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Swing Set By: Gregory Gethard
FrontPageMagazine.com | Thursday, May 07, 2009

It was only a few weeks ago when there were murmurs that the Justice Department, under the watch of Attorney General Eric Holder, might go on a witch hunt, prosecuting Bush-era officials for their role in giving advice on policies related to ”torture.”

While recent stories indicate that there will be no prosecutions, there’s always a chance that in a political climate this feisty an indictment or two might be handed out to someone who worked in the previous administration.

If that does indeed happen, it’s not so far out of reach to think that this question – if a new president deem old policies illegal and then prosecute members of the previous administration – would ultimately end up before the Supreme Court.

If this scenario unfolds, conservatives might wish for something they never thought they would. And that’s for David Souter to have never left the bench.

 The headlines in the mainstream media indicate that Souter’s retirement will have no merit on the make-up of the Supreme Court. To wit:

    “Departure is unlikely to change the court's conservative-liberal split” – MSNBC.com
    “Change unlikely with exit of Justice David Souter” – NewsOK.com
    “Souter retirement unlikely to change ideological makeup of court” – Wichita Eagle
    “With Supreme Court's balance unlikely to shift, GOP resistance to Obama's pick may be muted” – LA Times
Many pundits in the blogosphere also agree with this viewpoint. According to Rob from the Say Anything blog:
    My feeling is that this isn’t really going to make a difference at all.
    Justice Souter has been one of the most reliably liberal votes on the Supreme Court over the latter part of his career on the high court.  He was appointed by George H.W. Bush, with a guarantee (made by John Sununu) that he would be a “home run” for conservatism.  But in 1992 the New York Times described Souter as having “put himself in the camp of jurists who view the Constitution as a flexible set of principles that can evolve.”  He has reliably voted with Carter appointee John Paul Stevens over the last decade, so Souter leaving the court is no loss for those who would like the Constitution ruled on as it is written, and not as it is (conveniently, usually) interpreted at the moment by judges more concerned about the outcome of a case than the law.
    Obama is likely to appoint someone who is close to Souter in his/her approach to Constitutional law.  This appointee may be further to the left ideologically than Souter, but at most the difference is going to be marginal.
In other words, conventional wisdom is dictating that this decision is no big deal. After all, one liberal justice will just be replaced with another, and the tilt of the Court will remain as it currently is.

But, as in most cases, conventional wisdom is wrong.

In 1986, Michigan resident Ronald Harmelin was arrested for possessing 672 grams of cocaine. Years earlier, Michigan legislators enacted a mandatory sentencing law that said that anyone found guilty of possessing more than 650 grams of cocaine faced a mandatory sentence of life in prison.

Harmelin, a first-time offender, appealed his decision, claiming that it violated the 8th amendment’s “cruel and unusual punishment” dictate. The case eventually went before the Supreme Court in 1991, just months after Souter’s appointment. The court ruled in favor of Michigan by a 5-3 margin, with one abstention.

Souter was one of the five.

While Souter’s liberal reputation is well-justified, he has at times shown himself at times to be an important swing vote. In a must-read article, the Heritage Foundation’s Robert Alt writes at length about Souter’s less reported conservative leanings. Some examples Alt cites:
  • Souter wrote the opinion in a case in 2008 that limited punitive damages in a case involving the Exxon Valdez. While the case only extends under maritime law, it could potentially be used in similar cases.
  • Was the deciding vote in Arizona v. Fulminante, which, according to Alt, ruled that appeals courts do not have to throw out every case involving involuntary confessions.
  • Held a position that it is Constitutional for a police officer to use his car to ram the car of a fleeing suspect.
Writes Alt:
    While Justice Souter disappointed conservatives who hoped for a justice who would adhere to originalism - that is, a justice who would apply the laws and Constitution according to their plain and original meaning rather than according to policy preferences or the elite opinion of the day - he nonetheless eschewed the excesses of judicial activism in favor of the demands of rule of law in numerous cases touching issues like lawsuit abuse and criminal law.
In the cases Alt states, it’s awfully hard to think that a more left-leaning jurist would vote the same way Souter did.

And, it’s also awfully hard to think that President Barack Obama is going to nominate a judge that doesn’t have far-left credentials.

Obama, a former Constitutional Law professor, found himself in hot water during the presidential campaign for remarks made in 2001 on “Odyssey,” a Chicago-based NPR current affairs show. This was further proof, his critics argued, of Obama’s far-left political leanings.

Of course, Obama and his team successfully managed to distance the future president from his remarks, spinning it once again to make Obama look more moderate than his record and statements actually indicate.

Today, with a Supreme Court nomination on the line, Obama is once again casting himself in a moderate light. During a press conference made after Souter’s resignation, he said:
    Now, the process of selecting someone to replace Justice (David) Souter is among my most serious responsibilities as president, so I will seek somebody with a sharp and independent mind and a record of excellence and integrity.
But Obama tipped his hand later on in his speech, saying:
    I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
This, Alt says, is essentially code for “activist judge.”
    These words suggest a drastic change in the courts - one in which lady justice is stripped of her blindfold in order to choose winners and losers not based on what the law requires, but based on how she feels about the parties before her. This is a recipe not for a center-left jurist, but for a far-left judge ready to do the bidding of hard line liberal, not just on social issues like gay marriage, but on issues of crime and punishment and trial abuse.
If Souter’s replacement is indeed that far to the left, it could have ramifications for generations to come. While no name has emerged yet, several names have been rumored as possibilities. ABC News has come up with a list of potential candidates, none of whom are older than 58.

In other words, a liberal judge who has at least a small history of agreeing with the conservative stance on issues might be replaces with a judge who only agrees with a liberal stance. And this person could have a seat on the Supreme Court for decades to pass.

It isn’t just Bush administration officials who have something to worry about. Our children do, too.


Gregory Gethard is a Philadelphia-based freelance writer.

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