With the long expected retirement announcement by Justice John Paul Stevens on Friday, President Obama gets a second opportunity to shape the Supreme Court to match his very activist view of the law and the role of judges. That role, according to the President, is not to interpret the Constitution and statutes based on the time-honored principle of blind justice, but to use “empathy” to make sure that “powerful interests” are not “allowed to drown out the voices of ordinary citizens.”
Some might believe that it would not be worth the effort of conservatives to spend much time and resources on opposing a liberal, activist nominee because Obama will simply be replacing a liberal with another liberal. But they would be wrong.
There is no doubt that Justice Stevens has taken the wrong view in a vast majority of cases for many years, pushing judicial supremacy over the other branches of government (particularly in the area of national security), imposing liberal social policy as new-found rights, and on too many occasions veering from the original meaning of the Constitution. But he has occasionally made the right decision – such as when he wrote the opinion in 2008 that upheld Indiana’s voter identification law as perfectly constitutional.
As a former anti-corruption lawyer from Chicago, a city with an infamous reputation when it comes to elections, Stevens wrote for the majority “that flagrant examples of [voter] fraud…have been documented throughout this Nation’s history by respected historians and journalists…[that] demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.” The Indiana legislature was thus fully justified in implementing a common-sense security measure like photo ID, something that the vast majority of voters believe is a sensible idea.
But voter ID is anathema to liberals, particularly liberal lawyers and law school academicians. It is almost impossible to have a reasoned debate with them over this issue. The fact that voter ID has been found to be both constitutional and not a violation of federal voting laws like the Voting Rights Act in various court decisions annoys and irritates them to no end. There is no question that most of the liberals that Obama could nominate will probably take the opposite view of Stevens on an issue that is vital to the continued integrity of American elections. The Indiana case was a 6 to 3 opinion, but liberal activists would love to be able to falsely characterize those who support voter ID as a bunch of right-wing, anti-minority bigots. Moreover, getting the wrong liberal on the Court would bring voter ID one step closer to being eventually outlawed by activist judges – it will give liberals another opportunity to slowly chip away at a Stevens decision they abhor.
This is just one of many issues that will come up before the Court again. It is vital that Senators probe to ensure that any nominee understands the importance of the rule of law and adherence to the Constitution. We need a justice, even if liberal, who does not bend the law to favor their own, particular ideology and the social policy views most currently in fashion in the “progressive” academy.
