Obama Names Sotomayor to Court; Prepare for the Conservative Howling

President Obama's selection of Sonia Sotomayor for the Supreme Court seat being vacated by Justice David Souter is bound to bring howls from conservatives. But then Obama couldn't have chosen anyone left of Attila the Hun who wouldn't have evoked the same partisan outrage.

Get ready for a barrage of twaddle that will go something like this: Jurists should not make law from the bench -- which cons label as "judicial activism" -- but rather construe laws according to the Constitution's "original intent." Similar to right-wing religionists everywhere that they alone know God's will, it's conservative mantra that they -- conservatives -- are the true guardians of the Founding Fathers' clear wishes. So-called strict constructionists evidently suppose the Framers were so dim-witted as to believe circumstances would never arise that required judicial interpretation, when, in fact, they established the judiciary as an independent, co-equal branch expecting it to fill in their blueprint, specifically because they couldn't forecast the future.

Strict constructionists portray the Constitution as an immutable document that can be altered solely by amendment, and insist liberal judges are guilty of practicing judicious, oh right, judicial, activism when they take into account that we no longer live in 1787. They are incensed when "activist judges" consider contemporary political and social circumstances, and in some cases established international law -- which is why Obama's use of the word "empathy" totally blew what they insist are their minds.

Laws are all too often the means to impose the values of the ruling class by endowing legal reasoning to appear "objective" and our institutions to appear "neutral." Obama simply wants to mesh "laws" and "justice" which are often in conflict because laws rubber stamp the interests of the powerful and the affluent while justice for the dispossessed goes unattended.

From the very earliest days of the Republic, the Constitution has been subject to judicial interpretation precisely because it is not clear: Marbury v. Madison (1803) in which the Supreme Court first declared a law of Congress unconstitutional. Fletcher v. Peck (1810) in which the Court first overturned a state law in conflict with the Constitution. Neither power was ever implied by, no less enumerated in, the Constitution. Of course the Constitution is a vibrant, "living" organism. How else could something created for an agrarian society of four million people accommodate 21^st century America?

Interestingly, it's only in the last 50 years -- i.e. following Brown v. Board of Education (1954) desegregating schools -- that conservatives began to object to judicial activism. Which may tell you something.

What's so appalling about this tripe is that the most egregious example of actual judicial activism was perpetrated by conservative justices in Bush v. Gore in 2000. The Constitution, as well as custom, clearly assigns responsibility for elections, including counting the ballots, to the states. Article III, Section 2 enumerates and the Eleventh Amendment reiterates the Supreme Court has no jurisdiction to intercede in internal state matters, nor between a state (e.g. Florida) and a citizen of another state (e.g. Bush).

The Supreme Court, for better or worse, is a political creature reconstituted upon each vacancy by even more blatant political creatures -- i.e. the president and 100 United States senators. To pretend as do Justices Scalia and Thomas that it -- they -- are somehow immune from preconceived religious and moral attitudes and are the impartial guardians of the Constitution is utter poppycock.

Their "tell" was in the minority dissents in the Supreme Court's blockbuster decision, Lawrence v. Texas (2003), that struck down a Texas gay-bashing anti-sodomy law. Justice Kennedy wrote for the majority that "traditional morality is no justification for making legal distinctions among the sexual behaviors of consenting adults. That just because traditional morality happened to overlap with Christian doctrine for decades doesn't mean either traditional morality or Christian doctrine are embedded in the Constitution."

In a scathing rebuttal, Scalia accused the majority of "being co-opted by the homosexual agenda!"

And Thomas, in one of his typical wild-eyed opinions, charged the majority with judicial activism because -- even though it's been settled constitutional law for 200 years -- there's no specific reference to the "right to privacy" in the Constitution. Thomas's rejection of a constitutional right to privacy meshes with Evangelicals' assertion that since the Constitution is based on the Bible, private behavior in conflict with their interpretation of the Bible must be unconstitutional. Thus their unapologetic attempts to force their religious doctrine down others' throats by constitutional amendments such as defining marriage as between a man and a woman and to removing a woman's reproductive choices.

Sorry, Scalia's and Thomas' dissents aren't the judicious opinions of dispassionate constitutional scholars. They are more in tune with the emotional outbursts of bigoted religious homophobes such as Tom Minnery of Focus on the Family who predicted; "if people have no right to regulate sexuality...the welfare of coming generations is in peril." Huh? Regulate? Does he mean like who's on top?

True the actual phrase "right to privacy" does not appear in the Constitution, but the concept was so pervasive in 17^th and 18^th century political treatises the Founders relied on to write the Constitution and is so intrinsically tied to the personal freedoms guaranteed in the Bill of Rights, Supreme Court decisions since the early 1800s have recognized that personal liberty cannot exist without the commensurate right to personal privacy. Absurdly, conservatives howl like stuck pigs when the government pokes its nose into their more bizarre parenting practices or into their smarmy business dealings. Evidently, for the right-wingnuts privacy only doesn't count when it comes to reproductive choices, sexual preferences, non-violent "crimes" and the separation of church and state.

This malarkey regarding original intent is nothing but unadulterated conservative claptrap. It is gross duplicity for cons to pretend this is a battle over strict construction versus judicial activism. This is about one thing and one thing only: Whether a malicious band of right-wing fanatics will get to impose its brand of religious intolerance and economic suppression on the rest of us by vesting judicial opinions in past, often unjust, practices.

There's a perfectly legitimate reason courts regularly overturn social legislation but it's not because of judicial activism. Legislators, being, well, ah, whores, regularly pander to sexual phobias, religious bias, jingoistic paranoia and opposition to free speech because, unfortunately, that's where the votes are. The real danger comes from the fact that we are one Supreme Court appointment away from having their nutty notions become the law of the land.

But this appointment isn't it. The deceitful cons know they aren't going to win this battle and that Sotomayor's selection will not change the left-right balance on the Court. So why all the phony outrage? "It's an immense opportunity to build the conservative movement," said Richard Viguerie, the right-wing fund-raising guru. Yes Republicons are willing to start a brawl, as they have over and over on wedge issues, simply to replenish depleted coffers and rally their demoralized base. Just what the country needs, one more partisan knock-down, drag-out; this one not even for real stakes. They must be so proud.