EDITORIAL: Souter the extremist

EDITORIAL:

Supreme Court Justice David H. Souter will not be missed when he retires after this term. He wrote few memorable opinions. He enthusiastically, but without distinction, joined those justices who embraced whatever justifications were handy to support ever-more-liberal policy outcomes. The nation deserves better from his replacement.

To understand how weakly Justice Souter was moored to traditional methods of legal interpretation, consider the case of National Endowment for the Arts v. Finley. Mr. Souter was the only justice to dissent from a decision upholding the right of Congress to condition grants from the National Endowment for the Arts on “general standards of decency and respect for the diverse beliefs and values of the American public.” Not even liberal Justices Ruth Bader Ginsburg, John Paul Stevens or Stephen G. Breyer agreed with Justice Souter that the Constitution bars Congress from placing such reasonable limits on uses of taxpayer funds.

Mr. Souter’s extremist position on abortion puts to rest the popular canard that he is a moderate. He was one of the four justices who unsuccessfully argued in Gonzales v. Carhart that states are not free to ban the moral atrocity known as partial-birth abortion. This position puts Justice Souter at odds with a consistent 70 percent or so of the American public.

The Senate has a duty, when considering President Obama’s eventual nominee to replace Justice Souter, to insist that the nominee demonstrate fealty to the Constitution above any personal social agenda. Not just Republicans, but also moderate Democrats, should be expected to rigorously question the new nominee.

Former Justice Department official Ed Whelan, now president of the Ethics and Public Policy Center, warns that the new nominee could provide the crucial court vote for “the imposition of a federal constitutional right to same-sex marriage; stripping ‘under God’ out of the Pledge of Allegiance and completely secularizing the public square; the continued abolition of the death penalty on the installment plan; selectively importing into the court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites; further judicial micromanagement of the government’s war powers; and the invention of a constitutional right to human cloning.”

None of those positions comports with the actual text of the Constitution. Senators who approve a nominee who would impose those policies by judicial fiat should know the voters will hold them to account.