SCOTUS Cannot Be Reshaped Overnight

There is a reason why Lady Justice wears a blindfold. There are things that courts are not supposed to see or recognize when making their decisions — the race you belong to, whether you are rich or poor, and other personal things that could bias decisions by judges and juries.

It is an ideal that a society strives for, even if particular judges or juries fall short of that ideal. Now, however, Pres. Barack Obama has repudiated the ideal itself by saying that he wants to appoint judges with “empathy” for particular groups.

This was not an isolated slip of the tongue. Barack Obama said the same thing during last year’s election campaign. Moreover, it is completely consistent with his behavior and associations over a period of years — and inconsistent with fundamental principles of American government and society.

Nor is this President Obama’s only attempt to remake American society. Barack Obama’s vision of America is one in which a president of the United States can fire the head of General Motors, tell bankers how to bank, control the medical system, and take charge of all sorts of other activities for which neither he nor most other politicians have any expertise or experience.

The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate.

Appointing to the federal courts — including the Supreme Court — judges who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution.

If all this can be washed down with pious talk about “empathy,” so much the better for those who want to remake America. Now that the Obama administration has a congressional majority that is virtually unstoppable, and media that are wholly uncritical, the chances of preventing the president from putting someone on the Supreme Court who shares his desire to turn America into a different country are slim or none.

The only thing on the side of those who understand this, and who oppose it, is time. Reshaping the Supreme Court cannot be done overnight, the way Congress passed a vast spending bill in two days.

Replacing Supreme Court justices is something that can be done only one at a time and at unpredictable intervals. What this means is that senators who do not have enough votes to stop an Obama nominee to the High Court from being confirmed nevertheless have an opportunity — and a duty — to alert the public to the dangers of what is being done.

This does not mean turning confirmation hearings into a circus or a kangaroo court with mud-slinging at judicial nominees, the way Robert Bork and Clarence Thomas were smeared. But it also does not mean taking the path of least resistance by quietly voting for people like Ruth Bader Ginsburg and Stephen Breyer, who treat the Constitution as a grant of arbitrary power to themselves, rather than a restriction of power on the government as a whole.

It is all too easy to say “A president has the right to appoint the kind of people he wants to the Supreme Court.” He does. But that does not mean that those who don’t have the votes to stop dangerous nominees from being confirmed are obliged to vote for them or to stand mute.

Since Justice David Souter is likely to be replaced by another liberal, it is all too easy to say that it is no big deal. But with all the indications we have already as to how the Obama administration is trying to remake America on many fronts, the time to begin alerting the public to the dangers is now.

Given the age and health of some other Supreme Court justices, more replacements are likely during Obama’s time in the White House. Time gives an opportunity to mobilize public opinion and perhaps change the composition of the Senate that will confirm the next judicial nominees.

But time by itself does nothing. It is what we do with time that matters.

WRITTEN by Thomas Sowell for the National Review as 'Time Is On Our Side' and published on May 7th, 2009

The Importance of the Electoral College

One of the most important institutions in America is also one of the least understood. I am talking about the Electoral College, the select group of voters who actually determine the winner in Presidential elections such as those taking place today between Barack Obama and John McCain. There are many who believe that the election should be a simple popularity contest, with the candidate who receives the most votes by the general public declared the winner. In their view, if John McCain receives 50,000,001 votes and Obama receives 50,000,000 then McCain is the winner. Of course simple logic should tell you that is a poor way to choose. After all, we all understand that there is fraud in some voting precincts. Would you want a close election stolen by dozens of votes across the country cast by Mick E. Mouse, among others. Also, America is made up of diverse populations and communities. Why should a few states with large urban city populations such as New York and California determine who the President will be, with smaller rural states such as Oklahoma, Louisiana, Missouri, and Tennessee always at the whim of these cities? So this brings up two important questions. First, why have a popular vote at all? Second, who makes up this Electoral College, and how does it work? Let's take the 2nd question first. The Electoral College is a body of delegates who are elected based on rules set up in each of the respective states. Each state receives a number of delegates based on the number of U.S. Senators and Congresspersons in their state, which in turn is based on the state population. So in the end, states delegate allotments are based on their population size. These delegates/electors are supposed to vote based on the popular vote results, thus the importance of your individual vote. If you vote for Obama today, and if he in turn wins the popular vote in Pennsylvania, then he is supposed to get all of Pennsylvania's votes from our state delegates to the Electoral College, no matter their party affiliation. To win the Presidency, a candidate must receive a majority of votes in the Electoral College, which would currently amount to 270 votes. The number of electors is determined by the population figures that come with the official U.S. Census every ten years, so the specific state numbers can change based on population shifts. The actual Electoral College 'election' comes this year on December 15th, when the electors from each state will meet in their respective state capitals to cast their ballots. The system grew out of the original Constitutional Convention itself when our nation was being formed and its system of government being debated. Its basic philosophy is to protect smaller states from becoming dominated by the population centers of certain key 'swing states'. While a number of proposals have come up to change the system over the decades, none has been found to be a worthy successor. The fact is, there was never a move to make our federal election process a purely popular vote, but the current Electoral College system allows for such a vote as a part of the determining factor for who eventually is elected. So when you cast your ballot today, rather than actually voting for John McCain (which you are doing in spirit), your vote is being cast instead for his electors/delegates. While the vast majority of electors keep to the honor of the rules, in 2004 one elector cast a vote for John Edwards, the Dem candidate for VP, as his Presidential choice. In 48 of the states and the District of Columbia there is a 'winner takes it all' system in which the winner of those states' popular votes get all of that states' delegates. Maine and Nebraska have slightly different systems that in the end usually amount to the same type of result as the others. Candidates who receive the most nationwide total popular votes do not necessarily have to win the Electoral College. It has happened three times that the overall popular vote winner has lost the overall election in the Electoral College: 1876, 1888, and most recently in 2000. That 2000 election for President was extremely close. Democratic candidate Al Gore and Republican candidate George W. Bush each received over 50 million votes, and in the end Gore's total was above that of Bush by just one half of one percentage point. The voting in the Electoral College was just as close, as could be expected, and in the end would come down to whomever carried the state of Florida and its 25 electoral votes. As the polls closed, Florida's importance was evident already, and some national media outlets declared Gore the Florida winner, and thus the national winner, based purely on 'exit polling'. As the night drew on, however, it became apparent that Bush had actually carried Florida by a solid margin. That is the reason that there was such a fight in Florida, with voting procedures such as 'hanging chads' making the news, and recounts called for in a number of Florida counties. The fight was so close that neither party was giving in, and with Bush leading in most every count the Supreme Court was finally called on to make a decision as to whether to allow the continued fight via recounts in Floria. With the partisan battle already dragging on for over a month, and with the outcome apparently leaning Bush's way to all but the most ardent Democratic Party faithful, the Court ruled that the recount process was over. Bush received the 25 Florida electoral votes, and won the Electoral College by 271-266, and in turn won the Presidency. While some protested and cried foul, the fact is that the Electoral College system had worked perfectly, reflecting the nationwide vote. The Democrats should have been extremely disappointed by such a narrow defeat, turning over the Presidency to the Republicans after having controlled the White House for eight years under Bill Clinton. But no one should have called the Bush Presidency anything other than the legitimate narrow win that it was. The Electoral College protects small states from big cities, ensures an educated overview before the most major transfer of power in our nation, and effects the protection of our federal system as the Founding Fathers intended, securing Democracy for all Americans.