Freedom Line Blog

In CFIF’s Liberty Update last week, we highlighted how President Obama isn’t so much “pulling us out of the ditch,” but rather setting our nation’s car on fire.  Instead of spending his time claiming credit for our inevitable cyclical rebound, Obama should recognize that his policies of higher spending, taxation, regulation and debt are only subduing it. To illustrate, we contrast the remarkable gross domestic product (GDP) growth during the Reagan recovery delivered by tax cuts, reduced regulation and a stronger dollar versus our current stagnation and possible “double-dip” recession.

Comparing unemployment trends then versus now provides another vivid illustration of the toxic effect of the Obama-Pelosi-Reid economic agenda.  From December 1982 to June 1984 – the first 18 months of the Reagan recovery – U.S. unemployment plummeted rapidly from 10.8% to 7.2%.  In contrast, over 13 months since our current economic rebound commenced in July 2009, U.S. unemployment has stagnated from 9.4% to its current 9.5%.  Of course, it is theoretically possible that unemployment will plummet by three percentage points over the next five months to match the Reagan recovery, but not even Joe Biden is silly enough to predict that.

It’s no mystery how to unleash America’s economic vigor and bring recovery:  less government and more economic freedom.  It’s just a matter of electing leaders who will actually pursue it.

Today’s Senate vote to confirm Elena Kagan to the U.S. Supreme Court was unsurprising because a majority of senators had already committed their “Yea” votes.  Curious, though, was the support of Senator Judd Gregg (R-NH).  You may remember that Gregg was the man who turned down President Barack Obama’s offer to be Commerce Secretary, and then set about hammering the Obama Administration’s fiscal profligacy.

He also opted not to seek reelection after his term ends next January.  Here’s Gregg’s statement on why he voted for Kagan:

Senator Gregg stated, “The Senate’s duty to provide advice and consent on Presidential nominations to the Supreme Court is one of its most significant constitutional responsibilities.  Separate and distinct from its legislative function, the confirmation process requires the Senate to put aside politics and conduct a frank and evenhanded review of the nominee’s record, qualifications and demonstrated ability to apply the law in a fair and impartial manner.

“I have met personally with Solicitor General Elena Kagan, reviewed her record, and followed her testimony before the Senate Judiciary Committee.  During this process, Ms. Kagan has pledged that she will exercise judicial restraint and decide each case that comes before her based on the law, with objectivity and without regard to her personal views.  She also has served the American people under two different administrations and has a strong legal academic background.   She is qualified to serve on the U.S. Supreme Court.

“Ms. Kagan and I may have different political philosophies, but I believe that the confirmation process should be based on qualifications, not ideological litmus tests or political affiliation.  I will vote for her confirmation.”

Please.  Kagan served in two Democrat administrations and published three articles in nearly two decades as an “academic.” The only qualifications Kagan has to be an Associate Justice is a Harvard law degree and an uncanny ability to land jobs for which she has no preparation.

In today’s Wall Street Journal constitutional law professor Randy Barnett makes an intriguing connection between the anti-government anger of millions of Americans and a currently accepted legal theory that may overturn ObamaCare’s individual mandate.

He notes that twice in the 1990s, the high court struck down federal mandates against state governments—one requiring legislatures to pass laws dealing with the transport of nuclear waste, and one mandating that police conduct background checks on gun buyers—saying they amounted to unconstitutional “commandeering” under the 10th Amendment. That amendment is usually thought of as protecting states’ rights, but note the final four words: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

Kudos to Barnett for providing a legal rationale for the frustration felt by millions of Tea Party activists.  Hopefully, swing voter Justice Anthony Kennedy is listening.

Who else but quixotic Senator Lindsey Graham (R-SC) would use the following justification?

Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP “yes” vote on President Obama’s nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.”

Is it wise to support someone you fundamentally disagree with, and who you think will misinterpret the Constitution?  Is it honorable to vote one way in committee, and then flip-flop when the vote is before the full Senate?

And make no mistake; Graham did this because he’s trying to curry favor with the Obama Administration on another deal.  Already President Barack is using the fig leaf of Graham’s lone Republican “Aye” vote to claim Supreme Court nominee Elena Kagan has “bipartisan” support.

