Replacing the Replaceable: the Fallout from the Souter Retirement

Of course, given the high stakes game that is today’s Supreme Court confirmation process, the million dollar question is who President Obama will appoint as Justice Souter’s successor.

It would be appropriate for the president to nominate a “stealth-conservative” in tribute to Souter’s rapid and radical lurch to the left once he was confirmed to the Court. We’re at least a couple of justices behind on that front.

However, given the president’s missive before a crowd of Planned Parenthood radicals during the campaign season, don’t hold out hope for stealth Scalia. The president said, “We need somebody who’s got the heart, the empathy, to recognized 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 criterion by which I’m going to be selecting my judges.”

So in other words, someone who has little respect for the rule of law or the Constitution of the United States.

Speculation is rampant that President Obama will either nominate a woman or a Hispanic (or both). Several possible nominees include:

Elena Kagan, Solicitor General. Recently the dean of Harvard Law School, Kagan is the country’s first female Solicitor General. She served in the Clinton White House and was previously nominated for the DC Circuit, but ran out of time at the end of President Clinton’s 2nd term.

Judge Sonia Sotomayor, US Court of Appeals for the 2nd Circuit. Appointed to her first judgeship by the same president who appointed Justice Souter to the Supreme Court, Sotomayor is praised as a moderate who might have bipartisan appeal (so take that Bush I correlation seriously).

Judge Diane Wood, US Court of Appeals for the 7th Circuit. Judge Wood taught at the University of Chicago Law School at the same time President Obama was a lecturer there.

Other names are thrown about, including Interior Secretary Ken Salazar and Cass Sunstein, now in the Obama Administration, but most speculation has surrounded the above three candidates.

Whoever is confirmed to the seat is virtually guaranteed to shape the direction of the Court over the next several decades, as the average tenure of a justice is 26 years these days. While replacing the liberal Souter with another liberal won’t upset the balance of power on the court in the short term, had Souter’s resignation occurred 12 months ago, we would perhaps be looking at a solid 5 vote conservative block with the inconsistent Justice Kennedy as the occasional 6th. Should one of the conservatives or Justice Kennedy retire while Obama is still in office, this nomination could help radically shift the Court’s jurisprudence further to the left.

What remains to be seen, however, is how much political capital the president is willing to spend on a Supreme Court confirmation. Part of the reason Souter was nominated is that President Bush didn’t want to endure a long and contentious confirmation fight (as had occurred with Robert Bork under President Reagan’s tenure and as would later occur with Bush’s second nomination, the venerable Justice Thomas).

While the Democrats have a solid 59-seat majority in the Senate, judicial nominations are still critical in the minds of many Americans, and the majority party may not want to face a public in 2010 angered over a radical leftist nomination to the Supreme Court. Further, given that President Obama wants to drastically change health care, energy policy, education policy, and our free market economic system, he and his allies may not have the political stomach for a nasty confirmation fight. Let’s hope not. The Supreme Court has done enough damage already.

Breaking News: Justice David Souter to Retire

According to Nina Totenberg at NPR, Justice David Souter will retire at the end of the current court term.


The news of Justice Souter’s impending retirement is confirmed by Fox News and MSNBC. With the failure of Souter to hire clerks for next year, speculation as to his retirement was rampant for weeks.

Justice Souter, appointed by President George H.W. Bush in 1990, was initially supported by hopeful conservatives—who, along with unborn children, property rights enthusiasts, free speech advocates, federalists, and religious freedom benefactors, were soon greatly disappointed with his performance on the Court.

Justice Souter, whose views were relatively unclear up to the completion his first several terms on the Court, wrote his senior college thesis on the legal positivism of Justice Oliver Wendell Holmes, no defender of the constitutional text or originalism himself.

