Uh Oh… Souter Retires, Liberals Get Giddy

us-supreme-court-sealThe news broke this morning and I immediately fell to my knees and screamed to the heavens “Nooooo”. OK that didn’t really happen, because I saw this coming, as the rumors had been swirling for a while now. Justice David Souter has announced that when the summer session ends he will step down as a Supreme Court Justice after 20 years on the nation’s highest bench. This means that the “Progressive President” will have his first opportunity to appoint a Justice to the Supreme Court. I know that many of you are already starting to panic. You are afraid that the ultra-liberal agenda of the current administration means that the Supreme Court is going to drastically change, moving far to the left, and the world as we know it is going to crash down around us. I can already hear some of you grinding your teeth and packing up your belongings so that you can make a quick exit from the country. To everyone I say… 

Take a deep breath again. Don’t panic. Let’s take a look at the entire situation and see where this leaves us. For those opposed to the “liberal agenda”, you are correct that Obama has the ability to place a far left Justice in place. But it isn’t like he is replacing a conservative Justice. He will be replacing a left of center Justice. Souter can be considered liberal and most would agree with that assessment. He isn’t radically liberal agenda driven like Ginsburg mind you, but left of center, even more to the left in his later years on the court. 

justice-david-souterSouter, who was appointed to the court by Bush Sr., has generally voted with the liberal wing of the Robert’s Court. The Senate Judiciary Committee approved him by a vote of 14-3 and the Senate confirmed him to the position by a vote of 90-9. Souter started out as a conservative Justice, initially voting with the conservative wing between 80% and 90% of the time. However, in 1992, he began to change and move to the left. Two rulings that year were big: Planned Parenthood v. Casey, in which the Court reaffirmed the essential holding in Roe v. Wade,and Lee v. Weisman, in which Souter voted against allowing prayer at a high school graduation ceremony. 

Since that time Souter has consistently voted with the liberal wing of the court. By the late 1990s, Souter began to align himself more with Stephen Breyer and Ruth Bader Ginsburg on rulings, although as of 1995, he sided on more occasions with the most liberal justice, John Paul Stevens, than either Breyer or Ginsburg. He was a dissenting opinion on the Bush v. Gore decision in 2000. Despite being appointed to the court by a “Conservative” President (and I say it that way because Bush’s were not really all that conservative, despite that label), and opposed heavily by traditional liberal Senators such as Kennedy and groups such as the NAACP, Souter has turned out to be a part of the liberal wing of the court. So at best, Obama will replace a liberal with a liberal in this case.

So what has O’prompter said in his initial statements about a replacement that will be appointed for life? Since Souter generally votes with the liberal wing of the court, Obama is not in a position to shift the balance of the body. But speculation already is widespread about whether the president will pick somebody whose philosophies are left of Souter’s and whether he will pick a woman, a minority, or both. Justice Ruth Bader Ginsburg is the only woman on the Supreme Court (and recovering from Cancer).   

Obama has stated that his ideal justice would have a connection with ordinary people. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives,” he said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” He said he’ll also seek a nominee dedicated to U.S. constitutional traditions, and who respects the “appropriate limits of the judicial role.”

roberts-courtAs for his positions on the current sitting Justices? In his few years on the national stage, Obama practically ruled out ever considering a conservative justice. As a U.S. senator, he voted against Chief Justice John Roberts and Justice Samuel Alito, even joining a failed filibuster against the latter. “I would not have nominated Clarence Thomas,” Obama said. “I don’t think that he … was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution. I would not nominate Justice Scalia, although I don’t think there’s any doubt about his intellectual brilliance, because he and I just disagree,” he added.

As for the court overall: Obama has described his ideal Supreme Court as being a “refuge of the powerless”. Specifically he has said, “And then there’s another vision of the court that says that the courts are the refuge of the powerless,” he said. “Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process…. And we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

court-interiorAnd let us not forget that in 2001, as a Senator, Obama gave an interview to a Chicago TV station where he addressed the role of the court. I ask that anyone who wants to bring up that interview first read the entire interview and put it into context. There are a lot of conservative folks who have tried to claim that Obama said in the interview that the Warren Court wasn’t radical enough (not at all what he said) and that the court did not do enough to redistribute wealth (He kind of said that but read in context he was actually saying that the court was CORRECT in not doing so). I just want to be fair here as I imagine that is sitting in the back of your head. It is relevant, and his comments from that interview, despite conservative talk show spin, should actually make you feel better about him appointing a judge than worse. He was correct in just about everything he said in that interview.

