The next president will no doubt be nominating one of more justices to sit on the Supreme Court. As the last two high-profile rulings have demonstrated, just one additional judicial activist on the court will make all the difference between a future of using our Constitution for guidance, or toilet paper.

Within two days last week, we found out that the Second Amendment actually means Americans have the right to own a gun, and that people convicted of raping children can’t be put to death. So, you do have the right to own a gun, but if you use it to shoot somebody who’s raping a child, you’ll receive the death penalty. Go figure.

In the “no death penalty for people convicted of raping children” case, better known as Kennedy v. Louisiana, Anthony Kennedy wrote in the majority opinion, “The death penalty is not a proportional punishment for the rape of a child.” I agree, but it’s the best we can do.

When it comes to the Constitution, some justices are selective in their interpretations. David Souter wrote that killing a child rapist would violate the Constitution’s Eighth Amendment protection against cruel and unusual punishment (strict interpretation), but he is also one of four on the court who pretty much believe that the Second Amendment only applies to 250-year-old militiamen (an interpretation so loose that it spills).

Justice Anthony Kennedy, who changes allegiance so much that he was the centerfold in last month’s Swingers Club magazine, happened to be in the majority in supporting gun rights.

But an examination of a common thread in some of Kennedy’s opinions, and that of other justices on certain occasions, should give all Americans a moment of pause.

In Kennedy’s majority opinion in Kennedy v. Louisiana, he wrote, “There is a national consensus against capital punishment for the crime of child rape.”

A “national consensus”? Why then do we even have a Supreme Court? Let’s just base our laws on popular opinion! That sound you hear is Dred Scott rolling over in his grave.


The “consensus” trend is even more disturbing when we realize that the consensus in question doesn’t even need to be from within the United States. A few years ago, when the Supreme Court ruled that juveniles could not be executed, Swingin’ Anthony wrote the following in the majority opinion in that case:

The stark reality is that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.

Is there any greater miscarriage of justice than a judge who only rules based on “consensus” if the issue is something with which he or she personally agrees? A majority of Americans oppose abortion, but I’m willing to bet that Anthony Kennedy, Ruth Bader Ginsburg, David Souter and a couple others would never recognize this consensus as justification to overturn Roe v. Wade.

Can there possibly be justice in a court that recognizes consensus?

Rest assured, “consensus” will cease to be an acceptable legal justification as soon as there’s a consensus to burn down court houses where selective consensus is used to justify certain laws, but until then, we remain in danger.

Should Obama win the election, there have been whispers that he may nominate Hillary Clinton to the Supreme Court. Even if this is merely a wild rumor, what is not a rumor is that Obama’s court nominees will be “common good” nuts, much like Hillary.

The real unpredictability in this election comes from John McCain. Given McCain’s penchant for partnering with liberals (the “McCain-Feingold bill,” the “McCain-Kerrey bill” (Bob Kerrey, D-Neb.), the “McCain-Feinstein bill,” the “McCain-Leahy bill,” the “McCain-Edwards-Kennedy bill” and the “McCain-Kerry bill,” etc.) what are the odds that McCain would want to do anything other than placate his “friends on the other side of the aisle” when he’s president?

John McCain is a hero and a patriot, but he also longs to be liked by everybody. The latter is a terrific quality – if you’re hiring a bartender. But it’s a lousy quality if you’re trying to save the country from the Democrat majority in Congress and the kinds of activist judges they long to see placed before them.

We know exactly what we’ll get if we elect Barack Obama, but when it comes to John McCain and what justices he’d nominate, Republicans can only cross their fingers. And yet they have the audacity to call Obama the “hope” candidate?


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