Among Souter’s most notable—notorious?—votes were against the principle of strong property rights in Kelo v. City of New London; against America’s long-standing religious traditions in Lee v. Weisman and McCreary; in favor of virtually unlimited Commerce power of Congress in U.S. v. Lopez; in favor of racial discrimination in Adarand Constructors v. Pena; against equal access for faith groups in Rosenberger (a case in which he disparagingly cited an article written by a mentor of mine); against school choice in Zelmon v. Simmons Harris; against free speech in the political speech context in McConnell v. FEC; and in defense of the barbaric practice of partial birth abortion in Stenberg v. Carhart.

Of course, the most notable early example of what to expect from Souter sprang forth from Souter’s troika opinion in Casey—a decision in which the Court was poised to bring light to a dark period in American history by overturning Roe v. Wade, but instead moved the constitutional “grounding” of Roe from emanations and penumbras to the Due Process Clause of the 14th Amendment.

So, Justice Souter will not be missed by those of us who favor life, free speech, and individual liberty.

Specter’s a Democrat. Like, Duh.

Earlier today, “Democrat” Senator Arlen Specter decided to remove the quotes and came out of the closet as an official member of the Democratic Party.

Three things of import here.

First, the Republican Party purges itself of another RINO. This is good. Sure, it’s one less “R” in the Senate, but Republicans simply cannot progress as a party with RINOs like Specter weighing them down. Ultimately, Specter’s move will do a great deal more good than bad for Republicans.

Second, Democrats now possess a filibuster-proof majority in the Senate. This means they are limited only by public opinion. Essentially, there is no longer a balance of power between the parties. Look for card check, the FOCA, tax hikes, and other liberal fantasies to pass through Congress unscathed. Yikes.

Third, attention turns to Minnesota. You thought Franken was safe in the Senate? Not quite yet. The controversy that was the MN Senate election is still alive and well in the MN courts. Just as in Bush v. Gore, the fundamental issue in Coleman v. Franken (or whatever you want to call it) is whether all the votes received equal weight. The truth is they didn’t. The MN election commission made the critical error of (1) creating new standards for counting ballots in the midst of the recount and (2) failing to apply those new standards to ballots already recounted.

I think the Republicans were willing to sacrifice MN to the Democrats so long as the Democrats were unable to attain a filibuster-proof majority. Granted, that strategy was purely defensive, but it bought Republicans time until the 2010 Senate elections.

Now that Specter has jumped shipped and empowered the Democrats, the Republicans might just want to start rethinking that strategy.

Quick Show of Hands, Who Didn’t See This Coming?

The wilderness just got a little more woolly my friends…

I’ve got this sickening sense of deja vu, only it’s worse this time. Am I the only one who thinks there needs to be a Constitutional amendment to put a stop to this?

You don’t have to be able to read the stitches on the fastball to see why he’s jumping ship. Unlike some other states, if you lose a primary in PA, you’re done.

I don’t buy his “purifying” excuse for a second, for obvious reasons. As Michael Steele pointed out, the RNC went to the mat for Specter last cycle, and this is how he repays them? He’s not a “moderate.” Like so many others who claim that brand, he’s just an opportunist grasping for power.

That said, purge em’ all? As much as it pains me, I have to disagree with Rush and Senator DeMint (although this is a disgrace).

The problem is not that politicians like Specter are in the Republican party. To a certain extent, there will always be areas where milquetoast is as good as it gets. Even Specter is better than almost any Democrat, if only for the fact that his “R” counts in our number when determining who controls Congress. The problem is that the conservative plurality within the Republican party lets people like Specter wield any power. I’m all for the “big tent,” as long as we’ve got a firm hold on the center stake.

So yes, lets be angry about this betrayal. And let’s use that anger to motivate ourselves to never let another “moderate” win a primary in a race where a real conservative has a fighting chance.

And as for 2010,keep your powder dry Pennsylvanians…

Federalism Amendment

Randy Barnett, professor of law at Georgetown, has an interesting piece in the Wall Street Journal today. A Federalism Amendment, spurred by threat of constitutional convention by the States, would rightly restore the balance of power between the States and the federal government, he argues.

