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Bench Memos

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9/11 and Supreme Court Appointments



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On this anniversary of 9/11, David B. Rivkin Jr. and Lee A. Casey explain in the Wall Street Journal why “Good Judges Are More Important Than Ever”.  A few excerpts: 

[O]ver the last 40 years judicial activism has brought the courts to the center of national policy making in virtually all aspects of life.  However, before 9/11, even the most activist judges generally did not attempt to drive the nation’s foreign and defense policy.

[Recent decisions] show an alarming and growing willingness by judges — who lack national security expertise and approach issues in relative isolation — to accept and decide matters hitherto left to the discretion of the president and Congress.  This makes future judicial appointments all the more critical, and Barack Obama offers bleak prospects.

The next president will determine the course of the Supreme Court and lower federal courts for decades to come. The framers of the U.S. Constitution believed that the judiciary would be the “least dangerous branch” because the judges commanded neither purse nor sword, and would exercise judgment and not will. In order to keep faith with the Constitution they drafted, all Americans, whatever their policy preferences, should agree that this is the judiciary’s proper role, and that foreign and defense policy must be left to the politically accountable president and Congress.


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