On Wednesday, the Daily wrote an editorial (The second vacancy, 09/7/2005) concerning the simultaneous U.S. Supreme Court vacancies left by the retirement of Associate Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist. The Daily encouraged President Bush to nominate justices who will preserve the ideological diversity of the Rehnquist Court. Despite what the Daily and other liberal editorial pages might print, the preservation of ideological diversity is not the reason for encouraging an O’Connor-like nominee. Liberals want a justice who fits O’Connor’s profile because that justice’s swing vote on key social issues – abortion, public display of religious symbols, affirmative action, etc. – would still ensure a 5-4 liberal majority.
The Daily did concede Bush – as a fruit of victory – earned the right to select a nominee who reflects his judicial philosophy. Bush and Republican Senate candidates promised during the last few election cycles to combat the infestation of activist judges on federal benches, and they should deliver on that promise. The Republicans failed to eliminate the filibuster of judicial nominees earlier this year – a failure that did not go unnoticed by the conservative base. Bush and Republican senators have an excellent opportunity to atone for their filibuster failure and deliver on their campaign pledges with O’Connor’s retirement and Rehnquist’s death.
Bush’s nomination of John Roberts as chief justice essentially replaces Rehnquist with an acceptable strict constructionist who will oversee the workings of the court for decades. Now the president must roll up his sleeves, spend whatever political capital the Hurricane Katrina debacle left him and nominate another strict constructionist to the bench. The nomination of a strict constructionist for O’Connor’s seat will cause the most contentious fight since Robert Bork. Why am I so confident a fight is oncoming? Simply put, liberalism does not win at the ballot box. In order to survive, liberals must institutionalize their beliefs in the judicial branch. The Supreme Court is their last defense.
A majority of strict constructionists on the Supreme Court threatens the holy cathedral of abortion. The process of reversing Roe v. Wade is not simple. The court would take down the cathedral stone by stone through a serious of decisions, which would require years of a stable strict constructionist majority on the court. Rehnquist could not overturn the court’s precedent on abortion because he lacked support from his colleagues. A court led by Roberts – flanked on the right by Scalia, Thomas, Kennedy and another strict constructionist – could ensure liberals’ worst fear – that the people decide on abortion. How confident are liberals that state legislatures will agree with the Blackmun majority?
The fight over abortion is just one battle in the war between judicial restraint and judicial activism. Just last term in Kelo vs. New London, CT a 5-4 liberal majority ruled that local governments, using eminent domain, can seize private property and allow another private owner to purchase the land so long as the project is for public works or increases tax revenue. A majority of nine lawyers took away the private property rights of every American with one ruling. I could write for weeks and cite case after case where the same travesty occurs – activist judges write their personal policy preferences into law, and the liberal Left champions the decision as final.
History looks back at every president’s administration and determines its legacy. When historians reflect upon the Bush administration I hope they write that he reduced judicial activism and gave legislative power back to the people.
John Stiglich is an LSA junior. He can be reached at firstname.lastname@example.org.