It's Time to Pick a High Court Fight

It is unclear whether the Left realizes just how bad Justice Stevens’ timing was when he announced his retirement last week. Given the Democratic Party’s increasingly precarious prospects for the November elections, the very last thing it wants or needs is a summer long, partisan fight over a liberal Supreme Court nominee. Therefore, that is exactly what conservatives should give them.

The high court is losing its most liberal member at a time when modern liberalism is increasingly unpopular with the American electorate. President Obama will feel compelled to replace Stevens with an equally progressive, equally activist judge. Otherwise, he would risk moving the court to the right--something his base would never stand for.

Stevens will likely be replaced by someone who is very liberal and liberalism is very unpopular. Conditions are perfect for the G.O.P and the Tea-Parties’ opposition to whomever Obama nominates to resonate with the public.

Senate Republicans made acted wisely when they held their fire and went easy on Sonia Sotomayor during her confirmation process. At that point, the President was still relatively popular and the Democratic Party had yet to be mortally weakened by the health care debate. Not having the numbers to mount a filibuster, the Senate G.O.P. kept its powder dry. This gives Republicans added credibility when it goes after Obama’s next pick. And they should not hesitate to do so vigorously.

In ramming through health care, Democrats showed the country that they were willing to change all of the rules in order to get their unpopular bill passed. Terms such as “reconciliation” and “deem & pass” have become well-known and infamous additions to the political lexicon. Along with the shady deals which were made in full view of the American people, these acts of legislative arrogance proved that the Democrats have nothing but contempt for the public’s desire for bipartisanship and a government which at the very least attempts to hide its backroom shenanigans from the inconvenient stare of the public.


It is predictable that Democrats will cry “obstructionism” if the G.O.P. flouts tradition by filibustering a Supreme Court nominee. But these accusations are likely to be viewed as the height of hypocrisy by a country still smarting from being ignored by Democrats during the health care debate. The Democrats don’t have a leg to stand on.

Obama’s efforts to sell the still deeply unpopular health care overhaul have fallen on deaf ears, further complicating things for the Democrats. It now appears that the Democrats want to change the subject as soon as possible. A battle over a new Supreme Court justice actually prevents them from doing so.

Instead of a debate about over abortion--the focus of past high court confirmation battles--the upcoming Senate smackdown will inevitably turn on the nominee’s views on the constitutionality of Obama’s health care mandate, which forces Americans to buy health insurance from private entities.

Thus far Democrats have explained away concerns over the legality of the mandate with vague references to the Commerce Clause. Yet, to this point, no Democrat has adequately explained how the Commerce Clause permits the government to force Americans to buy a good or service from a private party. Senate Republicans must make sure that Obama’s nominee is not able to worm his or her way out of answering this question. Making this the focus of the hearing and a prominent topic of the national conversation ensures that voters are continuously reminded of the health care fiasco that took place over the last year. Stretching this conversation out until the fall will benefit us immensely.

Oh, that pesky Constitution. Always getting in the way of the Left’s never-ending crusade for government-administered social justice. This poses yet another problem for Obama’s pick. Like Stevens, Obama’s selection for the court is likely to fit the mold of every other Democratic high court nominee of the last 30 years--an activist judge who believes that the Constitution is not to be taken literally, but is instead a “living” document, the language of which can be manipulated in order to justify just about any policy which that judge deems to be a moral imperative.

It’s unclear whether Obama has noticed or not, but right now the Constitution is experiencing a renaissance among conservative and independent voters. They kind of want their elected leaders to, you know, follow it.

Liberals may think the founding document is outdated and flawed, but if conservatives are successful in making the upcoming hearings about the relevance of the founders’ wishes and can turn the public’s attention to how 220 year old intentions conflict with Obamacare, the Democrats are going to pay a huge price.


There was a time when a great deal of deference was given to the president in the naming of Supreme Court judges. In a less partisan era, it was widely believed that the founders intended the Senate to base its decision to confirm or oppose a nominee on a judge’s competence and knowledge of the law. Then, Ted Kennedy and Joe Biden changed everything by opposing the nomination of the eminently qualified Robert Bork, solely on ideological grounds. In recent years, the Left has continued this strategy, putting strict constructionist judges through a vicious ideological and, at times, personal wringer in hopes of destroying their credibility.


By changing the standards by which judges are judged, the Left believed they were ensuring the continuation of progressive judicial activism and thus, the modern liberal agenda for generations to come. However, they are about to get a comeuppance for their agenda driven behavior.


In the end, Obama will probably get his pick through as we know that Harry Reid will not hesitate to go nuclear if he’s not getting his way. But that’s not the point of this upcoming exercise.

While it should sadden conservatives to accept that the standard by which the Senate approves judges has unalterably diverged from the intention of the founders, the benefits of putting up a protracted fight in this instance, both politically and for the sake of the Constitution, should not be shied away from. Given the anti-progressive mood of the country and the fact that even the confirmation of a far-left jurist will not change the balance of power on the court, this appears to be a no-lose situation for the conservative movement.

- Dan Joseph

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