The New York Times published an editorial last week revealing another plan by the Democrats to take back control of the Supreme Court. The basic scenario is that if the Supreme Court continues to lean right (originalist), they'll attempt to add new justices to the court the next chance they get. Here's a little background.
The current Court has nine justices on it. The number of members on the court isn't dictated by the Constitution, but rather by Congress, which is one of the checks and balances of our system of government. There have been a number of modifications to the court over the past two hundred years, with the court ranging from 5 to 10 justices, landing on our current number in 1868.
So, if this is a perfectly legal and acceptable -- as well as precedented -- action, what's my point? My point is simply to illustrate what you will get if Democrats control both Congress and the White House. As I've blogged about before, activist judges are extremely dangerous to the American way of life and the freedoms we possess per the Constitution. It should come as no surpise that a Democrat is likely to lean toward (and appoint) activist judges, just as Clinton did. It takes only a simple majority (51 votes) to change the number of justices on the Supreme Court, so it would be very possible if a Democrat won the White House in 2008 while retaining even a slim Congressional majority.
Picture this scenario: Hillary Clinton wins the Presidency in 2008 and the Democrats retain their majorities in both houses of Congress. Clinton could drive through a change that would increase the Supreme Court to 11 justices. She would then likely appoint far-left activist judges to fill the two new positions, stacking the Court with a 6-5 activist judge majority. It's not too far-fetched, if the Democrats win the next election cycle.
If you think that activist judges -- who impose their own bias on huge majorities of voters on critical issues including gay marriage, eminent domain, and civil rights for non-citizen terrorists -- are a problem now, just wait until the court is deliberately stacked toward the activist side.
Of course, we now know that Hillary is out of the picture, at least in terms of making the appointments. She could very well become one of them, though, appointed by Barack Obama.
On a related note, Thomas Sowell informs us about the kind of judges Obama will appoint (emphasis mine):
One of the biggest and most long-lasting "change" to expect if Barack Obama becomes president of the United States is in the kinds of federal judges he appoints. These include Supreme Court justices, as well as other federal justices all across the country, all of whom will have lifetime tenure.
Sen. Obama has stated very clearly what kinds of Supreme Court justices he wants — those with "the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."
Like so many things that Obama says, it may sound nice if you don't stop and think — and chilling if you do stop and think. Do we really want judges who decide cases based on who you are, rather than on the facts and the law?
If the case involves a white man versus a black woman, should the judge decide that case differently than if both litigants are of the same race or sex?
The kind of criteria that Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime that neither they nor anybody else committed.
Didn't we spend decades in America, and centuries in Western civilization, trying to get away from the idea that who you are determines what your legal rights are?
What kind of judges are we talking about?
A classic example is federal Judge H. Lee Sarokin, who could have bankrupted a small New Jersey town because they decided to stop putting up with belligerent homeless men who kept disrupting their local public library. Judge Sarokin's rulings threatened the town with heavy damage awards, and the town settled the case by paying $150,000 to the leading disrupter of its public library.
After Bill Clinton became president, he elevated Judge Sarokin from the district court to the Circuit Court of Appeals. Would President Barack Obama elevate him — or others like him — to the Supreme Court? Judge Sarokin certainly fits Obama's job description for a Supreme Court justice.
A court case should not depend on who you are and who the judge is. We are supposed to be a country with "the rule of law and not of men." Like all human beings, Americans haven't always lived up to our ideals. But Obama is proposing the explicit repudiation of that ideal itself.
That is certainly "change," but is it one that most Americans believe in? Or is it something that we may end up with anyway, just because too many voters cannot be bothered to look beyond rhetoric and style?
We can vote a president out of office at the next election if we don't like him. But we can never vote out the federal judges he appoints in courts across the country, including justices of the Supreme Court.
The kind of judges that Barack Obama wants to appoint can still be siding with criminals or terrorists during the lifetime of your children and grandchildren.
The Constitution of the United States will not mean much if judges carry out Obama's vision of the Constitution as "a living document"— that is, something that judges should feel free to change by "interpretation" to favor particular individuals, groups or causes.
We have already seen where that leads with the 2005 Kelo Supreme Court decision that allows local politicians to take people's homes or businesses and transfer that property to others. Almost invariably, these are the homes of working class people and small neighborhood businesses that are confiscated under the government's power of eminent domain. And almost invariably they are transferred to developers who will build shopping malls, hotels or other businesses that will bring in more tax revenue.
The Constitution protected private property, precisely in order to prevent such abuses of political power, leaving a small exception when property is taken for "public use," such as the government's building a reservoir or a highway.
But just by expanding "public use" to mean "public purpose" — which can be anything — the Supreme Court opened the floodgates.
That's not "a living Constitution." That's a dying Constitution — and an Obama presidency can kill it off.
Here's the point. It only takes a simple majority of Congress to change the number of justices on the Supreme Court. There are currently nine justices, with a general breakdown of four originalist, four activist, and one flip-flopper (Kennedy). Barack Obama has openly pledged to appoint activist judges who reinterpret the law as they see fit (not according to what the Constitution actually says). With a supermajority in Congress, it is likely that Obama could increase the number of justices to 11, 15, or whatever he could persuade Congress to go along with. Given that the Left's favorite tool of implementing liberal policies is the court system (since they can't win at the ballot box), and that the Supreme Court is the final arbiter of legal decisions, we're looking at an irrecoverable control of the court system if this happens.
Now, let me also remind you of the recent revelation of Obama's statements in 2001 that he regrets the Supreme Court hasn't gotten more involved in economic redistribution. In that interview, Obama said that legislating economic redistribution was too lengthy a process, and that the courts could provide that redistribution much more quickly; that's why he was disappointed about the Supreme Court's lack of initiative.
If you want to see how fast your rights get taken away, just wait until an Obama-packed 11 member Supreme Court gets busy.
There's my two cents.
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