So I am not sure what to expect from Obama in terms of a nominated Justice. I will simply have to wait and see who it is that he puts up there. But I am not going to panic just yet. As I have said over and over, I am willing to give O’prompter the benefit of the doubt in each case individually. I will say so if I think he makes the wrong move. It is the point of this blog after all, arm-chair quarterbacking government’s horrible decisions, lol. However, if he appoints someone that I do agree with, I think you all know me well enough to know that I will say so. For now, I think the right thing to do is wait and see.

supreme-court-outsideAnd I know that some of you are a bit worried because with what looks like a rubber stamp Congress that includes a filibuster proof majority, there is absolutely nothing that can stop Obama from appointing the most liberal Justice in history. Ah, but hold on just a moment. We can now thank Arlen Specter for his little defection earlier this week. Specter’s switch to the Democratic Party this week could give Republicans on the Senate Judiciary Committee the upper hand in rejecting a nominee they find unacceptable. That’s because the Judiciary Committee, where Specter was the ranking minority member, requires the consent of at least one Republican to end debate and move a nominee to the full Senate for a vote.

Most people presume in a controversial nomination that Arlen Specter would have been the one most likely to vote with Democrats, since he prides himself on being independent of Republicans and he did, after all jump ship for the Economic Stimulus Bill. But now that he moves over to the Democratic side, the president and Democrats lost their most likely minority vote. Democrats aren’t powerless to stop a potential filibuster at the committee level. They could change the rules to allow the committee to vote on the nominee and send a recommendation to the full Senate without Republican consent. I don’t think they would want to set a precedent like that, however. As political as they can be, they have tended to put value on the rules of conduct (although as we have seen in the move to fast track health care and cap and trade, they have thus far been willing to manipulate the rules in order to silence any opposition, so who knows?)

So I look forward to hearing all of your thoughts on this. Especially BF, who I haven’t really heard a lot from in regard to the Supreme Court. 


  1. Birdman says:

    O’prompter despises the U.S. Constitution. His statement about appointing someone dedicated to the constitutional traditions reveals his views. The Constitution was intended as a legal document and the foundation of our form of government but we are so far off course now that O’prompter views it as “constitutional traditions” and something that can be referenced but ignored. It’s no surprise to anyone that participates on this site.

    • Richmond Spitfire says:

      Thank you Birdman,

      It is nuances like this that I totally miss! “Constitutional ‘Traditions'” Makes me ill!


    • Nelson T says:

      While I agree with you, I do not think that the correct term to use is “despises”, rather, I believe he chooses to ignore the constitution and believes he and the liberals in congress has all the right in the world to do so.

    • USWeapon says:

      I would agree. I don’t think despises is the right word. I do believe that Obama has a distorted view of the Constitution. One of the comments that I remember from him that didn’t sit well with me was he would seek a nominee who would be rooted in Constitutional Traditions, not law, but traditions. That worries me a bit. He sees the Constitution as a document that must be reinterpreted in a new context, and that also scares me a bit.

  2. It is not this particular appointment that worries me, although it is bound to be someone who makes Souter look conservative; it is the number of SCJ’s that Obama may have the opportunity to pick during his first term alone. If one of the conservative judges leaves the bench for any reason, then we will be in serious trouble. The SC is the most powerful place in our system for a President to leave a lasting mark. We are guaranteed picks who will not be strict Constitutionalists, but who will attempt to interpret the Constitution through their own radical lenses. The Republicans can filibuster in committee, they can ask the tough questions to expose the thinking of BO’s nominees; but they will not be able to stop the slow transformation of the court into an activist judiciary, which will have a cascading effect throughout the system. I see the potential for complete consolidation of power in the next few years as a serious threat to the country. Yes, the threat has been growing for many years, under many Presidents. This, however, could mark the beginning of the tipping point. Many people are waking up and realizing that the Constitution has been raped and pillaged for a long time now, and that there is a need to return to it’s core principles in their purest form. As BO shapes his court, this effort will be made all the more difficult to achieve.

