One of the organizers of the Justice Sunday rallies in 2005 has sent a letter to the head of the Senate Judiciary Committee demanding that Patrick Leahy ensure against confirming a judicial activist to replace David Souter.  Dr. Charmaine Yoest of Americans United for Life reminds Leahy that Americans around the country have put reasonable restrictions on abortion, and that any judge that would undo those through  legislative fiat should not get sent to the highest court:

Dear Senator Leahy:

We understand that Associate Justice of the Supreme Court, David Souter will retire at the end of the Court’s current term. The President will soon send to the United States Senate a nominee to our highest court.

Americans United for Life is a public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law. We will oppose any nominee to the Court who believes social activism trumps interpreting the Constitution.

The Constitutionally-protected right to self-government is threatened when judges arrogate to themselves the legislature’s power to craft public policy. The most important question a nominee for the Supreme Court must answer is to articulate their judicial philosophy: will they advance an agenda that limits the right of the people to determine the content of abortion-related laws through the democratic process?

The President has expressed a public commitment to reducing the frequency of abortion in the United States. Appointing a nominee who intends to read the Freedom of Choice Act into the Constitution will undermine that objective, increase the number of abortions nationwide, and further disenfranchise millions of Americans who want to settle this issue through the democratic process.

Furthermore, elevating abortion to a fundamental right on the same plane as the freedom of speech would void common-sense abortion regulations that the vast majority of Americans support, like the prohibition on partial-birth abortion. Such a move would also require taxpayer funding of abortion, eliminate informed consent and parental notice and consent laws, state requirements that abortions be done only by physicians, and more. A judicial nominee who intends to pursue such a radical agenda should be summarily rejected by the Senate.

In the days ahead, we look to our Senators to uphold their duty to raise serious questions on the nominee’s judicial philosophy and reject any nominee who places personal preference over upholding the Constitution.

Sincerely,
Charmaine Yoest, Ph.D.
President and CEO [Americans United for Life]

I’ve known Dr. Yoest and her family for a few years, having participated in two Justice Sunday rallies myself.  Most recently, I met them at the Values Voter Summit in 2008, where Charmaine and her husband Jack worked tirelessly on pro-family issues.  They are people of unbridled optimism and bountiful grace, evident in the letter above.

In this case, the optimism is misplaced, but I’m certain Charmaine realizes it.  For Leahy, the activism will be seen as a plus, not a demerit.  Barack Obama has explicitly specified that in his remarks on selecting Souter’s replacement, saying that he wants to focus on empathy as a priority, as opposed to a judge that will stay within the law and keep policy-making where it belongs — in the legislature.

Besides, at this point the threat to Charmaine’s position isn’t in the Supreme Court.  In 2005, with two right-leaning judges leaving, the issue was more fraught for the pro-life crowd, but Souter was as liberal as possible on abortion.  This selection won’t change the balance on the court, unless Obama manages to pick someone who agrees with Charmaine about the terrible intellectual argument Roe used to impose abortion as a Constitutional right onto the states.  The real danger for what this letter describes is the Freedom of Choice Act, which Congress may take up, but from which Obama is already backing away.

Even apart from abortion, we need jurists who leave legislating to Congress.  If we hadn’t had the overreach of the Warren court and the courts that followed, we would have a smaller federal government and better control over public policy.  We’d also have a significantly less politicized judiciary, and the only way to restore that is to get unaccountable judges out of the business of setting public policy.