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Executive Briefing: The Supreme Court Vacancy

By May 3, 2010Legal
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CWA Finds No Reason to Trust President Obama on Supreme Court Pick

Concerned Women for America (CWA) would love for President Obama to go beyond politics – as he promised during his campaign – and nominate a Supreme Court candidate that all Americans can support. After the health care debacle, with zero bipartisan support helping to further expand the chasm between citizens, nothing would be more welcome than for the President to nominate someone who could make us all feel proud. CWA wants a judge with an excellent record of judicial restraint, a commitment to following the Constitution as written, and an awareness of the fact that they are not supposed to substitute their own personal feelings or ideology for the law.

Judge Diane Wood is being branded as a “moderate” by some liberal commentators, but looking at Judge Wood’s record, one can’t help but conclude she is a staunch pro-abortion advocate, willing to go to great lengths to protect her personal interpretation of “a woman’s right to choose.” In the infamous NOW vs. Scheidler case, Wood sided with abortionists in their attempt to sue pro-lifers under RICO, as if peaceful pro-life protesters were mobsters. The U.S. Supreme Court struck down her decision on an 8-1 decision. In a brazen act of judicial activism, Wood tried to continue the suit, even after the Supreme Court had ruled.

U.S. Solicitor General Elena Kagan has been mentioned, but her willingness to look at international law when deciding domestic cases brings concern. Also, her apparent religious bias is well known. In Bowen v. Kendrick, the Supreme Court disagreed with Kagan that federal grants to religious organizations violated the Establishment Clause. She argued, “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching. [A]ll religious organizations should be off limits.” Her views were so outrageous, she recanted them later at her confirmation hearings.

Judge Sidney Thomas is the latest name being mentioned, and that should say it all. Judge Thomas is one of the most left-wing judges in the most left-wing circuit in the nation – yes, the 9th Circuit Court of Appeals. He even upheld the most inhumane, discredited practice of partial-birth abortion in Planned Parenthood Federation v. Gonzales, where he found the Partial-Birth Abortion Ban unconstitutional.

But beyond names, the ideology driving the search of a proper candidate at the White House is what Americans cannot trust. Even in President Obama’s latest statement, where he tried to say he had no “litmus-test” for his nominee, the president put a lot of emphasis on the abortion issue, saying the issue is “very important” to him. “I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights,” he said insistently.

President Obama has given conservatives no reason to trust that he will do the right thing. He has articulated a judicial philosophy that not only allows but expects a judge to decide cases based on what he “feels” is right, instead of the law. The President argues that the law can only take judges so far, and then judges must decide those very difficult cases “on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” During Chief Justice Roberts’ hearings, then-Senator Obama concluded, “[I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

If you think that sounds a lot like a litmus test, you might understand why we cannot trust the president on this issue.

This idea is so preposterous that even his own Supreme Court nominee, Justice Sotomayor, rejected it at her confirmation hearings. “We apply law to facts. We don’t apply feelings to facts,” she said, distancing herself from the President’s ideology.

President Obama has been relentless in his support of those types of nominees. His first judicial nominee, Judge David Hamilton, was a slap in the face to every Christian conservative. Judge Hamilton was the infamous activist judge who ordered the Speaker of the Indiana House to immediately stop the practice of “sectarian prayers,” ordering that, “[T]hey should refrain from using Christ’s name or title.”

His latest nominee, Goodwin Liu, argues that judges should read into the Constitution a constitutional right to welfare. He argues that judges “determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.”

Conservatives cannot but reject this radical ideology. Even the names being mentioned on President Obama’s short list tend to show his unwillingness to move beyond ideology.