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The American Principles Project is a 501(c)(3) organization dedicated to preserving and propagating the fundamental principles on which our country was founded - universal principles, embracing the notion that we are all, "created equal, endowed by our Creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness."
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APP Founder
Robert P. George, J.D., D.Phil., McCormick Professor of Jurisprudence at Princeton University, is one of America's foremost scholars in the fields of constitutional law, ethics, and political philosophy.
Dr. George has won numerous awards for his academic and civic work, including the Presidential Citizens Medal. He has served on the President's Council on Bioethics and as a presidential appointee to the United States Commission on Civil Rights. He is a former Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award.
| Inevitability and the Court |
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| Written by Thomas Peters |
| Thursday, 20 May 2010 11:23 |
 There is, once again, an air of inevitability about the confirmation of a President Obama nominee to the Supreme Court. I have heard some in the conservative movement say that it would be best to let Elena Kagan be confirmed lest her appointment fail and the President nominate someone more problematic than her a replacement. At the same time, numerous pro-life organizations are doing their best to oppose Kagan’s nomination, to highlight her extreme views on this issue, and to provide Senators with the legal rational for opposing her nomination. Some of these pro-life activities, however, feel perfunctory, and many of the forces who oppose her nomination because she supports the flawed decision rendered in Roe v. Wade would be perfectly content to see her nomination sunk by extraneous factors (her negative views about first amendment rights, for instance). Law, of course, especially when it has been in effect for a long time, strongly shapes our cultural and political sensibilities. Modern pro-life politics and American culture have been shaped by the thirty-seven years since Roe v. Wade, and in the intervening time Americans have come to expect that liberal nominees to the Supreme Court will support Roe. Such an attitude of complacence must be set aside if the pro-life movement is ever to hope to see this unjust law overturned. Any appointment of an activist supreme court justice is a tragedy for the unborn, and any speedy confirmation of such an individual represents a real opportunity lost for educating Americans about this fundamental human rights and constitutional debate, and how liberal nominees are on the wrong side of it. Pro-lifers can make the strong case that Kagan’s views on abortion are out-of-touch with more and more Americans, as recent polling strongly indicates. They should also point out that the President’s famed “empathy” standard splinters into pieces when it smashes into the rocky coast of the powerful pro-abortion lobby, which fights to ensure that personal feelings of pro-life empathy never translate into pro-life policy. The pro-life movement should also argue that even if the President’s empathy standard were a valid criterion for selecting supreme court justices, there still remains a fundamental contradiction at work when the President’s nominees fail to apply empathy (let alone natural justice) to the unborn in this country. The Supreme Court is supposed to dispense “equal justice under law” precisely because human empathy is often selective and unfair, and obviously so in the case of the legal status of the unborn today. Furthermore, empathy, as a purely subjective standard, can often be warped by powerful special interests, such as the pro-abortion lobby and the liberationist ideology which underpins it. Therefore, while the selection of a young, liberal justice to replace the aging Justice Stevens may be discouraging to those who have labored long on behalf of the unborn, the opportunity to educate a new generation of American citizens ought not be missed. After all, the young lawyers in this generation will eventually comprise the pool that future Presidents will select from when they make their choice for America’s justices. And one of them may even end up writing a majority opinion which Kagan will not join. If this debate over the proper qualifications for a supreme court justice is conducted vigorously, before four decades are out, the new inevitability which may come to obtain will be very different than our own. It could be acknowledged by then that supreme court justices - liberal or conservative - must be faithful constitutionalists in word and in record if they expect speedy confirmation. That’s the sort of inevitability we can and must work for now. [Discuss this article on the APP blog here.] |
| Last Updated on Thursday, 27 May 2010 10:51 |
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Topics Law & Justice Inevitability and the Court
Topics Law & Justice Inevitability and the Court