As I write, America’s chattering classes are wondering, worrying, and waiting with bated breath to see whether President Obama’s pick for Supreme Court Justice, New York City’s Sonia Sotomayor, will be thought fit by the Senate to replace retiring Justice David Souter, the man best known as the private-property seizing ogre of Kelo fame.
Our country’s media outlets have been in overdrive, pouring out a torrent of information regarding Sotomayor: her upbringing in a Bronx housing project, her love of the New York Yankees, favorite color, food, movies, ethnic background, everything, in fact, but her view of the Constitution that she will ostensibly protect from political assault. Luckily, there is no need to rely on the news media to learn her view about what W is said to have called”a goddamn piece of paper.”
Mr. Obama spelled out his main requirement for the job in his book, “The Audacity of Hope”; to wit, “the Constitution … is not a static but rather a living document, and must be read in the context of an ever-changing world” (p. 90). Any new justice must, in order to pass Obama’s interview, adhere to the same blase attitude towards the law. Doubtless, Sotomayor does, else she would not have been chosen.
An “activist” president, whether of the left or right wing, must have as an ally a court that does not take a hard view that A means A. He requires a court that says A means A, unless our “ever-changing world” (meaning the whims of the powerful) wishes it to mean something else.
This reactionary view, deeply popular with America’s political elite, leaves a hole in the law that any sort of mischief can be driven through. What sort of law changes and morphs with “an ever-changing world”? What sort of protection does that afford the working masses from the endless predations of the political class?
This lack of a solid legal foundation allows Mr. Obama’s “I support freedom of speech” on page 4 to morph, by page 90, into “it [the Constitution] doesn’t tell us what such freedom means in the context of the internet.” A reading of his book put to rest my wonder as to how Obama, a former professor of constitutional law, can support the destruction of our right to trial by jury, not to mention toleration of domestic spying on Americans, and the Bush doctrine of preemptive war.
Each and every lawless act, certain to be followed by others yet unknown, will find in the Obama administration as familiar and friendly a home as it did in W’s, doubtless fully endorsed and supported by Sotomayor.