    • USWeapon says:

      It looks as though the most likely second replacement would be Ruth Bader Ginsberg. I can’t imagine a better situation for Conservatives than to have him only given the chance to replace the Liberal wing Justices. Who else do you think he will be replacing? And let’s not forget that Souter was a conservative pick and switched on them. The same could happen to either side.

      • The word is that BO is likely to get 3 picks in his first term. Not sure who after Ruth, but some of those guys are getting up there in age. Souter was a conservative pick, but a moderate one. I am quite doubtful that there will be any question as to the leanings of any Justice that Obama picks. It is likely that they will be far left ideologues. He knows that this is his chance to really shape America for a long time to come.

  3. anoninnc says:

    First, as someone who follows the blogs on Fox, it is refreshing and encouraging to read intelligent and non-bashing commentary here. Thanks for suggesting your link.

    As a conservative and a person of faith, it continues to be a sober time to observe in this great country.

    I suppose my major concern is that no one in authority seems to care about what is happening: our departure from founding principles, our dismantling of capitalism (which, in its origins, is also a Judeo-Christian principle), the slide (willingly) toward socialism and concentrated power, and a burgeoning debt and government control that will change us forever.

    It seems that every conservative opinion that makes sense is immediately discounted and bashed and labeled as extreme . . . simply because it is conservative.

    On other blogs, what I am about to say would lead to immediate ridicule; more and more I am convinced that my only resource is prayer – prayer that hearts would be changed back toward our spiritual roots, back to a time when relativism was a very minority principle, back to a time when statesmanship overpowered political activism.

    I suppose, to use an old fashioned word, what we need is “revival” . . . at all levels.

    I alos pray taht all of those who voted for “the center” last November will see that “the center” is a misnomer and a cover for a leftism that, although protected by our Consitution, threatens the Constitutional foundations . . . and the potential for radical change in the make-up and ideology of the Supreme Court is the most obvious and serious threat of all.

    I continue to hope that the stark differences between “left” and “right” will begin to finally awaken the collective American conscience . . and move our feet toward the next opportunity at the ballot box in overwhelming numbers.

    For the sake of our children and our grandchildren, I pray that will be the case.

    • Anoninnc:

      Welcome to the site. I think you will enjoy your time here, although you will be challenged. Respectfully, but you will be challenged.

      So let me start. You said “our dismantling of capitalism (which, in its origins, is also a Judeo-Christian principle),”

      If you are implying that Judeo-Christian beliefs are the base of capitalism then I will strongly disagree. Capitalism existed long before Christianity. It just hadn’t been labled.

      Or were you trying to say the capitalism is a principle of the modern Judeo-Christian philosophy?

      Again Welcom and Best Wishes

      • anoninnc says:

        Your second point is a better definition of what I meant . . . not trying to be “religious,” but (at least in Washington, and I suppose that is where it matters most) we have left the foundations of who we are . . . no matter the origins.

        Don’t mean to sound morbid or down, but it is amazing to watch so much that is so obvious go unchallenged by those in the “mainstream.”

        History has cycles , , , hope I live long enough to see this one come back around . . .

        As far as challenge is concerned, I welcome challenge. Challenge is healthy and is part of what is missing in the current political environment.


    • USWeapon says:

      Let me also welcome you to the site Anoninnc. I hope you will enjoy the time you spend here. Take some time to go back and read some of the past stuff and see what you think!

  4. The whole thing will ultimately come down to the bigger question. Are there absolutes or are there not? If everything is in shades of gray,if the Constitution is perceived as “living and breathing” adaptable in it’s present form to any current contingency, we are doomed. Then, as Von Ribbentrop said, about the Hitler-Stalin pact, “It becomes a scrap of paper”.

    On this blog, folks have visited who have no use for the past, who tell us we must live in the 21st century and adapt to the times. I will quote Bill Buckley again. “It is the duty of conservatives to stand athwart history and yell stop.” Before I allow the laws of Physics or the Constitution to be revoked, someone had better prove to me that the new way is better.

  5. USWeapon says:

    The aspect of the position Obama espouses on a new candidate that scares me the most is the idea that he is looking for a nominee that has empathy for the downtrodden. A couple of thoughts on this.

    First I don’t want an empathetic Justice. Lady justice is blindfolded for a reason. She isn’t supposed to be empathetic. She is supposed to be blind to that part of things. That is the point. Justice is supposed to be blind to empathy. It is supposed to determine the rule of law, according to the law. No politics, no empathy, no bias, nothing. The rule of law. Period.

