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This Week in Liberal Judicial Activism—Week of July 23



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July 25      1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.  

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter:  Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.”  His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary”.  On voting rights, he “was willing to defend the indefensible.”  He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade.  He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter has been far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter has read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

 

July 28      2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices.  But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.”  Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”   

 

July 29      1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court.  Breyer replaces retiring Justice Harry A. Blackmun.

It’s noteworthy that President Jimmy Carter nominated Breyer to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981.  Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit and set him on his path to the Supreme Court.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit.  With only two Senate Democrats voting yes, the cloture vote fails.  Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

 

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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