- The Washington Times - Tuesday, April 13, 2010


President Obama probably isn’t looking for another “wise Latina” to put on the Supreme Court to replace John Paul Stevens, but he’s apparently looking for a rabble-rouser. He promised on his return from Prague that he will nominate someone who knows “that in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Ordinarily, this sort of boiler-plate civics-lesson blah-blah is easily dismissed as a politician’s instinctive blather, but this is community-activism writ large, reflecting what Barack Obama actually believes and wants to impose on the court if he means what he says.

The voices of ordinary citizens are important, and it’s important to make sure their voices aren’t “drowned out” by “powerful interests,” but once upon a time that was not the job of judges. The job description for a Supreme Court justice was about allegiance and dedication to the Constitution, which would take care of the citizens, ordinary and otherwise. A justice of the Supreme Court understood that he was to look to the law and leave community organizing to someone like Barack Obama.

Alexander Hamilton thought “the judiciary will always be the least dangerous institution to the Constitution” because it has neither “the sword nor the purse.” He never imagined that judges could, or would want to, steal from Congress the power and authority to write the nation’s laws. Robert Yates, the chief justice of the New York Supreme Court, tried to warn the constitutional convention of 1787 of what the U.S. Supreme Court might come to because “a court of justice” had never been invested “with such immense powers, and yet placed in a situation so little responsible.” The Supreme Court, he warned, could “extend the limits of the general government gradually … and melt down the states into one entire government for every purpose.”

And so it came to pass. The states — with Congress going happily along — have been “melted down” so that presidents with a majority can now expect his senators, whose first allegiance is to party and partisanship, to rubber-stamp whomever he chooses. Some Republicans promise a rousing opposition to Mr. Obama’s nominee if he (or more likely she) is a nominee outside the “mainstream.” But more likely the Senate, a weak and skulking lot of badgers and hedgers, will indulge their usual appetite for debate and discussion, which is to say, none at all. Orrin Hatch of Utah, ever eager to argue that he and his fellows aren’t quite as bad as everyone thinks they are, set the tone for the loyal opposition with his hint that he might endorse Hillary Clinton, if the president is tempted to use the court as the town dump, as presidents before him have done to rid themselves of ambitious allies.

With 59 sure votes, the Democrats could confirm a melancholy Dane, an imam or a Hottentot if the president insists, but with 41 votes, a spine and the threat of a filibuster the Republicans could make the debate over the nominee a teaching moment, particularly with the November elections casting a dark and deepening shadow over the proceedings. The nomination of Sonia Sotomayor, the “wise Latina,” ultimately succeeded, but the debate unfolded as the teaching moment the conservatives intended. They can repeat this modest success again.

The Republicans in the Senate will be tempted to resign themselves to contributing polite argument and then polite applause, to sit back in the warm embrace of self-satisfaction for the job they imagine they have done on the president, his agenda and his party over the past year. The polls show the president’s approval ratings continuing the slide; the passage of health care “reform” has only accelerated the slide. The Republican pols imagine they did it, that all they have to do now is coast toward November and reward.

But the unraveling of the Obama myth is the refining work of reality, which is a harsh teacher who grades on a steep curve. The Tea Party protests, much maligned by polite and prissy folk, have turned the nation’s politics upside down and there’s scant sign that anything will turn them aright again. The meek and mild Republican strategists have been neutered by the accusation that theirs has become “the party of No.” Indeed it has, and for one brief, shining moment it has the old politics on the run. This is no time to go wobbly.

Wesley Pruden is editor emeritus of The Washington Times.

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