Washington Examiner Editorial on the Supreme Court

Two Views of the Constitution and Supreme Court nominations

By: Sen. Jim DeMint, OpEd Contributor- 5/20/09 4:33 PM

Quick, name the American public official who said that a Supreme Court Justice should "make decisions based on the law and the Constitution. Politics and ideological agendas have no place on the nation's highest Court . . . . Activist judges -- from the right or the left -- who substitute their judgment for that which is written in our national charter and in our nation's laws undermine the protections for ordinary Americans provided in our Constitution."Was it:* President George W. Bush* Justice Clarence Thomas* Chief Justice John Roberts* Justice Antonin Scalia* None of the above. It was Vermont Democrat Sen. Pat Leahy, chairman of the Senate Judiciary Committee, who this week deployed the Orwellian strategy of adopting the language of one's adversary and slapping it on an agenda to do the precisely the opposite.
Regrettably, Leahy's tactics make it very hard for Americans to evaluate the two very different positions on the correct way to interpret the Constitution, which has once again taken center stage with President Obama's first chance to nominate a Justice to the U.S. Supreme Court.

These two sides took clear shape in the 1980s, when a great and honest debate arose between advocates of judicial restraint, led by President Reagan's Attorney General Ed Meese, and advocates of judicial activism, led by Justice William Brennan. Leahy has always been in the Brennan camp, who are euphemistically referred to as proponents of the "living Constitution," which sounds nice, except that it means you have to throw out the written Constitution.

The problem for Leahy, and for Obama (who is the greatest proponent of judicial activism to occupy the White House in our nation's history), is that Americans like the written Constitution very well, thank you, and they want judges to stick to it. In fact, 70 percent of actual voters nationwide in the last election, regardless of whom they voted for, want a president to nominate justices who "will interpret and apply the law as it is written and not take into account their own viewpoints and experiences" -- that is, who will not do as Obama has said he wants judges to do in the most difficult and controversial cases involving our Constitution. Obama has said plainly that he intends to choose a justice who will go beyond the law and instead be guided in his decisions by “that quality of empathy, of understanding and identifying with people’s hopes and struggles.” That is, instead of applying the Constitution and Bill of Rights as they are written, an Obama judge would substitute his own personal views, feelings, and experiences in deciding court cases.

Yet, in his very next sentence, the president went on to contradict his previous statement, using Leahy’s tactics, “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.” Which is it? The rule of law or a justice’s personal views? It cannot be both.But Americans did not vote for Obama because they agree with him on rewriting our democratic laws and Constitution from the bench. In fact, they disagree -- by a margin of more than 3 to 1.

Which is why the President and Leahy are now wrapping their long embrace of liberal judicial activism -- of judges substituting their own (liberal) views for what the law says -- in the rhetoric of the rule of law and judicial restraint.There are only two possibilities here: Dissembling or epiphany.If the former, then Leahy and the White House are seeking to confuse the issue of what's at stake in Supreme Court appointments. Instead of having the courage of their convictions, as Justice Brennan did, and giving Americans a sharp picture of the distinction between the two camps on this issue, they have co-opted the language of judicial restraint to advance the cause of politicized judicial “empathy.”

This cynical manipulation of words undermines the very basis for our system of self-government, because the people are entitled to a robust debate between adversarial points of view among their public servants to decide whom they want to support. Or, Leahy and Obama have simply seen the error of their activist ways, and are now adherents to the original intent of the Framers. They've come to appreciate the decades of overreaching by the Supreme Court, which has failed to equally uphold the explicit commands of the Constitution and Bill of Rights for all Americans and instead has concocted law that was never agreed to by the Founders or by living American citizens.

If this is the case -- and I truly hope it is -- the proof will be in the pudding when Obama nominates someone like Justice Byron White, nominated by President John F. Kennedy, who stood firmly for the rule of law as written in the Constitution and Bill of Rights, who dissented from Roe v. Wade and other lawless forays by the Court into legislating from the bench.Very soon, we will see which of these two scenarios is at work.

Jim DeMint, U.S. Senator from South Carolina, is chairman of the Senate Steering Committee.