Souter's/Steven's Retirement: A Lesson for the U.S.

With the retirement of Justice John Paul Stevens today from the US Supreme Court Republicans are reflecting on a lesson they know all to well: fidelity and loyalty are the great conservative virtues.

Lets get one thing on the table right off the bat: since the 1930's, the US Supreme Court is as much about politics as it is jurisprudence. How else could one explain the progressive revolution in jurisprudence, which occurred without a single amendment to the US Constitution? Since the Court is far less likely to concern itself with what the law actually is, and more what Justices think it should be, the politics of appointments are paramount now.

Conservatives value the virtues of fidelity and loyalty, because without these values, there is no rule of law. The common law is superior to any one man, because it is formed by the collective wisdom of consensus formed through many generations. The law should change by consensus, not the dictate of supposedly benevolent intellectuals.

However, if progressives are right, and man's intellect and morality are superior to the law, then there is only rule of man. Therefore, for conservatives, fidelity and loyalty to the law are paramount.

During the 20th Century, a total of 4 Supreme Court justices were nominated by Republicans, who turned out to be progressives: Earl Warren, William Brennan, David Souter and John Paul Stevens. Each was a significant force for the progressive view of law. Warren and Brennan were nominated by Republican President Dwight Eisenhower, who later said it was "the biggest damn fool mistake I ever made." Souter was nominated by George H. W. Bush, while Stevens by Gerald Ford. Warren and Brennan retired during the administration of the Party that nominated them. But Souter and Stevens, waited for a Democratic president. Therefore, Republicans say they are political Benedict Arnolds.

I have no anger against Souter and Stevens when it come to their progressive jurisprudence--I simply disagree with it. When we have disagreements and debates, it is not personal and it is hardly a reflection on one's character. I respect the sincerity of progressives, although I think the idea that men are benevolent and intellectually capable of making decisions for others is naive and misguided. The fact that the conscience of Stevens and Souter guided them to a more progressive track is a matter of their powers as jurists.

However, I would first question their honesty--in their interviews, if they had told their President's "I plan to be a progressive jurist, and wait for a Democrat President to retire," would they have had any chance of being nominated? For these men, did the ends justify the means?

The thing that really makes me angry about Souter and Stevens is that, unlike Warren and Brennan who merely followed their conscience, Souter and Stevens demonstrate a complete lack of of the virtues of loyalty, fidelity and respect, with regards to their retirements. This is because, in deciding when to retire, they purposefully waited for a Democrat President, when they were appointed by Republicans. Since they were nominated by Republicans, they should have at least tried to retire during a Republican administration. There is no formal rule addressing this, rather, this is an issue of professional etiquette.

Is it any surprise that those who would abandon loyalty to the law, would also abandon loyalty to such etiquette?

In life, I believe you always appreciate those who had faith in you and supported you. Many of us work very hard to elect politicians that reflect our views. For a politician (whether nominated or elected) it is wrong to let people work for you, leading them to believe that you will act in a certain way--then ultimately act in a completely different way. As a public official, if you end up disagreeing with your supporters, then fine, you should always do what you think is right. But it is wrong to be dishonest up front, and then turn your back on those people altogether.

This is a difficult line to walk for the public official. Often, they have to do things they don't believe in because it is popular. And often they have to do things that are unpopular, because they sincerely believe in it. The ability to walk this line defines a great statesman. But I find it difficult to believe that this was the issue faced by Steven and Souter. Were they so unprepared for the issues they would face in office, that they were pursuaded to completely change their fundamental views? I find this difficult to accept. I find it more persuasive that they were trojan horses for progressives. It's not the "progressive" part that I object to, it's the "trojan horse" part.

I discuss my views on judges being more upfront about what they believe here.

Maybe the reputation progressive-special-interests-groups have for being willing to accomplish their agenda by any means is well earned. We have seen Congress and the President pushing an extraordinary agenda over the last year, on behalf of special interests (not progressives). It is fair to say that the public was probably unaware of what the Democrats planned to do with their new-found power. President Obama is now famous for his broken promises. Is there a pattern here? Can politicians be expected to govern differently than they campaign? I think so--and that is why government's power should be limited and the law should rule, not men.

The progressive ideology is based on the idea that a benevolent intellectual leader, of superior moral standing, should make decisions for the less-abled populous. Rousseau, for example, considered it "the best and most natural arrangement for the wisest to govern the multitude." It is only logical then, that the intellectual leader may have to be somewhat misleading during a campaign or nomination process; otherwise the less educated voters may not select him. Here, I am not saying that progressives are inherently dishonest--only that some are not really progressive. They simply are special interests who abuse the progressive ideology.

I disagreed with many things President Bush did, but in 2004 his campaign was based on the concept, "you may not agree with me, but you know where I stand." I respect that. Although I disagreed with President Bush, we knew what we were getting in '04 (maybe not so much in 2000, but he argues that Sept 11 changed all that).

I have all the respect in the world for sincere, well-intentioned progressives, although I disagree with them. I have no respect for dishonesty, disloyalty, lack of fidelity, or any lack of character.