Though Graham won’t be up for reelection until 2014, Chris Cilizza is already speculating on possible primary opponents.

Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents.  In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.

Justice Clarence Thomas takes a different approach.  His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process.  The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago).  In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14^th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.

In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.

Thus, if it’s true that there are certain fundamental rights – like the 2^nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause.  Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.

All lawyers should strive to be so helpful.

The United States Supreme Court’s recently-completed term provided those who treasure individual freedom with much reason to celebrate, including the affirmation of Second Amendment protections against state infringement in McDonald v. City of Chicago.

Another 5-4 decision announced the same day as McDonald received less celebration, but not because it was any less worthy.  In Rent-a-Center, Inc. v. Jackson, the Court dealt a justified and much-needed blow against the hyper-litigious trial lawyer industry in America.   At issue in Jackson was whether the threshold question of enforceability of voluntary alternative dispute resolution agreements could be decided by arbitrators, or instead by already-overburdened courts.

Naturally, trial lawyers loathe alternative dispute resolution agreements because they reduce the likelihood of runaway “jackpot jury” awards and reduce the oppressive costs of litigation, thereby lowering settlement value.  Although the trial lawyers’ bar dishonestly claims that alternative dispute resolution “deprives plaintiffs of their day in court,” that is simply not true.  Arbitrators who decide such cases are typically experienced judges rather than random jurors off the street, and the full array of discovery and remedies are typically available to plaintiffs who have truly suffered.  The deciding arbitrator is also agreed upon mutually by the parties beforehand, thus ensuring an unbiased decisionmaker.  But because the chance of a runaway jury award is reduced, ambulance chasers absolutely loathe them.  And had the Supreme Court ruled that overburdened courts must determine threshold questions of enforceability of such agreements, trial lawyers would have reason to cheer.

Fortunately, the Supreme Court ruled correctly, albeit by only a frightening 5-4 margin.  Writing for the majority, Justice Antonin Scalia noted that plaintiff Jackson signed the alternative dispute resolution voluntarily, and it made no sense to distinguish enforceability questions from other matters on which disputes center.  For the dissenting minority, Justice John Paul Stevens claimed that the result was “unfair,” as if the plaintiff had no ability to walk away from the agreement when it was offered to him.

Alternative dispute resolution is an underappreciated way to reduce outrageous “jackpot justice” awards in a fair, speedy, inexpensive way, which is why trial lawyers detest them.  Come to think of it, trial lawyers’ hysterical opposition to alternative dispute resolution is evidence enough of their value.  A hearty “bravo” to the Supreme Court.

In an interview with CFIF, Ed Whelan, president of the Ethics and Public Policy Center, discusses what makes for a truly great Supreme Court Justice and the nomination and confirmation process as it relates Elena Kagan.

Listen to the interview here.

These days, it seems like war is only the extension of politics by other means; except that even the means are political.

Last week, President Barack Obama minimized conservative harrumphing after firing General Stanley McChrystal by appointing General David Petraeus as his replacement.  Though politically savvy, CFIF Senior Fellow Troy Senik correctly notes that reassigning Petraeus may be a pyrrhic victory since most of the conditions for successfully implementing his counterinsurgency strategy are missing.  When he gets in country, Petraeus’ biggest enemy won’t be the Taliban or a corrupt Karzai government; it’ll be trying to deliver a victory conservatives can stomach on a timetable and troop count demanded by liberals.

Heading back to Washington the war on rationality gets even rougher.  This morning four out of five Supreme Court right-of-center justices voted to extend the Second Amendment’s guarantee of an individual’s right to own a gun to the several states.  The result produces two effects.  First, complete government bans on gun possession are unconstitutional.  Second, eight of the current justices are now on record supporting a liberal theory of constitutional jurisprudence: Substantive Due Process.  Only Justice Clarence Thomas opted for a textually supported, historically rooted commonsense reading of the Fourteenth Amendment.  Since no one tried to dispute his reasoning, it can be assumed that everyone accepted his conclusion – they just didn’t like his premises.