The most important proposal to reel in federal power, he says, would be a repeal of the 16th Amendment, which permitted the imposition of a federal income tax–a tax which has spurred virtually unlimited federal intervention into every area of society.

His other ideas include:

A provision allowing for Congressional intervention into activity between states, rendering continued distortion of the Commerce Clause fruitless;

The clarification of the Commerce Clause by expressly prohibiting Congressional interference into intrastate actions, thus allowing States to once again become laboratories for innovation;

An explicit limitation of the Taxing and Spending Clause to powers otherwise enumerated in the Constitution as being possessed by Congress; and

A clear and unambiguous statement of originalism as the proper means for constitutional interpretation.

Barnett’s proposal is likely a pipe dream, but given the success and efficacy of the tea parties and passage of (relatively meaningless) resolutions reaffirming the 10th Amendment in 20+ states, there is a new-found substantial groundswell of support for federalism that could produce some measure of meaningful results.

Extending the President’s Influence: The Importance of Federal Judicial Nominations

The President of the United States is in a unique position to profoundly influence the nation’s debates over key social and political issues for decades after he leaves office. He can do this because he maintains the authority to appoint judges to the nation’s federal courts including the U.S. Supreme Court.

Although these nominees – including those for federal district courts and for highly-influential federal circuit courts — must be approved by the Senate, the President bears the responsibility to nominate men and women he believes are qualified for these important positions. More often than not, he also seeks to nominate individuals that share his political and social views as well as his judicial philosophy.

The decisions of these judges impact not only the parties involved in a particular case, but also the entire judicial system and even society at large. At the appellate level, judges’ decisions become the precedent in the particular circuit where they are decided and provide persuasive authority for other federal and state courts. Moreover, in the Supreme Court, the Justices’ decisions set an enduring precedent – one that is not often subsequently reversed or even revisited.

The President, therefore, possesses the distinctive power to impact various legal, political, and policy debates and determinations through his judicial appointments. Because federal judges are tenured for life, the President can leave a lasting impact on the United States and its laws long after his presidency has ended. Consequently, it is critical to be informed about the President’s motivation and ideology and understand the types of individuals he will likely appoint and the impact they will have.

At this critical juncture in our nation’s history, it is particularly important that Americans are prepared to articulately discuss and courageously challenge any appointee whose record reveals a failure to uphold the deepest values on which this nation was established—the equal right to life, liberty, and the pursuit of happiness of all human beings.

Several current Justices on the U.S. Supreme Court are past or nearing retirement age, and quite possibly have been waiting for a Democrat President so they can “safely” announce their retirements. Additionally, Justice Ruth Bader Ginsburg is currently being treated for pancreatic cancer. Thus, it is extremely likely that there will be a vacancy on the Supreme Court in the near future and that President Obama could even appoint at least one Justice as early as this summer.

Looking at President Obama’s public statements and record thus far, it is evident that he will most likely appoint activist Justices who interpret the Constitution broadly and read their own views into the law rather than simply applying the law. This could include reading the spirit and intent of the Freedom of Choice Act – radical federal legislation that seeks to impose unregulated, unrestricted, and taxpayer-funded abortion-on-demand on the nation and to overturn more than 500 protective state and federal laws related to abortion – into the Constitution (which, as drafted, is silent on abortion).

During his campaign, President Obama stated that he finds himself compelled “to side with Justice Breyer’s view of the Constitution –that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”[1] A Justice’s view on how to interpret the Constitution is paramount. The differing treatment of partial-birth abortion bans by the Rehnquist and Roberts courts, for example, reveals the importance of the Justices’ interpretative approach to the Constitution.[2] A Court controlled by Justices who embrace the idea of a “living Constitution” frequently find constitutional barriers to the political outcomes they dislike, while they ignore the constitutional texts that conflict with the government actions of which they approve. While perhaps not always free from error, those Justices who embrace the textualist approach at least demonstrate a greater willingness to return difficult questions that the Constitution does not specifically address to the democratic process.