    Second a truly empathetic Justice would have to be empathetic to both sides and therefore that would cancel out the empathy. So what Obama is looking for is not a Justice who will be truly empathetic. He is looking for one who will empathetic only towards one side of the issue.

    Does anyone agree or disagree with these thoughts?

    • Agree fully; when I heard him use that “empathy” language, I thought, here we go. Sounds good, right? How can we not be willing to help the downtrodden? You don’t agree with these statements? Then you must be one of those mean conservatives!

      It’s amazing how a few simple words used can be very telling and yet to most of the masses, that speech would be the voice of reason that they’ve been waiting for.

    • Bama dad says:

      Correct me if I am wrong but aren’t they called a Supreme Court Justice because they are suppose to dispense justice based upon the law and not empathy or emotion.

    • USW,

      I agree with you 100% on that one. Everybody should be playing by the same rules….

  6. US: Good Afternoon my friend.

    I totally agree. They will need to have a firm belief in “social justice” to get the nomination. That requires a modernist view of the Supreme’s role in facilitating change of the Constitution to match societies values.

    Our only hope is that only the left retires and thus nothing changes. Reality is that some of the mod/conservatives will probably retire in next 8 yrs.

    Hope the weekend is good for you.

    • What if one of two of the conservative members should die? What will the circumstances be? An accident? A suicide? Sudden illness? Should I put on my tin-hat now?


    • USWeapon says:

      Yes that is an unfortuante reality. I am concerned at the idea of the court being systematically changed to move towards the social justice mentality. That is such a dangerous place for us to be and would completely nullify the true spirit of what the court is supposed to be. It could in fact, be one of the greatest nullifications of Constitutional intend to date.

      My Saturday is just OK so far, but I am at work so that is to be expected. Tomorrow is a day I get to spend with my wife so I look forward to that. I hope your weekend is beginning spectacularly as well. I sent you an email about a half hour ago that I needed a reply on. I was having a discussion with BF and wanted to include you, but as you know I will not give out anyone’s email address or make it visible to another without permission, so I emailed you to see it that was OK.


  7. Bee in my Bonnet says:

    Since Obama taught Constitutional Law, does anyone know if he taught it as a ‘living and breathing’ document or if it should be taken literally? This would give a glimpse into where he will go with his nomination.

    My prediction on who will be on the short list – Harold Koh. He’s a transnationalist. He thinks that laws from other countries could be brought into play when making a decision. Interestingly enough, guess who has some of these views? Ruth Bader Ginsburg.

    Can everyone say Sharia Law?

    • We’ve been told he taught Constitutional Law; are there any records that that is true? I’m to the point where I trust absolutely nothing about what he’s supposedly done and unless students step forward, I won’t believe this either.

    • Bee:

      Based on comments he made during campaign I would say “living and breathing” not a literal interpretation.

    • Bee,

      That is a scary thought. Its even scarier when you find out how Sharia finance is progressing in the US and Europe. Aspects of Sharia being applied in the US isn’t as far fetched as it may seem.

  8. The imbalance of the Supreme Court only bids credence to my thoughts of making that post an elected one – sans political party affiliation, of course.

    Making the United States Supreme Court Justices answerable only to the electorate(we the people) and removing them from the clutches of political party platforms is the only way I can see to remedy the currant dangerous situation. I know that we all agree that something has to be done, so I am trying to think up things to do to fix this enormous problem that our collective past apathetic political behavior has put us in.

    USW – I am starting my new series on my blog this Monday, the fourth.

    • Alot easier to fix the constitution to remove so much wiggle room. Don’t have to do that more than once every few decades or so.

    • GAR,

      Are you sure having the SC accountalbe to the American people is a good idea? A lot of Americans think that what is going on now is just great. I don’t have much faith in the American people to do what is in their best interest.

      • USWeapon says:

        That is a good point…. the populist view of Supreme Court elections would end up with the same we get from politicians. I could see it turning into a popularity contest just like the Presidency. Those on the Supreme Court would not be those best suited io interpret the law, but instead would end up being who could come up with the best catch phrase. Elections did give us the current problem in politics. I imagine if the rest of Washington got fixed, the Appointments would not matter quite the way they do now.

    • USWeapon says:

      I look forward to reading your new series. I will be sure to comment and participate on the content!