The only element these storylines have in common is one man bearing quiet witness to the power of clear thinking.  While the political class may be unable to sustain a coherent framework for addressing pressing issues, it is a comfort knowing that at least some of those they appoint are capable – and willing – to tackle important matters with precision and daring.

Well, not actually.  But reading this list of queries makes one pine for a Senator Will on the Judiciary Committee when its members meet on Monday to begin Supreme Court nominee Elena Kagan’s confirmation process.

Here’s a sampling:

• In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

• Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

• Is there anything novel about the Arizona law empowering police officers to act on a “reasonable suspicion” that someone encountered in the performance of the officers’ duties might be in the country illegally?

• The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes. Do you agree?

• Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo Plessy v. Ferguson’s 1896 ruling that segregating the races with “separate but equal” facilities is constitutional?

… comes courtesy of the Heartland Institute’s Ross Kaminsky over at Human Events.

In a piece with the wonderfully direct title “Can Kagan be Trusted to Defend the Constitution?”, Kaminsky takes the would-be justice to town on her record as Solicitor General and as a legal academic.

The whole piece is worth reading (especially for two extended quotes in which Chief Justice Roberts excoriates Kagan’s legal reasoning from the bench). But what may be most provocative is this little nugget:

Kagan’s hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government’s motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language “what view of the 1st Amendment accounts for the court’s refusal to allow, by means of restrictions, the redistribution of expression?”

You read that right; she said “redistribution of expression.”

She continues: “The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity.” You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing “diversity of opinion”.

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: “If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse.”

Be afraid, America. Be very afraid.

What Supreme Court nominee Elena Kagan lacks in the way of academic writing, she (apparently) more than compensates for with her lawyerly output during her time in the Clinton White House Counsel’s Office.  Recalling that former President George W. Bush shared over 50,000 pages of material associated with now Chief Justice John Roberts’s time as a lawyer in the Reagan White House, Byron York of the Washington D.C. Examiner reports which way precedent points in divulging Kagan’s work product.

“There is now a precedent that a White House lawyer’s materials will be produced,” says Bradford Berenson, an associate counsel in the Bush White House. “I think it will be very difficult for the Obama administration, given everything they’ve said about transparency and openness, to withhold these documents.”

Before anyone starts salivating over the thought of reading thousands of legal memos, remember that the current Oval Office occupant is not inclined to share information.  Unlike President Bush, Obama can’t be bothered to take a single question from the press after signing the Freedom of the Press Act.

Constitutional controversy over executive privilege, anyone?

Today, in an opinion written by Justice Stephen Breyer, the Supreme Court issued a ruling in the case of US v. Comstock, which held that Congress has the power to civilly commit sex offenders beyond the period of the sentence received for their crime.  As Cato’s Dr. Roger Pilon points out:

The problem, as Breyer grants, is that Congress has only certain enumerated powers, and the only power it has to criminalize conduct, beyond the three crimes mentioned in the Constitution, is pursuant to one of those enumerated powers — in particular, through the last of its 18 enumerated powers, its power to enact laws that are “necessary and proper” for “carrying into execution” one of the previous 17 enumerated powers or ends. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constitutionally authorized powers.

The issue of enumerated powers is at the core of our rapidly declining liberty.  Today’s decision is merely the latest in a long line of rulings that concedes to Congress powers that cannot be found in the text of the Constitution.  In dissent, Justice Thomas joined by Justice Scalia notes:

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.

Free from constitutional restraint, there is seemingly no end to Washington’s reach.  Sure, today they’re locking up sex offenders, but maybe the next decision validates ObamaCare, which also lacks a constitutional basis for congressional action.

There are a variety of other constitutional ways in which states can ensure the public is protected from dangerous criminals.  So while many might be inclined to cheer a court decision that extends the lockup of some of the country’s most despicable and habitually dangerous criminals, the endless expansion of federal power is a crime against our freedom.

And I don’t know if I like it.  Usually, the younger, more effete version of John McCain likes to flash his maverick status all over controversial domestic policies by siding with Democrats on cap-and-trade, immigration reform, and civilian trials for (some) terrorists.  Today, though, he reminds America that, yes, he is still a Republican.

In a blinding moment of clarity, the other Senator from South Carolina concisely – and correctly – identified the proper route for Ninth Circuit judicial nominee Goodwin Liu.

