hearings come for the replacement of Justice David Souter. Because Souter was himself fairly liberal, the court won't move much unless someone very radical is chosen. As such, no matter who is chosen presents Republicans with an opportunity.

The most obvious opportunity is if President Obama picks someone incompetent or with some sort of tax issue. The way to play that is so obvious that I won't even go into the strategy in such a situation. As such, let's focus on a judge that is qualified but with three possible ideologies: someone more moderate than Souter, someone about as liberal as Souter, and someone more liberal than Souter.

First, the Republicans have nearly no power to stop any nominee. As such, I believe that the hearings shouldn't be about the nominee at all. Rather, they should make it about President Obama's judicial philosophy which he articulate yesterday.

I will seek somebody with a sharp and independent mind, and a record of excellence and integrity,” he said. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Now, "empathy" is a code word, a reasonable sounding one, for the Supreme Court being used as a tool of Social Engineering. In fact, President Obama sees the Supreme Court as an extension of his overall goal to change America through income redistribution. He's said as much.



Here's the most important part of the interview.

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.

Now, a hearing for a Supreme Court Justice is the perfect platform to turn this from nice sounding euphimisms into the radical agenda that it is. This can be done through direct questions like "President Obama believes that the Supreme Court should venture into issues of redistribution of wealth and political and social justice. Is this something you agree with? How would you see it come about?" There are other direct questions like this one. "President Obama believes that empathy for the poor and downtrodden is an important quality for a Supreme Court Justice. Do you agree and can you give an example of a case in which empathy played a role in your decision making?"

This can also be done through a series of hypotheticals in which cases are created that pit the weak against the poor. If the nominee is sufficiently moderate, they would reject this philosophy entirely. As such, the Republicans would put the Democrats in the uncomfortable position of having the nominee thoroughly reject this philosophy.

Now, the likely scenario is that the nominee is as radical as President Obama himself on such issues. For instance, Justice Sonya Sotomayor once proclaimed that it "is important for a Justice to take experiences as women and people of color in their decisionmaking, should affect our decisions.” This is the sort of statement that can and should be explored in a hearing. Judge Sotomayor has a long record as a Justice on the 2nd Circuit. As such, her belief, like that of Obama's himself, that the court is a tool of "social justice" has a long paper trail.

For instance, just recently in the case of Ricci v. DeStefano she tried to dismiss a case against a group of white firefighters in a case involving issues of testing and institutional racism. The case would have been dismissed had her fellow judge, Jose Cabranes, not roundly criticized her.

In fact, all of this is bias. What both President Obama and Judge Sotomayor want is for the Supreme Court to be biased toward the weak and against the powerful. Rather than interpreting the law as is, they want the court to show bias for one group against another and figure out a way to make the law work to their advantage. It's time for a full debate between those that believe in the philosophy of strict constructionism and those, like the President, that believe the Constitution is a living breathing document.

It's also important that these hearings plant the seed that the Supreme Court is just one tool for the President's RADICAL agenda. He is determined to engage in wealth redistribution. He is also determined in controlling the economy through central planning. Because the President is such a good speaker and so charismatic, his radicalism is often masked. It's a lot less likely that someone like Judge Sotomayor will be nearly as charismatic. Her own radicalism won't be masked by good speechmaking. Put President Obama's judicial philosophy on trial and sow the seeds that his judicial philosophy is part of a larger radical agenda. That's what I would do if I were a Republican on the Senate Judiciary.