Editorials

Justices often turn on GOP

When Supreme Court justices retire, there is usually some pious talk about their "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Stevens was on the high court for 35 years - more's the pity, or the disgrace. Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous Kelo decision of 2005.

The Constitution says the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power - as they have in other issues. This reached its logical extreme in the Supreme Court case of Kelo v City of New London. This case involved local government officials seizing homes and businesses - not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenue.

Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Stevens defer: government officials. Why would those who wrote the Constitution put that protection in there, if not to protect citizens from the very government officials to whom Stevens deferred?

Stevens is a classic example of what has been wrong with too many Republicans' appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.

Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals. Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican Party has long ago mastered the art of pre-emptive surrender.

The net result has been a whole string of Republican justices carrying out the Democrats' agenda, in disregard of the Constitution. Stevens has been just one.

There may have been some excuse for President Ford's picking such a man, in order to avoid a fight, at a time when he was an unelected president who came into office in the wake of Richard Nixon's resignation in disgrace after Watergate, creating lasting damage to the public's support of the Republicans.

But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.

In light of these justices' records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.

Sowell is a senior fellow at the Hoover Institution, Stanford University, Stanford, CA 94305.

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