L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 328, July 17, 2005
"Because the Government is evil and stupid..."
An Obvious Choice
Special to TLE
The retirement of Sandra Day O'Connor has given President Bush an opportunity conservatives have been waiting thirteen years forthe chance to nominate a new Justice to the Supreme Court. Liberals are also preparing for the moment, with the Washington Post estimating that between fifty and one hundred million dollars will be raised by both sides to campaign for or against the new nominee. Since the Supreme Court has usurped the power to overturn state laws and set uniform national policies on contentious social issues, and since Americans meekly acquiesce to the decisions of the Court's black-robed High Priests, the battle will be intense. Yet, it wouldn't have to be, if the next nominee were someone both sides could admire, someone with an unblemished reputation for choosing Constitutional principles over partisan ideology. Someone like Dr. Ron Paul, the Republican Congressman from Texas.
But doesn't a Supreme Court Justice have to be a judge first? There is no such legal requirement. Many Democrats once hoped that President Clinton would nominate New York governor Mario Cuomo for the Supreme Court. President Bush himself has indicated that he wants "someone of high intellect, great legal ability, a person of integrity and someone who will faithfully interpret our constitution and laws." With the possible exception of legal training, Dr. Paul fits those criteria perfectly. After decades of watching trained lawyers slowly translate the plain language of the Constitution into the opposite of its obvious meaning, Americans should welcome the addition of a non-lawyer to the Court.
President Bush could make a bold statement by nominating Dr. Paul for the Supreme Court. While he would be nominating someone his conservative base could enthusiastically support, he would also be blunting liberal criticism of the appointment by nominating one of his harshest critics within the Republican Party. While Congressman Paul is clearly pro-life and strongly opposed to big government, he has spoken out repeatedly against the Patriot Act and other Bush Administration incursions on civil liberties, and condemned the invasion and occupation of Iraq from the very beginning.
Many liberals would no doubt object that Dr. Paul is far too conservative (by their standards) to appoint to a position of such high power. Yet he has proven time and time again that he would defend the Constitution, even when it conflicts with his own partisan principles. Writing on the recent Kelo decision, this preference was clear: "If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all casesnot only when it serves our interests."
Of course, many liberals don't want the Constitution defended; they want to continue to use the Supreme Court as they have for most of the past century, to lend legitimacy to laws that contravene both the letter and spirit of the Constitution, in order to build a powerful central state for achieving their desired social ends. Some conservatives who once criticized that approach have now come to embrace it, provided they can remain in power themselves. We can only hope that both sides will come to realize that a powerful central state is a great danger to be guarded against, because the other side will eventually control that power.
In a more just nation, Ron Paul would be the President and George W. Bush would be a conservative Congressman from Texas (with his wealth and family connections, we could hardly expect less.) But how many people of either party would ever consider appointing Mr. Bush to the Supreme Court?
Dr. Paul himself has warned against the dangers of placing too much hope in the next Supreme Court nominee, no matter who it is: "We are supposed to be a nation of laws, not men, and the fixation on individuals as saviors of our freedoms is misplaced. America will regain lost freedoms only when her citizens wake up and reclaim a national sense of self-reliance, individualism, and limited government. A handful of judges cannot save a nation from itself." But as long as we are burdened with a powerful government, we should do all we can to make sure it is in the most trustworthy hands.
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