Fox News judicial analyst Andrew P. Napolitano
When Justice David Souter announced his retirement from the United States Supreme Court in May of 2009, speculation on whom President Obama would appoint in his place was all over the map. But few Essex County residents might remember that a former fellow resident (and Princetonian) was mentioned at least twice as a possible, or at least desirable, Supreme Court nominee. His name is Andrew P. Napolitano.
Most people today know Andrew Napolitano as the "senior judicial analyst" and occasional guest host and frequent commentator on Fox News. They may not know that he is also the host of his own Internet streaming-video show (Freedom Watch). Most people might wonder why his friends at Fox News call him "Judge," but Essex County residents probably know. He served as a judge of the Superior Court of New Jersey from 1987 through 1995, the youngest-ever judge on that court to be vested with life tenure. He is perhaps better remembered at Seton Hall University School of Law, where he taught Constitutional law for eleven years, three of them before he received his judgeship. His students voted him the most outstanding professor in the school for three consecutive years.
Andrew Napolitano's beef is with any politician, no matter what he says he wants to accomplish, who ignores or flouts the Constitution in the pursuit of that accomplishment. In a significant departure from views he once held while he was at Princeton, he concluded, after eight years on the bench, that the government is simply not to be trusted. In the 150 criminal cases that he tried, he quite often discovered that many police officers who sat in his witness box "stretched the truth" while testifying. In later years he determined that the problem goes far beyond the occasional "lying cops" to a government that is interested more in acquiring more power than in actually serving the public. The President he blames more than any other for this is Franklin D. Roosevelt, whom he accuses of promulgating a doctrine of legal positivism or legal realism, by which "the law is whatever the lawgiver says it is," any time the lawgiver says it.
Napolitano instead prefers natural law, which says that rights come from God, and that anything that the government does, beyond restraining some people from infringing on the rights of others, is suspect. For an enumeration of these natural rights, Napolitano turns to the best sources anyone could find: the Declaration of Independence and other essays by Thomas Jefferson and James Madison.
Though liberal politicians and commentators often accuse Andrew Napolitano of being a willing apologist for the George W. Bush administration, those libertarian commentators who recommended him for the Supreme Court back in May know better. They know that he was the sole voice of caution, and even of alarm, concerning Bush administration policies. He explained some of his misgivings to two journalists at Reason magazine (Nick Gillespie and Brian Doherty). For example, the USA-PATRIOT Act contains several very little-known provisions that remind him of the "writs of assistance" that British officers during the reign of George III routinely wrote to justify unreasonable searches and seizures. (He also said that the Patriot Act was one of many bills that Congress essentially passed without reading. Sound familiar?)
So how might the country be different if he had been appointed to the Supreme Court this fall? Probably not too different from actual fact--yet. Today Andrew Napolitano the analyst, columnist, and host, is calling for State nullification of a whole host of bills, not just the Pelosi health-care bill, that he says are violative of the Constitution. But if he were sitting on the Court, he would be biding his time until he received the first petition for a writ of certiorari seeking an injunction against "Pelosi-care" or "Obama-care" or whatever one wishes to call it--and planning the arguments that he would use with his colleagues to persuade them, first to grant certiorari to the petitioners, and then to join him in a majority opinion against the legislation.
Sadly, that is not happening. But it might be worth asking how a Justice Napolitano might yet become a powerful and even earth-shaking force for reform, if he could somehow be elevated to the Supreme Court in the not-too-distant future.
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