“I’m in the camp that you can be an active Democrat … and still sit on the bench,” Graham said. “But this guy’s a bridge too far for me. He should take those views and run for office.”

This from a Republican who voted for Supreme Court Associate Justice Sonia Sotomayor!  To be fair, perhaps if Sotomayor where on record as identifying constitutional rights to “education, shelter, subsistence, health and the like, or to the money these things cost,” or imposing perpetual racial quotas, maybe Graham would have voted no on her too.

Graham’s criticism is a perfectly stated counterargument for the Leftist lawyers and judges who think the courts are where laws are made.  They’re not.  Reading the Constitution, Article I, clears that up.  If Professor Liu really wants to “change” America through law, he should saddle up and challenge Senator Diana Feinstein when she’s up for reelection.  Otherwise, stick to writing academic thought pieces at Berkeley.

Kudos, Senator Graham; who knew you had it in you?

Demonstrating again that transparent government was a hollow campaign promise, the White House has released a video of its own “interview” with Supreme Court nominee Elena Kagan.  The Solicitor General sat down with White House bloggers to share some life background and general thoughts on the law peppered with White House talking points, including my favorite, that she understands how law affects “ordinary people.”

The lack of media access to this critical nominee should not come as a surprise, as Obama himself has not conducted a live solo press conference since last July.  The kicker is the way the administration seeks to manipulate media through such transparent antics as the Kagan interview.  This lack of accountability to the public has even got the folks at CBS riled up:

“This White House has taken its use of the web to a new level with this move,” said CBS News White House correspondent Peter Maer. “The ultimate unfiltered message. Kagan ‘in her own words’ without anyone else’s words.”

Adding:

Doing so allows the administration to better control its message – and, in this case, avoid any uncomfortable questions for their Supreme Court nominee.

CBS should be careful.  Obama doesn’t take kindly to dissenters.

No, President Barack Obama’s Supreme Court nominee is not moonlighting as a shill for the latest John Grisham novel.  Instead, a law review article of hers peddles the notion that federal courts should try to divine a government’s “intent” when deciding whether a regulation on speech is constitutional.

According to CSNEWS:

In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

You’d probably need a complex framework to figure out the single intent of a law that results from a process including hundreds of people, all with different backgrounds, educational levels, and points of view.  Indeed, the exercise is a legal fiction whose use stretches back to the New Deal Court where justices poured over legislative histories, committee reports, and floor statements in the vain attempt to arrive at one, definitive purpose.  Discovery of that purpose enabled the enlightened justice to then judge whether that purpose was proper.

You can see the potential for abuse.  If judges signal they will go beyond the plain text of a law to discern its intent, then members of Congress and the President will do everything they can to shade the law’s meaning their way.  Vapid floor statements, detailed presidential signing statements, even carefully worded statements of purpose in sub-committee reports suddenly become more important than the actual words that everyone agreed to.

And who gets to pick the “right” document for finding the government’s intent?  None other than an unelected, un-consulted judge.  Nice work if you can get it.  We’ll see if Elena Kagan does.

Following up on Ashton’s excellent post yesterday, one of the most salient facts about President Obama’s new Supreme Court nominee, Elena Kagan, is her total lack of a track record. This is not to indict Ms. Kagan for her lack of judicial experience –– more than a third of the justices in the Supreme Court’s history have come from outside what Patrick Leahy refers to as the “judicial monastery” (a phrase too sterling to have been coined by a U.S. Senator — at least in the era since Daniel Patrick Moynihan’s passing).

Rather the issue is — apart from Harvard Law’s ROTC scandal while she served as dean– that Kagan doesn’t seem to have an observable opinion on anything. As CNN and New Yorker legal analyst Jeffrey Toobin — a friend of Kagan’s since law school — observed upon news that she would be the nominee:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

What Toobin regards as personal anecdotage, however, the New York Times’ always interesting (and often perplexing) David Brooks sees as pathological. As he says in the coda of today’s column:

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

As Ashton mentioned yesterday, the same criticism could be equally applied to the pre-presidential Obama. But this isn’t just the provenance of the left. John Roberts presented much the same sort of blank slate prior to his elevation to the Court. And those already clamoring for a Marco Rubio presidential bid are running the same risk.