It is widely expected that President Obama will appoint U.S. Supreme Court Justices who support unfettered abortion rights and who would interpret that “right” in an increasingly unrestrained and radical manner. During his campaign, President Obama publicly stated that he would appoint candidates in the mold of Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter, three of the Court’s most avid pro-abortion Justices who, for example, voted to strike down the federal ban on partial-birth abortion.[3]

Additionally, Americans should not limit their caution and attentiveness to President Obama’s potential Supreme Court nominees, but should also remain alert regarding who he nominates to the federal district and circuit courts. Activist judges in these positions, who value their own interpretations of the law over justice and human dignity, remain equally as dangerous as those Justices appointed to the U.S. Supreme Court because decisions in the lower federal courts can have more significant and lasting impacts. Cases appealed to the federal circuit courts seldom reach the U.S. Supreme Court, so these lower courts frequently have the final word on crucial issues.

Currently, there are 15 vacancies in the federal circuit courts — 12 geographically-based federal courts of appeal. Their decisions cover, among other matters, abortion, civil rights, searches and seizures, age and gender discrimination, gay rights, review of federal regulations and terrorism, religious liberty, capital punishment, and corporate wrongdoing. Many Americans are rightly concerned about the types of nominees President Obama will appoint to these courts, especially in light of the radically pro-abortion candidates he has already nominated to important positions in his Administration.

Further, President Obama has recently made several controversial nominations to three federal circuit courts. These nominations reveal not only a shift in the federal judiciary toward Democrat control, but also a radical disregard for the principles on which this country was founded.

On March 17, Obama nominated Judge David Hamilton, a federal district court judge in Indiana with an extensive pro-abortion and anti-religious freedom record, to the 7th Circuit Hamilton – President Obama’s first judicial nominee — is the former Vice President for Litigation and a board member of the Indiana branch of the American Civil Liberties Union (ACLU) and a former fundraiser for the Association for Community Organizations for Reform Now (ACORN). Hamilton was first appointed to the federal bench by President Bill Clinton in 1994, even though the American Bar Association (ABA) had given him a “not qualified” rating.

As a federal judge, Hamilton issued multiple rulings over seven years to prevent Indiana’s informed consent law—a law that fully complied with the U.S. Supreme Court’s requirements for such laws (as set out in the 1992 Planned Parenthood v. Casey decision)—from going into effect. The 7th Circuit—the same court to which President Obama has nominated Hamilton—later reversed his decision, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”[4] Hamilton ruled in another decision that the Indiana House violated the Constitution by opening its session with prayers mainly representing the Christian tradition. He stated in his decision that “they should refrain from using Christ’s name or title,” and held that sectarian prayer at the opening of the legislatives session should be banned.[5]

Earlier this month, President Obama nominated Judge Gerard Lynch to the 2nd Circuit and Judge Andre Davis to the 4th Circuit. Judge Lynch was a former cooperating attorney for the ACLU and Judge Davis has a reputation for handing down rulings favoring criminal defendants. Additionally, in two cases where African-American restaurant patrons claimed they were subjected to hostile treatment, Davis instituted a framework for evaluating such claims. While this framework was subsequently adopted by several other federal district courts, the 4th Circuit declined to do so. Davis’ presence on the 4th Circuit could strongly influence that court on civil rights issues, in addition to bringing a more activist approach to interpreting the law.

Clearly, Americans have reason to be concerned about President Obama’s early judicial nominations as they appear to indicate that he will appoint judicial activists with radical views on critical issues such as abortion, religious freedom, and civil rights for all Americans.

