Supreme Consequences

The latest entry in the "elections have consequences" category is the announced retirement of Supreme Court Justice John Paul Stevens. It's no secret that Justices have a tendency to vacate their seats under conditions that favor replacements cut from philosophically similar cloth. Justice Steven's replacement will likely provide Barack Obama with a judicial legacy that will last for decades to come. Through herculean efforts, and a minor miracle or two, the health care bill may be repealed. But, appointments to the Supreme Court may as well be carved in granite.

It is among a President's greatest betrayals of the constitution to appointment a Supreme Court Justice that refuses to limit his actions to the interpretation of established law and precedent. Unfortunately we have ample assurance from President Obama that his appointees will not be so constrained. Obama has not been subtle about the fact that it is his expressed desire that the blindfold of justice be removed and replaced with a microscope of empathy that implies situational justice under a system of situational law. The transformation of America will extend into the American system of justice.

The process of Supreme Court appointments is one more area in which we see the disparate levels of the playing field between statists and conservatives. The original intent behind the various branches of the US government was that there would be a somewhat adversarial relationship between the branches. Each branch is intended to check the power of the other branches. Under this system it was originally presumed that no congress would stand for the appointment of Supreme Court Justices expected  to venture into the domain of the legislative branch. The original formula was fairly simple; Congress passes laws, Supreme Court interprets laws, Congress updates laws if it isn't happy with the Supreme Court's interpretation, Supreme Court decides if Congress's law is constitutional. Unfortunately, it favors one side over the other if the Supreme Court abandons this formula and ventures in to the legislative arena as a mini-Congress sans accountability.

It is a farce that the debate over judicial appointments is nearly always broken down along the lines of left and right. There are only two ways that a judicial appointee can be perceived; as an interpreter of existing law, or as a fabricator of new law. How does this become a left versus right issue? Only the first of these two types should be approved by any Senate of any political persuasion. To do otherwise requires the Senate to sede a portion of its authority to the Judiciary. But when it is to the advantage of Senators from one political party to look the other way and allow activist Justices into the system at the expense of their own authority, there are few options available to the opposition.

The hue and cry about Republican obstructionism over Obama's 'unnamed' Supreme Court appointee has already started. Where the whole Senate should be set in opposition against the type of Justice that Obama has already told us he will select, it is clear that the battle will break along party lines once more. It may not be possible for Senate Republicans to stop the appointment of an activist SC Justice. But if the ideal response would be for all of the Senate to guard their domain and protect the integrity of the court, then there is absolutely no excuse for Republicans to avoid this fight, even though they will undoubtedly stand alone.