Bench Memos

NRO’s home for judicial news and analysis.

Conservatism and the Courts


Justice John Paul Stevens’s retirement announcement prompts a few thoughts.   First, it’s a reminder that Republican presidents (in the case of Stevens, Gerald Ford) have a pretty bad track record when it comes to appointing jurists to the high court. A good number of Republican-appointed justices have turned out to be consistent liberal activists and have done great damage to the Constitution and self-government. Democrats, on the other hand (at least since JFK) have consistently appointed liberal judicial activists. Is it any wonder that we still have a liberal-activist majority on the Supreme Court?   Second, it’s going to be interesting to see how President Obama satisfies the demands of the liberal Left for him to put another left-wing policymaker like Sonia Sotomayor on the Court. Sotomayor and the Obama administration pursued a confirmation strategy of having her repeat, over and over in her testimony, the approach to the judiciary outlined by Chief Justice John Roberts during his confirmation. They know that Americans overwhelmingly support a philosophy of judicial restraint, so even though she had a record of supporting — and engaging in — bald liberal judicial activism, all she had to do was testify that her approach was really the opposite. Now that her performance on the Court belies her testimony, it’s questionable whether that strategy will work again on the Senate and the American people, whose attitude is reflected in a sign I saw on a New Hampshire farm a few weeks ago: “The Obamanure is piling higher.”   Third, the upcoming Supreme Court nomination presents an interesting issue for the upcoming midterm Senate elections: It divides not only Republicans from Democrats, but also some Establishment GOP types from true conservatives who are willing to take a stand for the Constitution, the proper role of the Court, and judicial restraint. Marco Rubio has distinguished himself from Charlie Crist on this issue, saying Crist doesn’t get it; Crist has made liberal judicial appointments himself, so how can he be trusted to give the right “advice and consent” on what will inevitably be Obama liberal jurists?   And up in New Hampshire (site of the above-mentioned sign), Ovide Lamontagne, the only true conservative in a four-person GOP primary, is distinguishing himself today from the Republican Establishment favorite, Kelly Ayotte, on just this point.  Ayotte supported Sotomayor at the time her nomination was pending in the Senate, contending Sotomayor was well-qualified simply because she was a federal circuit court of appeals judge. (Ayotte also, as New Hampshire’s attorney general, advised Democratic governor John Lynch to engage in a Kelo-like taking of $110 million in private property to try to balance the state’s budget.) Lamontagne has criticized Ayotte both for supporting the Democratic taking (declared unconstitutional by the state supreme court) and for her support of Sotomayor.


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