Friday, February 19, 2010

Obama For SCOTUS Justice?

Talk show host Michael Savage, for whom I have no love at all, is reputed to have originated the quip that liberalism is a mental disorder. He may finally have proved his point with evidence provided by a recent WaPo editorial by Georgetown law professor Jeffrey Rosen.

Rosen, apparently in all seriousness, suggests that: [Obama's] education, temperament and experience make him ideally suited to lead the liberal wing of the [Supreme] court." He continues in the rest of the essay to flesh out his reasons, most of which are factually in error.

I'm going to ignore those reasons here. That choice is so patently absurd I won't bother to argue against it. (Ok, I'll just mention this: apart from having vanishingly little experience in the law after his Harvard stint as editor of the Law Review — during which he published nothing — his open and admitted disdain for the Constitution* should disqualify him at the outset. Granted, that last hasn't stopped any number of Progressives from sitting, starting with Oliver Wendell Holmes.)

Instead, I'll just very briefly take up this notion of a "liberal wing of the court."

Given the modern meaning of the term "liberal" it is unconstitutional – and hence illegal — for there even to be a "liberal wing of the court."

In the Federal system, the role of the Supreme Court of the United States is to apply the principles of the Constitution to cases that come before it. Not to override the legislature to further a Progressive agenda. That it has done so off and on for the past 100 years** (particularly in the New Deal period, after FDR threatened to dilute the court***) is a major factor in the economic disasters the country has faced during the past century. A crime repeated is no less a crime for being common.

This country won’t be safe again until law professors like this one are back standing on soapboxes on the street corner, panhandling for nickels.

[*Obama laments on a Chicago radio program, 2001: "But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society.

And to the extent as radical I think as people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted.

The Warren Court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can't do to you. It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf."]

[** See How Progressives Rewrote the Constitution, by Univ. of Chicago Law Prof. Richard Epstein for details, along with

*** The Forgotten Man by Amity Shlaes.]

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