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So, Justice John Paul Stevens is retiring. Now we learn that Dawn Johnsen has withdrawn her nomination to run the Office of Legal Counsel (OLC) at the DoJ. Teh Won had been hankering so bad to get Johnsen in that position that he nominated her twice while the idiot Senate Majority “Leader” Reid dithered on bringing the nomination for a full vote on the Senate floor, even when the Democrats had 60 votes to overcome any filibuster. Now with Stevens leaving, and this move by Stevens was done completely for political effect, there is nothing stopping Obama from nominating Johnsen to the Supreme Court.
Here’s why I think he might.
Obama seems to exhibit only one way: his way. Period. End of story. Even if his opinion differs from the law, that doesn’t matter to Teh Won; it’s his way or the highway. His nomination of Justice Sotomayor was a perfect example of that; Sotomayor is on record for making racist and sexist comments, and more egregiously, notoriously upheld the illegal discrimination of the city of New Haven, CT (a violation of Title VII of the Civil Rights Act of 1964) during the Ricci case that was overturned by the Supreme Court. So if Obama can nominate someone similar to him with the discriminatory and unconstitutional aspects of a Sotomayor for the Supreme Court, there would be nothing stopping him from nominating someone like him who is as much a whole-hearted supporter of abortion as he is, which is Johnsen. I mean, Obama is the same guy, as a state Senator, who killed Illinois’ version of the federal Born-Alive Infant Protection Act because he falsely claimed it would run afoul of the left’s version of Plessy v. Ferguson, Roe v. Wade. With Johnsen, she filed a brief in an abortion case many years ago that ridiculously said any restriction to abortion is a violation of the 13th Amendment’s ban on slavery. In a criticism of Johnsen that came out after Teh Won nominated her to run the OLC, Andy McCarthy mentions this, with other notable tidbits:
The Court rejected this farcical theory, just as it has rejected other instantiations of Johnsen’s extremism. On abortion and other issues dear to the Left, she is nothing short of a zealot. She insisted that, without government-provided abortion counseling, a large number of women would be left without “proper information about contraception.” This, she claimed, would mean they “cannot be said to have a meaningful opportunity to avoid pregnancy.” The usual rejoinder to such reasoning is that nobody is forcing these women to have sex. Johnsen sees it differently, writing that these “losers in the contraceptive lottery no more ‘consent’ to pregnancy than pedestrians ‘consent’ to being struck by drunk drivers.”
McCarthy adds information about her opposition to the Gonzales v. Carhart case that upheld the Partial Birth Abortion Ban of 2003.
McCarthy then goes into what he calls “Johnsen’s other bête noire,” national security. Which brings us back full circle to the retiring Justice Stevens. His opinions are notorious for redefining the law as he sees fit, and they are no more ridiculous than his majority and concurring opinions concerning national security. Stevens had no problem overturning previous Supreme Court cases, having to do with national security, which as a result completely tie the hands of any President that has to fight the Islamist terrorists the U.S. is at war with, or even any other unlawful enemy combatants; I’m referring, of course, to the completely unconstitutional Hamdan decision, where Stevens in his majority opinion willfully rewrote the Geneva Convention to now protects terrorists. Stevens also gave terrorists we are at war with the right to file habeas petitions with his opinion in Rasul. Dawn Johnsen would fit right in as a replacement for Stevens since she exhibits the same activist judicial philosophy that Stevens has practiced, especially over the last 10 years.
I want to touch on some things with Stevens. He is the only remaining Supreme Court Justice who served in the military during World War II. He was attached to the team that broke the Japanese military code that allowed the U.S. military to know the movements of the enemy; this was a major reason the U.S. Navy was able to annihilate the Japanese Navy at Midway, sinking four of their front-line aircraft carriers. Stevens himself as part of this cryptography team was involved in the operation that, in 1943, allowed the Army Air Corps to kill the overall commander of the Imperial Japanese Navy, Admiral Isoroku Yamamoto. Within the last few years, Stevens has brought up the subject saying that the attack on the admiral turned him against the death penalty. Forget how killing an enemy soldier during a war has to do with a judge sentencing a convicted criminal to death, but it’s like the man, Stevens, has no trouble with apples-and-oranges examples as part of his judicial philosophy. His opinions in Rasul and Hamdan are replete with such comparisons, just so his opinion can comport with how Stevens views the world instead of being an interpretation of the law.
