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Good Riddance By: FrontPage Magazine
FrontPageMagazine.com | Friday, May 01, 2009

The news that Supreme Court Justice David Souter plans to retire later this year will come as bittersweet to his conservative critics. On the bright side, Souter’s exit will finally expunge the blunder that President George H. W. Bush made when, promising a conservative “home run,” he whiffed mightily and named the reliably liberal Souter to the country’s highest court. At the same time, Souter’s vacated seat will become an opportunity for the Obama administration to fortify the court’s liberal block with another judicial activist.

 That Souter would become a doctrinaire liberal was not yet certain when he was nominated in 1990 to replace the outgoing Justice William Brennan, the court’s leading liberal for more than three decades. Indeed, Souter was then seen as a peace offering to the Republican base from President Bush, as he sought to make amends for breaking his famous 1988 campaign pledge not to raise taxes.

 Souter’s cause was championed most energetically by Bush’s chief of staff, former New Hampshire Governor John Sununu, who was eager to see the little-known appointee to the First Circuit Court of Appeals in the New Hampshire Supreme Court ascend to the august bench. Although Souter had no established record on any number of controversial judicial issues, Sununu assured conservatives that they would be pleased with his appointment. As Sununu told the New York Times, “I was looking for someone who would be a strict constructionist, consistent with basic conservative attitudes, and that’s what I got.”

 Except that it wasn’t. Belying the hype that he was a “strict constructionist,” Souter quickly broke with Justice Antonin Scalia over the latter’s originalist interpretation of the Constitution, insisting that the Court had to go beyond the limits set forth by the Framers. To that end, Souter insisted that the 10th Amendment, which provides states with certain rights not granted to the federal government, “is something that we can’t look through the eyes of the people who wrote it,” a ruling that shocked supporters of states’ rights. To add insult to injury, Souter hailed his predecessor Justice Brennan – an unapologetic judicial activist whose habit of interpreting the Constitution according to his political whims led him to declare capital punishment unconstitutional – “as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have.” By now it was clear: David Souter was no conservative.

Further betrayals followed. If conservatives ever held out hope that Souter could be an ally against affirmative action policies, that hope has long since been dispelled. In the 2003 case of Gratz v. Bollinger, for instance, Souter voted with the liberal majority to uphold affirmative action at the University of Michigan Law School. Not only that, but Souter praised the school for being so upfront in its discriminatory admissions policies. Referring to the fact that the university explicitly assigned extra points to minority applicants in order to achieve “diversity,” Souter wrote that he was “tempted to give Michigan an extra point of its own for its frankness.”

Most recently, Souter has underscored President Bush’s original sin in 1990 with his votes in the War on Terror. In 2006, he voted with the liberal majority in the case of Hamdan v. Rumsfeld to block the use of military commissions to try al-Qaeda and other terrorist detainees at Guantanamo Bay. In a stinging dissent, Justice Clarence Thomas wrote that the majority’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.”

In view of this history, it’s no wonder that conservatives remain relentlessly wary of judicial unknowns, wondering if they will mark their confirmation to the Supreme Court with a hard swerve to the Left. If Justice Souter’s career demonstrates anything, it is that this fear is all-too justified.

However, concerns of judicial activism by stealth may be less relevant when it comes to Souter’s successor. President Obama has made no secret of his desire to nominate a candidate whose chief virtue will be representing the Democratic Party’s fealty to identity politics. As Obama told a Planned Parenthood conference in 2007, We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.”

So much for quaint notions like a demonstrated record of judicial accomplishment or the intention to uphold the Constitution. In short, the next Supreme Court Justice may not be an unknown quantity like Souter. But much like Souter’s disappointing two decades on the bench, that is nothing to celebrate.

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