Americans look for Supreme Court to restrain federal power, not expand it

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By Jeff Sessions
Friday, May 7, 2010

The breathtaking expansion of government -- highlighted by record federal spending and a dramatic new federal role in the health-care system -- is a source of deep concern across the political spectrum. People are increasingly worried that Washington is exceeding the limits set by the Constitution, asserting too large a role in American life.

So when President Obama announces his next Supreme Court nominee, the American people will want to know whether he is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers, or whether his nominee is an activist who will shed a judge's neutral, constitutional role to push a progressive policy agenda.

When the president nominated Sonia Sotomayor to the court last May, he said he wanted a justice who would decide cases based on her sense of empathy. But the empathy standard was soon rejected by the American people for what it was: license for unaccountable, lifetime-appointed judges to impose their political and social preferences from the bench.

Despite widespread repudiation of the empathy standard -- including an explicit rejection from Sotomayor -- the president has not retreated from this view. Instead, he has searched for new ways to describe the same flawed idea.

President Obama said recently that his court nominee must have "a keen understanding of how the law affects the daily lives of the American people." This is nothing more than another thinly veiled attempt to justify judicial activism. What matters is what the Constitution says, not a judge's personal take on what laws are best for the country.

Consider Goodwin Liu, the University of California at Berkeley professor whom the president nominated to the U.S. Court of Appeals for the 9th Circuit. Liu has argued that judges should treat the Constitution as an infinitely flexible document to be interpreted through nebulous "social understandings" and the consideration of foreign law. This activist philosophy led Liu to conclude that the Constitution provides a right to government health care and welfare -- a remarkable view of a document designed to curb the excess of federal power.

The American people overwhelmingly disagree with this approach to judging. So the president is playing a rhetorical game, accusing the court's conservative, or traditional, justices of being the real activists: harboring a secret bias for big businesses. It is an absurd suggestion.

Look at President Obama's response to the 5-to-4 ruling in Citizens United. The court found that Congress had violated Americans' constitutional rights by prohibiting all manner of companies, including small businesses and advocacy groups, from engaging in political speech near an election. Far from activism, the decision was grounded firmly in the plain words of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech."

Nonetheless, President Obama assailed the court for ruling against this government overreach and said that "powerful interests must not be allowed to drown out the voices of ordinary citizens." But what interest is more powerful than the federal government? And what protection is more vital for ordinary citizens than the protections guaranteed by the Constitution?

One need only look at where the justices fell on three major constitutional issues addressed in recent years -- speech rights, gun rights and property rights -- to understand the true divide between the court's traditional wing and its progressive-activist wing.

In Citizens United, the court's traditional wing protected the right to freedom of speech, and the progressive wing voted to protect government power; in District of Columbia v. Heller, the traditional wing protected the "right of the people to keep and bear arms," and the progressive wing voted to protect the District's gun ban; in Kelo v. New London, the traditional wing voted to protect private property rights and the progressive wing prevailed in allowing the state to seize someone's home and give it to a commercial developer.

In each of these cases, fundamental liberties were at stake. And in each case the traditional justices sided with the Constitution and individual Americans, while the progressive justices sided with big government -- even though the basic freedoms of everyday Americans were clearly being threatened.

As government continues its rapid expansion, Americans are looking for judges in the mold of Chief Justice John Roberts, not Justice John Paul Stevens. They are looking for judges who will stay true to our Founders' vision instead of imposing their own. They are looking for judges who recognize the limits on government power; who restrain themselves to the text of the Constitution; and who will defend the rights of all citizens without bias, without prejudice and without hesitation.

The writer, a senator from Alabama, is the ranking Republican on the Judiciary Committee.

© 2010 The Washington Post Company

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