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Bench Memos

NRO’s home for judicial news and analysis.

Souter and the Court



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As expected, Justice Souter is retiring, giving President Obama his first Supreme Court nomination just 3 months into his presidency.

Keep in mind:

1.  The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come, if he appoints radicals like Diane Wood, Sonia Sotomayor, and Elena Kagan.  A new Justice in this mold would just entrench a bad majority for a long time.

2.  If Obama holds to his campaign promise to appoint a Justice who rules based on her own “deepest values” and what’s in her own “heart” — instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.

3.  The President and Senators need to be careful about, respectively, nominating and appointing a hard-left judicial activist.  Americans who elected Obama may have done so out of fear for the economy or other reasons, but they did not elect him because they share his views on judges.  By a margin of more and 3 to 1, Americans want Supreme Court Justices who will practice judicial restraint and follow the law, not jurists who will indulge their own personal views and experiences in deciding cases.  

4.  As Senate Republican Leader Mitch McConnell has pointed out, a judge who decides cases based on her personal and political views, instead of what the law says, will have a hard time fulfilling her oath to dispense justice impartially.  Senators have a constitutional duty to rigirously scrutinize the nominee on this score, and vote “no” if the nominee cannot establish that she will follow the law, rather than her own values and beliefs, as the President has suggested.



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