But, national security isn’t the only area that Stevens has completely missed the boat as a Supreme Court Justice over the past 10 years. He wrote the majority opinion in one of the most tyrannical rulings in the history of the United States, Kelo v. New London. Here, his leftist bent is used to praise the centralized government planning approach by the New London city government that was a complete violation of the Takings Clause in the Fifth Amendment. Never mind that the plaintiff’s rights were totally nullified; all that mattered was that the government was doing something he agreed with (ironically, all that New London ended up with was an empty, weedy field after Pfizer, whom the city government was courting, pulled out of the deal). He and every other Justice who ruled with him should have been impeached as accessories to theft.
Stevens also wrote a concurring opinion in Roper v. Simmons, a case which overturned the death sentence for a convicted murderer (of which the conviction itself wasn’t questioned or overturned) who was 17 years old when this horrific crime was committed, which ties in with his comment about the death penalty. Here he uses the “living Constitution” doctrine to write a pointless concurrence, completely lacking in jurisprudence, with Justice Kennedy’s majority opinion (Kennedy used two non-legal arguments to support his ruling: 1) even though the U.S. hadn’t ratified the United Nations Convention on the Rights of the Child, he believed it should be part of U.S. law, which contradicts Article VI of the Constitution; and 2), that consensus amongst the states in regards to the minimum age by which a convicted criminal is executed is relevant).
In the recent Citizens United First Amendment case, Stevens wrote an opinion that concurred and dissented in part. Here is what he thinks of the First Amendment:
All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.
Even when Stevens did get an opinion right, as he did in Crawford v. Marion County Election Board (Crawford upheld Indiana’s voter ID law), he did so in such a way that earned the rebuke of the of the great Justice Scalia, who wrote his own concurring opinion. As explained by Scalia:
The Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation, and our precedents refute the view that individual impacts are relevant to determining the severity of the burden it imposes.
But he gets critical of Stevens ruling in a couple of places:
The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a special burden on” some voters,…but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny…
The lead opinion’s record-based resolution of these cases, which neither rejects nor embraces the rule of our precedents, provides no certainty, and will embolden litigants who surmise that our precedents have been abandoned. There is no good reason to prefer that course.
If Stevens wasn’t bad enough, former Justice Souter wrote a dissenting opinion in Crawford where he seemed to think polling places are open as often as Indiana’s Bureau of Motor Vehicle offices and the various county clerk’s offices around the state. And look who Obama replaced him with, Sotomayor.
Therefore, it won’t be a surprise if Teh Won attempts to replace Stevens with Dawn Johnsen, who appears to use her political philosophy to justify legal reasoning, much like Stevens has done.
Early in his show this past Friday, Mark Levin says that the precedent the leftists began with to hold up judicial nominations, which started with the despicable smear of Robert Bork by the late-Sen. Ted Kennedy, should be used by Republicans with any nominee Obama puts forth before the 2010 elections. Although fraught with peril since Teh Won could nominate anyone just to make it appear Republicans are being obstructionists, I think this is the right approach, especially if they come close to or succeed in taking back the Senate. Republicans could counter that nominees like Johnsen are nothing more than an attempt by the President to put politics before the Constitution and the law, which is something Obama frequently does. Obama can’t realistically put in Johnsen as a recess appointment since her term would be done in January, regardless of how the election turns out. She will have to go through a full confirmation, hearings, votes, and all.
But don’t be surprised if Obama nominates Johnsen to replace Stevens.