Without question, the judicial appointment process must focus on the candidate’s ability and qualifications, as well as his or her willingness to adhere to the proper role of a judge, namely, to interpret the law and properly apply it. The only litmus test the President should be applying is that judicial nominees have significant experience in the federal judiciary and recognize the extent of their authority. This would include an acknowledgment that the judiciary is not a means to affect policy, reconstruct laws, or express political viewpoints. As Americans, we should insist that the President hold each potential judicial candidate to this standard so that, when the President’s time in office concludes, the lasting effects of his presidency benefit the entire country.


Introduction: Kellie Fiedorek

Ex Deserto is pleased to announce our 2nd new addition in less than a week, Kellie Fiedorek.

Kellie is a soon-to-be graduate from Ave Maria School of Law, and Ex Deserto is honored–and proud–to have Kellie on the team. We eagerly look forward to her participation. Kellie’s bio is below and will be permanently posted along with the other authors’ at the bottom of this page.

Welcome, Kellie!

Kellie Fiedorek graduated from the University of Dallas in 2006 and will graduate from Ave Maria School of Law this May. Last summer, she received the Blackstone Legal Fellowship in conjunction with the Alliance Defense Fund (Scottsdale, AZ) and worked for CareNet in Lansdowne, VA. She has worked as a legal extern for Americans United for Life since August. She is the Special Events Chair on the Moot Court Board and is a member of Lex Vitae. Kellie will take the Florida Bar Exam this July.

God Love Her

The more I read, and the more I see . . .

World Net Daily

. . . the more I fall head over heels in love with Miss California, Carrie Prejean.

What’s so tragic, though, is that so many people are so unconditionally supportive of the utter disgust that is Perez Hilton (think Duessa exposed).

How irrelevant celebrity society has become — how out of touch Hollywood culture is with the rest of us — that it would applaud a man who calls a sweet little girl a “b—-” and a “c—” simply because she had the courage to cut against the politically correct grain of the fashion world.

A beauty queen, and God love her.

This Week’s Leading Ladies

Though I am generally not a follower of pop “culture” (not having a television makes it rather easy to avoid), I found two stories rather interesting this week.

The phenomenon of Susan Boyle, a 47-year old, unmarried, unemployed, devout Catholic from an unknown Scottish village seemed to miss the point. Can she sing? Of course. But what if she couldn’t?
The three judges on the panel seem to have had this revelatory moment where they saw that the “true worth” of a person is not in her outward appearance, but in something else. The problem lies in them finding that the “something else” is her ability to sing well. If Susan Boyle couldn’t sing, her worth as a human being would be unchanged. If she was attractive, her worth as a human being would be unchanged.
As millions of Americans and others around the world pat themselves on the back for recognizing Susan Boyle as a person, they are in reality recognizing her for what she can do. One judge remarked that before Ms. Boyle sang, the crowd was likely being “cynical.” What is cynical is that the praise is not for Susan Boyle the person, but for Susan Boyle the singer. It is a signal of the utilitarian mindset running rampant throughout the culture–you are valued for what you can do, produce, sing, write, draw, etc. and not simply because you are a human person with innate worth and dignity.
How interesting it was, then, when the tables were turned. Miss California–a woman who is attractive by general consensus, has won beauty pageants before, etc.–gave the “wrong” answer by stating that she believed marriage was between one man and one woman. Immediately, her beauty was worth nothing, her performance the rest of the night did not mean a thing. Rather, she was judged according to one answer and her stance on one issue. She was valuable only insofar as her beliefs mattered to the judges.
Of course, Miss California was a good representative of her state because her beliefs matched the beliefs of a majority of California voters, but apparently that was not good enough. Even outward appearances could not save Miss California, Carrie Prejean, from being subject to the utilitarian code: if you are not actively furthering our agenda or you cannot produce what we value, you are not worth it.
This week in pop culture can only alert us to the fact that the culture war is still in its infancy. The value of a human life is greatly misunderstood when you must have a talent or you must say the right thing. It only goes to show how far we’ve strayed from our nation’s founding documents: “We hold these truths . . . that all men are created equal.”