Strict Construction Or Trendy Political Correctness?
By Randall Nunn (07/04/03)
Justice Sandra Day O’Connor has recently given us all a lesson in how important the selection of Supreme Court justices is to the country. Justice O’Connor, appointed by President Reagan, has generally been considered to be somewhat conservative and a justice who follows the Constitution rather than “creating” law where the Constitution is silent.
However, her decisions in the recent affirmative action cases from Michigan and the Texas sodomy law case show that her earlier decision in the death penalty case that forbid execution of those mentally retarded was no aberration. Apparently, as Justice O’Connor approaches retirement, she has become more liberal and more willing to set aside the principles of strict construction in favor of following the trendy thinking on social issues as espoused in the liberal media. Justice O’Connor’s recent decisions should be warning flags to President Bush.
Whether Justice O’Connor is changing her views on cultural issues or the role of Supreme Court justices when construing the Constitution is not clear. Possibly she is becoming sensitive to a different set of pressures as she ages—whether the desire to have a legacy that will be favorably commented on by the liberal faculties and students in today’s law schools or the desire to appease family and friends who would like her to be “with it” in her later years and not a representative of the forces of reaction. We may never know precisely why she has moved in a new direction but whatever the reason, it highlights the importance of selecting justices whose judicial philosophy is known and in synch with the philosophies of the president who appoints such justices. Some politicians and commentators would have us believe that a president should appoint justices who will “unite all Americans” (as Senator Daschle recently suggested). Nothing could be more wrong. A Supreme Court justice should come to the bench with some core principles that are known so that a president has some sense of that justice’s philosophy of government and view of the appropriate role of the judiciary in the context of that government. Otherwise, the president will be unable to steer a course with any sense of certainty as to the ultimate destination. Predictability and acceptance are of great importance in the law, particularly at the level of the U.S. Supreme Court. A president has every right to appoint justices whose judicial philosophy corresponds with the president’s governing philosophy and, indeed, would be ill-advised to do anything other than that.
The late U.S. Supreme Court Justice Joseph Story, one of the great writers on the U.S. Constitution, described the Constitution as the “deliberate will of the people” and said that when “it is constitutionally altered, then and not until then, are the judge’s at liberty to disregard its original injunctions.” However, activist liberal justices have for years treated the Constitution as a “living document” that changes with the times, based on those justices’ whims of the moment. In effect, such justices are altering or amending the Constitution when their decisions do not follow a strict construction approach. For example, the so-called “right of privacy” used to justify a number of decisions is nowhere to be found in the language of the Constitution. If such a right is not expressly set out in the Constitution, shouldn’t it be created by the legislature and not the courts?
President Bush’s task of appointing future Supreme Court justices will undoubtedly be made more difficult by the Democrats in the Senate and the liberal media, who will try to put the president on the defensive by arguing that he should not appoint conservative jurists who will be “divisive.” The president should nominate justices of his choice, as provided by the Constitution, and not justices who have been “nominated” by the Senate or the media. The Senate’s function is to “advise and consent”, not to select or to disapprove of a selection because of their disagreement with the president’s choice simply because of judicial philosophy as opposed to lack of qualifications. In the case of Supreme Court appointments, the harm that can be done by poor appointments will live long after a president is gone from office.
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