Kane: Be wary of judicial activism in Stevens’ successor 

Supreme Court Justice John Paul Stevens’ announcement that he’s retiring left me quaking in my boots. If President Barack Obama is reelected in 2012, that means I’ll be quaking for eight straight years.

Already there’s been speculation about whom Obama may nominate to take Stevens’ place, but we already know the judicial temperament of his nominees. His first one, Justice Sonia Sotomayor, has a thing about white males.

As if her “wise Latina” crack weren’t enough, there’s her ruling in the Ricci v. Destefano case in New Haven, Conn. A group of firefighters — most of them white and male — passed a promotion exam and were denied promotions. Sotomayor was one of three judges on the Second Circuit who upheld a U.S. district court judge who sided with the city of New Haven, which threw out the test results and promoted no one.

It was as if Sotomayor were saying that white males have no rights “wise Latinas” were bound to respect, only in purtier, hi-falutin’ language. (Actually, neither Sotomayor nor the other two Second Circuit judges said anything; They just produced an unsigned opinion.) But when it comes to purty, hi-falutin’ lingo, there’s no one who can top our president, especially in his remarks about Stevens.

“(W)hile we cannot replace Justice Stevens’ experience or wisdom,” Mr. Obama said, “I will seek someone in the coming weeks with similar qualities — an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.”

The last 16 words in that passage are quite revealing. Loosely translated, they mean simply this: Obama will seek yet another justice who loves to legislate from the bench.

Actually, that characterization is much too kind. I’ve written this before, but it warrants repeating: Supreme Court justices of late have, in essence, taken a Constitution that expressly limited their power and hijacked it.

For years the debate has raged about “activist” judges vs. judges who show judicial restraint. But that’s not the conflict. This battle is between those judges who want to interpret the Constitution as it is written and those who want to keep it hijacked, rooting around in the “penumbra,” yanking out whatever rights they please and then bestowing them on the great unwashed.

That would be us. We are the great unwashed those hijackers of the Constitution look down upon. They are convinced they know what’s better for us than we do ourselves. That’s why they’ve taken it upon themselves to personally repeal the Ninth and 10th Amendments that reserve power and rights to the people and the states.

So it was the height of hypocrisy to hear Mr. Obama proclaim that his next nominee will be “someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Oh really? In 1973, ordinary citizens in the majority of states elected legislators who passed laws that either restricted or outlawed abortion. Seven Supreme Court justices took it upon themselves to drown out those voices and overturn those laws. The “powerful interests” our president seems so leery of are actually those judges, legislators and chief executives determined to shred the Constitution entirely.

There is one criterion, and one criterion only, I want in a Supreme Court justice, no matter whether it’s a Democratic or Republican president who appoints one. It’s a justice who will answer this question with a resounding “yes.”

Can we have our Constitution back now?

Examiner columnist Gregory Kane is a Pulitzer-nominated news and opinion journalist who has covered people and politics from Baltimore to the Sudan.


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Gregory Kane


Examiner columnist Gregory Kane is an award-winning journalist who lives in Baltimore.

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