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Justice Kennedy Retires: Beware The Souter Mistake

Before we get into who President Trump should nominate to succeed retiring Justice Anthony Kennedy it is worth reviewing exactly why we have a Supreme Court in the Constitution and how the constitutional role of the Court has been warped over the years.

When liberals find some impediment to imposing their will on their fellow citizens, their usual reaction is not to Trump on Kennedyaccept that the Founders in their wisdom bequeathed us a federal government of limited powers, but to look for a way around the limits.

In recent times their first and most effective means of bypassing constitutional limits on government power has been to pack federal courts with anti-constitutional liberal judges who are only too happy to ignore the plain words of the Constitution in favor of their own biases, emotions and liberal political goals.

The establishment media encourages these anti-constitutional judges by constantly promoting the idea that a Supreme Court more in tune with public opinion would be a good thing, particularly if it was more in tune with the public opinion of the liberal urban elite.

That’s not what the Framers of the Constitution had in mind when they wrote the Supreme Court into the new Constitution.

Alexander Hamilton outlined the Framers’ vision of the role of the Supreme Court, and the arguments in favor of it in Federalist 78.  Hamilton’s argument was that the Supreme Court was to act as an “excellent barrier to the encroachments and oppressions of the representative body.”

Contrary to what the establishment media would like us to believe, the choice of the next Supreme Court Justice should be based on whether (or not) that Justice will follow Hamilton’s vision of his or her role in our constitutional government.

In the past Republican presidents have found this to be a difficult task – witness the appointment of Justices Kennedy and David Souter as two not-so-stellar examples.

Justice Kennedy was a third-round choice after conservative super star Robert Bork was rejected by the Senate and the second nominee withdrew after admitting to marijuana use. Unlike Bork, Kennedy had no background in the conservative movement. While he made all the right noises about “judicial restraint” during his confirmation, his tenure on the Ninth Circuit Court of Appeals should have raised red flags for conservatives, signaling as it did what one might describe as a more libertarian to liberal view on many issues.

Justice Souter is by far the worst recent example of Republican failure to adequately vet a Supreme Court nominee. Souter was an obscure New Hampshire state judge whose candidacy was championed by George H.W. Bush’s White House Chief of Staff John Sununu and New Hampshire’s Republican Senator Warren Rudman, a fiscal conservative social moderate Republican.

Souter gave clear clues during his confirmation that he was not a strict constructionist or originalist and was not interested in fulfilling the role Hamilton envisioned for the Supreme Court, saying:

Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges, as far removed from the trial arena as it is possible to be. And so we had better use every power of our minds and our hearts and our beings to get those rulings right.

Notice there is no mention of the Constitution or the law in Souter’s statement.

Rudman wrote in his memoir that he had "suspected all along" that Souter would not "overturn activist liberal precedents.” No one in Washington really knew anything about Souter’s judicial philosophy or commitment to the constitutional principles Hamilton espoused, nor did anyone recognize his eccentric personal life as bringing his suitability for the Court into question.

Bush’s goal was to avoid a confirmation fight and after the Democrats failed in their effort to paint Souter as a Far-Right activist, he was confirmed 90 to 9. Souter arrived in Washington known by no one and knowing no one and, having no commitment to conservative principles, he was soon captured by the Court’s liberal plurality and participated in the majority on many of the Court’s worst decisions of his era.

One of the issues that motivated the vast majority of cultural conservatives to unite behind President Donald Trump’s candidacy was the prospect of Hillary Clinton choosing enough Justices of the Supreme Court to give it a multigenerational Far Left majority, especially with the vacancy created by the untimely death of the great Justice Antonin Scalia.

Justice Scalia was not only a great originalist jurist, but he boldly confronted the progressive legal and judicial establishment, which so often has chosen political correctness over the Constitution and the rule of law.

Justice Scalia was noted for upholding the rule of law, respecting the proper role of the judiciary, and acknowledging the separation of powers.  Unlike Justice Souter, he was never sidetracked by trying to appease or please his progressive colleagues in their pursuit of political correctness over the constitutional rule of law.

What conservatives are looking for in President Trump’s next Supreme Court nominee is that same kind of boldness and commitment to conservative principles of jurisprudence.

Democrats in the Senate have already begun to attack those rumored to be on President Trump’s short list as “extremists” and have made it clear that no verifiable conservative is going to get a free ride through the confirmation process.

The test that we urge President Trump to apply to his choice for the Supreme Court is who among the potential nominees will have the judicial and intellectual horsepower that Justice Antonin Scalia brought to the Court?

To express your preference for a conservative Supreme Court nominee contact the White House through this link.

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