Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.”

Conservative Republicans, of course, will be buoyed by the support of media jocks like Rush Limbaugh and Glenn Beck. In a recent Newsweek article (April 13, 2010), Andrew Romano described Beck’s perpetual “paranoid” ranting about President Obama’s political agenda: “Last week Beck focused on two [Obama] conspiracy theories in particular. The first one was about how Obama can’t be ‘anything but a Marist,’ given that he’s spent his entire life surrounded by Marxists—his mother, his father, his grandparents, his neighbor (Frank Marshall), his pastor, his new spiritual adviser (Jim Wallis). The second was about how the ongoing boycotts of Beck’s show by various Democratic groups—labor unions, progressive evangelicals, Color of Change—are actually evidence of an unprecedented campaign by the ‘president and [his] administration to destroy the livelihood of a private citizen with whom they disagree.’”

The political hot-button term “judicial activism” has more often been used by republicans to demonize “liberal” judges who are often accused of inserting their social philosophy into their judicial decision-making. University of Chicago law professor and editor of the Supreme Court Law Review Geoffrey R. Stone in a recent The New York Times Op-Ed piece spoke of this phenomenon: “Liberals [Supreme Court] judges … have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.”  In other words, individual rights and protections the Bill of Rights was intended to address.

Professor Stone listed several of these historical liberal Supreme Court decisions: ending racial segregation, 1/ establishing the “one person, one vote” principle, 2/ prohibiting the censorship of the Pentagon Papers, and extending the right of due process of law to Guantanamo Bay detainees. 3/ Political conservatives point to these kinds of decisions by liberal Supreme Court justices as overriding legislative mandates because of their “empathy” for certain social views. As Professor Stone pointed out, President Obama was criticized by conservatives shortly before he appointed Justice Sonia Sotomayor to the court because he simply observed that a “sense of empathy” could contribute to judges fulfilling their responsibilities.

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