Wouldn’t it be nice (as the Beach Boys sang in a completely different context) if once, just once, a liberal Democrat president nominated to the Supreme Court someone he believed reflected his views of the Constitution only to see that justice swing to the right after he was confirmed? That hasn’t happened since John F. Kennedy named Byron “Whizzer” White to the court and White cast one of two dissenting votes in the infamous Roe v. Wade abortion case in 1973. Every judge named by a Democratic president since then has been reliably liberal.
Republican presidents have had less success in naming reliably conservative jurists to the court. Dwight Eisenhower would come to regard Earl Warren as the “biggest damned-fool mistake I ever made.” Gerald Ford, a moderate Republican, nominated now-retiring John Paul Stevens, who held a liberal view of constitutional language. The sainted (for conservatives) Ronald Reagan gave the country Sandra Day O’Connor and Anthony Kennedy. O’Connor was the swing vote on cases that might have rolled back Roe, which came to stand for abortion on demand, but she declined to do so. Same with Kennedy, who became more concerned with precedent rather than a case wrongly decided.
George H.W. Bush nominated David Souter after being assured by his chief of staff and Souter’s fellow New Hampshireman, John Sununu, that he was reliably conservative. Souter turned out to be as liberal on many important issues as Justice Stevens.
The problem for more than half a century has been whether members of the Supreme Court see themselves as faithful interpreters of what the Founders intended, or judicial freelancers with the power to create law, claiming it was what the Founders intended, or worse, believing that it doesn’t matter what the Founders intended, which is where liberal judges have brought us. Too many modern jurists behave like constitutional gods, handing down commandments as if from Mt. Sinai.
President Obama shares this liberal view of the Constitution, so it is unlikely he will name a moderate, much less a conservative, to the court. In his book “The Audacity of Hope,” Obama devotes an entire chapter to his view of the Constitution. To him its language is not fixed, but fluid and thus open to subjective interpretation by presidents and judges. Obama thinks free speech, to take one example, requires a different interpretation in the Internet age than it did in the 18th century, and besides, he writes, the Founders profoundly disagreed on many issues. Yes, but they agreed on the language of the Constitution.
A New York Times editorial said Justice Stevens had a reputation for being on the side of “fairness and justice.” The left reserves the right to interpret such notions. The Constitution ought not be open to individual interpretation. The Framers meant what they wrote. Their words have served the country well, at least until the reinterpreters began defining the words according to their political biases.
Liberals view the Constitution as an impediment to their political and social agenda. Like water running downhill, liberal jurists will go around, over, under or through any obstruction that impedes them from imposing their worldview from the bench, and without the approval of the Constitution or the electorate.
Whoever Obama nominates, at least two things are guaranteed. First, the person will be a liberal in the tradition of John Paul Stevens and Chief Justice Charles Evans Hughes (1862-1948), who famously said, “The Constitution is what the judges say it is.” Second, no matter how far left the person is, you won’t hear the big media say the nominee is “out of the mainstream” as when a Republican president nominates a conservative to the court.
By some estimates, this is a 70-30 center-right nation. How, then, is a far-left liberal nominee considered mainstream and a moderate-to-conservative one not mainstream?
There is always the outside chance an Obama nominee will convert to judicial restraint, but that is as likely to happen as a tax cut from this president.
Cal Thomas is a syndicated columnist and author.