  9. Amazed1 says:

    Ahhh…we live in the most trying times. The media thinks we are to stupid to understand a simple speech. And the supreme court thinks we are to stupid to understand the Constitution. Maybe that is the reason schools don’t teach the Constitution like they use to. I hate it when a Judge thinks he has the right to change what the Constitution says. Most of them can’t even understand the words “shall not be infringed”. Lady Justice is blindfolded for a good reason and she needs to stay that way. It use to be No one is above the law and No one is below the law…any more the rich are above the law and because of empathy the poor are above the law…..it is the middle class the law squeezes to death.

    • SFC Dick says:

      Amazed1, sir

      Nicely done. I was going to post about the Supreme Pain In My Ass, er, I mean court. I was going to aproach from the fact that they show a level of inconsistancy that is incredible. The find a right to privacy and allow a woman to commit abortion but do not find this same primacy of body to allow same said woman the right to comit getting toasted.

      They strike down a prohibition of autoweapons ( and supressors, supressors! ‘cmon nanny state, guns are loud, you SHOULD mandate suppressors ) but find a ban, er control, through federal regulation and issuance of a tax as if the comerce clause was meant to regulate my right to bear arms. They find a tax levied to regulate voting prima facia against the constitution but a tax of 3,500$ per piece, per anum, acceptable regarding my 2d ammendment.

      They rule on their authority.

      They at times ignore many cases that speak to the true abuses levied on the common man and allow themselves to be used as a political tool at others.

      And, AND..they write law, I mean interpret , like junior high civics class drop outs.

      Unlike many , I have a certain respect for President Obama. I find him competely wrong most of the time. I find his agenda not only missguided and unconstitutional but at its fullfilment a total dissaster for this republic, that being said, I do not think him evil. I see him as the natural progression of this missguided librel movement that began out of compassion, or something and has turned into a power houses of power for big government, so….ofcourse he wants a court that is compassionate. Ofcourse he wants the court to see some young black man as repressed by the system, when it may be just the opposite, and step in to right some wrong. Ofcourse he wants a court that interprets the constituion to support an agenda. Were he a little more honest with himself, he might see that this is exactly a court making law.

      Yes, Amazed1, i was going to post like that, but I know better. I know if I level so many points as fact, some one might require me to prove my argument and that requires time and research, so I’ll just say..

      Amazed1, great post, I agree.

      “All enlisted men are stupid, but they are cunning and deceitful and bear considerable watching.”

  10. Nelson T says:

    It seems I am not alone here. I too have become tired of the “name calling, idiotic, comments” on FoxNews and other sites. It is certainly refreshing to find others that have constructive comments and a willingness to listen to opposing argument. “THANK YOU USWEAPON FOR POSTING ON FOX, ELSE I WOULD NEVER HAVE FOUND THIS”.

    We all seem to be of like mind here. Question is, what are we going to do about it and how are we going to mobilize the effort. I believe we would be better served if we concentrated on replacing a good number of “Career Politicians” (both democrat and republican). I am sure there are a few in Congress that are sincere about serving the people that elected them. It is the others that could care less about the will of the voters and concerned only with their political careers that need to be given the axe. I have tried writing to my Representative and Senator, email (too numerous to count), phone calls with only one reply to date, which was a standard press release statement. Unless we, the voters, regain a voice in the shaping of laws that affect our daily lives, we will continue giving up personal freedoms, and shouldering greater financial burden to pay for the follies of our Congressional leaders. Somewhere, sometime, we have to stop allowing others to dictate how we should think and believe. If we the voters fail to question the actions of our elected representative, then we have no right to complain about the results of their actions.

    • SFC Dick says:

      Nelson T, Sir

      Welcome to this site. I too was a fox news online guy untill I saw USWep post there. The name calling by both sides became a real pain for me also. I like this site, now more so, because there are real points from the “other” side being represented here. I like that much.

      I think you might like reading the “doing nothing is the best plan” or policy or way, it is a thread that was started on this blog a while back that deals with getting involved and trying to change the system.

      “All enlisted men are stupid, but they are cunning and deceitful and bear considerable watching.”

      • Nelson T says:

        SFC Dick,

        Thank you for the warm welcome.

        “All enlisted men are stupid, but they are cunning and deceitful and bear considerable watching.”

        Sounds like you are quoting my ex C.O.(or did John Murtha say that?)

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