At the moment there is one opening on the United States Supreme Court. Although she was vilified by Democrats (and some Republicans) during her appointment hearings, Sandra Day O’Connor is now being touted by the left as a model for her replacement by President Bush. The stated reason is that she was “moderate”. Not true. In fact, Justice O’Connor was an activist judge who used the bench to create laws that have no grounding in the U.S. Constitution. At times she “sided” with the left and at times with the right. Her choice depended upon what she wanted to accomplish at the time. It is her activism that leads the left to support her clone as her replacement.
Clearly, this isn’t a new phenomenon...neither in the U.S. Supreme Court nor in state Supreme Courts. That is the problem.
The role of a judge is to hand down decisions based upon legislation and case law that are supposed to be derived from the very simple, straight-forward wording of the U.S. Constitution. The role of the U.S. Supreme Court is even more basic…to decide cases based upon that very simple, straight-forward wording. Activist judges at all levels go beyond their role and create “law”. This is serious at all levels but most so at the federal level. For example, nowhere in the U.S. Constitution does it say anything about abortion, yet, in effect; the U.S. Supreme Court (i.e., Roe v. Wade) created a “law” providing for a “right” to abortion. (O’Connor voted against Roe but voted for two later cases that cemented it as “law”). Nowhere in the U.S. Constitution does it prohibit a religious symbol from being displayed in public buildings but the U.S. Supreme Court has created another “law” that may provide for such prohibition.
The Constitution does not grant rights. It clearly delineates the few powers granted to the federal government. More importantly, it protects citizens from acts that the federal government might carry out in an attempt to overstep its powers to take away individual rights that are innate. Activist judges use their position to redefine the role of the Constitution in order to create “laws” that cannot be created through legislation.
So, it makes sense that Democrats want an O’Connor clone to replace her. She appears “moderate” to those who have a casual interest in the court, yet she is an activist. More than half the time she will side with them. This is better than the alternative of a conservative who will never side with them. They can look “moderate” and reasonable in the process. But it is a trap to be avoided by the right.
It is up to President Bush (or any U.S. President who is in the position of appointing judges) to appoint a person who is qualified and who will decide cases based upon the Constitution. It is not about appointing a liberal, moderate, or conservative. It is about appointing a strict constructionist and not an activist.
It is up to us to support the process by encouraging the President to nominate a constructionist as the next Supreme Court Justice. The future of
