Monday, June 8, 2009

Sotomayor: Only Part of Obama's Wicked Scheme for the Supreme Court (Part I)

I and many others have written about the genius of the Constitution of the United States of America, with its carefully explicit “vertical” separation of powers between the federal and state governments (see the Tenth Amendment) and its “horizontal” separation of powers on the federal level between the legislative (Article I), Executive (Article II) and Judicial (Article III) branches.

This, in lay terms, is what civics classes used to call “checks and balances.” Textually, the federal government possesses expressly delegated powers, and all other powers are reserved to the states or their people. On the federal level, no branch is supposed to exercise the powers of the other(s). Congress enacts the laws, the President faithfully executes them (and runs the foreign affairs shop), and the courts (especially the Supreme Court) interpret federal statutes and the Constitution.


At least in theory.

Too often Congress has abdicated its legislative role, handing it off to the alphabet world which actually runs our overregulated country. Think FCC, FDA, SEC, NLRB, FEC, FAA, etc.

Too often the President has acted beyond the scope of even arguable powers. Think FDR’s closure of the banks, and Truman’s seizure of the steel mills

Too often the Supreme Court has “interpreted” the Constitution to invent a-textual “rights” the Founders never dreamed of. Think Miranda v. Arizona, Roe v. Wade. Think “prisoners’ rights” and welfare on demand. This from the branch that is supposed to check the transgressions of the other branches, and is ultimately responsible for deciding what the Constitution allows and disallows.

Not counting the soon-to-be-gone and unlamented David Souter, an indefensible appointment by President George H.W. Bush, there are eight other justices.

The “conservatives” are Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito.

The “liberals” are Associate Justices Stevens, Breyer and Ginsburg.

Then there’s the “liberative,” Associate Justice Kennedy, whose votes swing this way and that.

Ginsburg is not well, and many anticipate her retirement soon after the current term ends in a few weeks. Another seat for Obama to fill.

Stevens is nearly ninety. Soon he will either step down or, if like William O. Douglas he is unable to fulfill his arduous duties, he will be gently nudged out. Another seat for Obama.

The conservatives are significantly healthier than Ginsburg and considerably younger than Stevens. Ditto Kennedy.

Per capita, there are more conservatives on the Supreme Court than in Congress.

In the House, Democrats have a substantial majority, and the keys to the kingdom: committees, hearings, investigations, funding, impeachment, internal ethics inquiries into Members’ conduct. They own the game.

In the Senate, Democrats have a comfortable majority, save for being able to invoke closure. On straight party-line votes—assuming Minnesota seats Franken, and when Burris is defrocked the Illinois governor appoints another Democrat—the party of Jimmy Carter will be able to break a Republican filibuster.

The House’s Speaker, Nancy Pelosi, is both militantly left and shamelessly self-aggrandizing, and will stop at nothing to have her way. More than a few of her minions, Jerrold Nadler for example, are no better.

The Senate’s Majority Leader, Harry Reid (in electoral trouble in his own state), is an ethically challenged partisan who combines those charming qualities with terminal dimwittedness. Working closely with Reid on judicial nominations is the estimable Charles E. Schumer, an architect of the Sotomayor nomination.

In sum, the Democrat Congress is in control of our lives and fortunes, though thankfully not our sacred honor, and will use their power, as it has already, to march in lockstep with the agenda of their leader, Barack Obama.

As an ineffectual counterweight to the Democrat Party, we have the Republicans.

Today’s Republican Party is not a “Big Tent” (if it ever was), but rather what often happens inside one: a circus.

In the last presidential primary, the Republican Party coughed up five-and-a-half candidates (excluding Hunter, Keyes and Tancredo): Giuliani (New York’s favorite Liberal Party candidate), Romney (former card-carrying liberal), John McCain (RINO pal of environmentalists and enemy of free speech), Ron Paul (current card-carrying libertarian) and Fred Thompson (who joined the dance late and left early).

After eight years reign by the Republican Party’s “compassionate conservative” President, George W. Bush, and the not-so-sub rosa influence of his much-touted brilliant “architect,” Karl Rove, and several years of Republican control of much of Congress and the governorships, it was apparent that not a single candidate holding even semi-consistent conservative principles had been groomed for the 2008 nomination. (My nose is still sore from holding it when I pulled the lever for McCain.)