Consent of the governed is a meaningless concept when the governed aren’t told what they’re consenting to. If the Kagan nomination is a further indication that we’re living in an age of empty political vessels, the country will be worse off for it.

Admit it; the headline isn’t impossible to believe.  It’s even less surprising to realize that all of the major criticisms of the Manchurian Candidate-turned-President – lacks relevant experience, a paper trail, or any notable accomplishment aside from self-promotion –are being lodged against his most recent Supreme Court nominee Elena Kagan.  Sure, as an Assistant White House Counsel, former Harvard Law dean, and Solicitor General she’s held some important positions.  But a light scrubbing of that parchment is revealing almost no key accomplishments with any of them.

After reading all of Kagan’s scholarly publications in two decades as an academic – three law review articles, two small essays, and two brief book reviews – law professor Paul Campos makes this observation about its quality in The Daily Beast:

At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.

How Obama-esque.  Until, that is, ultimate power is achieved and the offending can begin in earnest.

Apparently, President Obama’s penchant for dithering is contagious.  Solicitor General and potential Supreme Court nominee Elena Kagan has failed to respond to the Court’s request for a brief describing the Administration’s view on another Arizona immigration law.  (This one fines employers for hiring illegal immigrants.)  Now that the U.S. Chamber of Commerce is fast-tracking an appeal of the Grand Canyon State’s newest attempt to enforce federal law, Kagan very likely won’t be able to ignore taking a side.

Surprisingly, though, the former Dean of Harvard Law School has written or said scarcely anything about law in her two decades as a legal academic.  From the L.A. Times Supreme Court reporter David Savage:

She does not have a record as a judge or legal advocate, and she did not write widely on legal topics, potentially making it difficult for Republicans to oppose her if she is nominated.

Shouldn’t such a statement knock her out of contention?

So far, all we know about Kagan is that she has establishment Ivy League credentials, holds fashionable elite positions, knows the right people, and is a member of a favored Democratic minority group.  Apart from a vague reputation as a “consensus builder” at Harvard, she barely has a year under her belt as an appellate advocate.  Isn’t it a little early to promote her?

C’mon; it’s not like she’s running for President of the United States – this is important!

According to a book review she wrote back in 1995, Supreme Court short-lister Elena Kagan wants to judicial nominee hearings to get back to the good ole’ days of Robert Bork.  As reported by ABC News:

Kagan argues that the Bork hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

“The real ‘confirmation mess’ ” she wrote, “is the gap that has opened between the Bork hearings and all others.”

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”

At bottom, Kagan called for an open, “educative” process that put differing constitutional philosophies under the microscope.  I’m all for it; so too are most conservatives.  It will be interesting to see if and when Kagan is nominated by President Barack Obama to fill the next vacancy if she still thinks that way when it’s her turn to defend her views.

After all, Bork was the last nominee to make it to the hearing room and not be confirmed.

Many Americans unfortunately view elections in too limited a perspective, assuming that mistakes can simply be reversed at the next election cycle.  Today’s announcement by United States Supreme Court Justice John Paul Stevens that he will retire reminds us that elections can be far more consequential and long-lasting than many voters assume.

Less than halfway into his tenure, Barack Obama will already have nominated almost one-quarter of the Supreme Court.  That is an enormous impact for the most radical President in American history.  Last year, his “empathetic” nominee Sonya Sotomayor saw her most notable ruling, the New Haven firefighter “affirmative action” decision, embarrassingly reversed by the Supreme Court in the midst of her confirmation process.  Yet she was nevertheless confirmed.  The fact that these are lifetime appointments makes this fact all the more alarming.

Our collective task in the upcoming months is to ensure that:  (1) the dangerous judicial philosophy of Obama’s nominee is fairly and thoroughly illuminated, (2) that we stand up for the principles of individual freedom and Constitutional fidelity just as strongly as we stood against ObamaCare in nearly stopping it despite overwhelming Democrat majorities, and (3) that Americans’ eyes are opened to the way in which Obama seeks to alter America for decades into the future.  This important battle now begins.