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National Legal Summit
Created Equal: Reflections on the Unalienable Right to Life

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Watch Out for the Coming Obama Judicial Appointments

By Thomas A. Glessner, J.D.
February 10, 2009

Major news this last week came from the United States Supreme Court when we learned that Justice Ruth Bader Ginsberg is suffering from cancer in the pancreas. This is a serious illness and even when detected early, as it has been with Justice Ginsberg, the odds of surviving are not high.

Of course, the thought of a vacancy on the Supreme Court in the near future has caused the political pundits to surmise about the kind of judge President Obama would nominate to replace Justice Ginsberg. The deeper concern for conservatives is whether or not such a replacement would disturb the current balance of the Court and thus, affect future rulings on issues of concern such as abortion and same-sex marriage.

The current balance on the court can be described as 4-1-4. That is to say, there are four justices — Scalia, Thomas, Roberts and Alito — who are generally considered to be conservatives on social issues. There are four justices — Stevens, Souter, Breyer and Ginsberg — who favor the liberal side of the spectrum and support abortion rights, gay rights, restrictions on Second Amendment rights and other positions that are part of the liberal agenda.

The middle vote on the Court is Justice Anthony Kennedy who time and again has provided the fifth and determining vote in many controversial decisions. Sometimes Kennedy's vote affirms conservative values, such as his vote and opinion in the decision to uphold the Congressional ban on partial-birth abortion. Other times his vote provides liberals with the victory as it did in Planned Parenthood v. Casey, that upheld by one vote the central premise of Roe v. Wade, which falsely concluded that a constitutional right to abortion exists.

President Obama has the constitutional authority to appoint future Supreme Court justices, and it is safe to conclude that such appointments will join the liberal wing of the court thereby possibly tipping the balance of the court on the critical social issues of the day. As long as he does not replace the conservative votes, or the vote of Justice Kennedy the balance will remain as it is today.

Ruth Bader Ginsberg came to the high court with a long resume that showed passionate advocacy of far left political issues. She served as the general counsel for the American Civil Liberties Union and was an advocate for elevating the so-called right to abortion in Roe to a position that, if adopted, would place all those who oppose abortion in the same legal position as those who opposed equal rights for African-American citizens. Such a position is a dangerous one indeed and, if adopted by the Court, would forever end the debate in political circles about the continuation of abortion on demand as a social policy.

Contrary to popular belief the 1973 decision in Roe did not find a new constitutional right to abortion. Rather, it reiterated a previously acknowledged constitutional right — the right to privacy — and expanded such right to include a woman's decision "whether or not" to terminate her pregnancy. (Such a broad right to privacy actually protects a woman's decision to carry her baby to term as well as to abort even though it is almost always couched in terms of a right to abortion.)

Ginsberg's position on abortion, if enacted, would find a right to abortion in the equal protection clause of the constitution. This would mean that the denial to a woman of such a right is a denial to her of equal rights under the law. Thus, those who oppose abortion, under this view, oppose equal rights for women and are accordingly misogynists and bigots in the same way as were the racial segregationists in the South during the 1950s and 60s.

In regards to abortion President Obama has made it very clear that he will not compromise his far-left pro-abortion beliefs. While running for president he announced that he would sign into law the radical Freedom of Choice Act (FOCA), which essentially would be a federal codification of the Ginsberg abortion position. Further, his current appointments to head up the Department of Justice indicate that the legal minds of this administration are totally committed to the right to abortion and the Ginsberg view of such a right. Because of this, we simply cannot expect that Obama's judicial appointments are going to be anything but far-left and pro-abortion.

The good news in regards to replacing Ginsberg is, of course, that such a replacement does not change the current balance of the Supreme Court. It merely replaces an older liberal justice with a younger one. The bad news is that Obama will make many judicial appointments to the lower federal courts as well as to the Supreme Court and these appointments are undoubtedly going to be people who are on the far left of the political spectrum.

I believe that the greatest danger to the continuation of the American experiment in representative democracy is the increasing control over our lives being exerted by a federal judiciary composed of non-elected judges who serve for a lifetime. Obama's judicial and political philosophy clearly indicates that under his watch such judicial tyranny is going to increase.

In regards to the Supreme Court I believe that we must fervently pray — "Long live Justice Kennedy." In regards to the future Obama appointments of lower court federal judges we must pray that conservatives in the United States Senate have the political backbone to oppose the nominations of liberal judges who will expand the social agenda of the far left.

Copyright © 2009 by Thomas A. Glessner. All rights reserved.

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