Following McCain’s ignominious performance in the general election, the Republican Party turned to its new non-conservative chairman, Michael Steele, a naïve “can’t we all get along” compromising politician’s politician who will be outmaneuvered by the Democrats’ street fighters.

In the House we have a few good guys, of both genders, but they are as outnumbered as Texans at the Alamo.

In the Senate, the hapless Mitch McConnell, who barely won reelection, has yet to learn the Reid-Schumer-like lesson of “attack, attack, attack, and never give in.” His man on the Judiciary Committee is Jeff Sessions, who even in advance of the Sotomayor hearings has apparently ruled out a concerted attempt to derail her nomination.

Which bring us to the man the Democrats are in thrall to: POTUS Barack H. Obama.

During the 2008 presidential primary Osama was raked over the coals on every imaginable issue including constitutional (e.g., “native born” citizen), personal (e.g., Ayers, Dohrn), transparency (e.g., his academic accomplishments), ethics (e.g., eliminating his opponents), mentors (e.g., Tony Rezko), legal (e.g., fundraising), political influences (e.g. Saul Alinsky) and more.

In addition to obfuscating about these issues, candidate Obama was hardly more forthcoming about his core poliical, economic and jurisprudential values.

Now we know, explicitly.

Politically: “We won, and can do whatever we want.”

Economically: As he told Joe the Plumber during the campaign, “It’s good to spread the wealth around.”

Jurisprudentially: Judges should decide empathetically, whilst making policy (rather than the politically accountable Congress).

A formidable agenda, with only one stumbling block: the Supreme Court.

To accomplish that agenda, above all else Obama must control the Supreme Court of the United States.

Congress can give our former compassionate conservative President and his Treasury Secretary unchecked power to raid the public fisc to stave off automakers’ bankruptcy, or use for any other purpose they see fit—but is it constitutional? The Supreme Court decides.

Obama can fire the president of General Motors—but is it constitutional? The Supreme Court decides.

Congress and Obama can spread the wealth in myriad ways, take over private companies, nationalize banks, favor friends and punish enemies—but is it constitutional? The Supreme Court decides.

Virtually every one of Obama’s socialist/fascist plans for the American economy, financial system, culture and other aspects of our lives are subject to judicial scrutiny—eventually by Obama-appointed federal judges, merrily making policy and exercising their sizeable reservoirs of empathy.

But first, Obama needs absolute control of the Supreme Court of the United States.

He will not achieve that even with the confirmation of Sonia Sotomayor, perhaps the best choice for advancement of Obama’s agenda.

Concerning Sotomayor, a few weeks ago I wrote in this blog an essay entitled “Sonia Sotomayor and the Ghost of Harriet Miers” that:

In a 2007 speech to Planned Parenthood, candidate Obama told us exactly what President Obama would do about Supreme Court nominations: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)

Now he’s actually done it, with his nomination of Sonia Sotomayor.

While many of us knew that while she sat first on the federal district court, and for the last decade on the United States Court of Appeals for the Second Circuit, she lacked appropriate judicial temperament (to use a phrase from the Bork confirmation hearing), was no intellectual, viewed the role of judges as akin to legislators, believed that race and gender trumped precedent and sound judicial decision-making, had indefensible political relationships, and otherwise had no business being a federal judge (let alone a Supreme Court justice), now anyone who can read (and expends the effort to do so) knows Sonia Sotomayor’s manifest deficiencies. (See

Given her objective deficiencies, actually because of them, Sotomayor will help Obama obtain control of the Supreme Court.

But she alone is not enough.

Even if Obama replaces Ginsburg with a Sotomayor II, Stevens with a Sotomayor III and Breyer with a Sotomayor IV (which he could conceivably do in four years, let alone eight), while the four conservatives remain on the bench and Kennedy does not go completely mad, the President’s agenda for this country could be thwarted.

This means there’s only one way Obama can seize unquestioned control of the Supreme Court.

Barack H. Obama must emulate the cynical, utterly un-American but not unconstitutional tactic of the predecessor with whom he is most often compared: Franklin Delano Roosevelt.

Barack H. Obama must “pack” the Supreme Court of the United States.

To be continued………………………….