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Judges matter: Control of the judiciary is too important for gimmicks

By W. James Antle III
web posted November 10, 2003

According to the Washington Post, Republicans will be stashing food and hauling cots out onto the Senate floor for a 30-hour "Justice for Judges Marathon" to protest recent Democratic filibusters against several of President Bush's judicial nominees. But you won't see Ted Kennedy reading aloud from the Yellow Pages in the Senate chambers like a scene from Mr. Smith Goes to Washington anytime soon. Senate Republican leaders aren't forcing the Democrats to mount a traditional filibuster. Instead this C-SPAN slumber party is little more than a gimmick to placate frustrated conservatives who want to see action from Senate Majority Leader Bill Frist and his colleagues.

The Post story is pretty clearly stacked against the Republicans in its assumptions and quotes, at least by my reading. Nevertheless, it is difficult to avoid the conclusion that its writer is correct to say of the marathon "neither side expects the spectacle to change a single vote or resolve the bitter impasse" in one place and "no one in the Capitol expects it to solve anything" in another.

Democratic pollster Mark Mellman was quoted as saying that judicial nominations consistently rank dead last among voter concerns and that attempts to raise public interest in the issue simply constitute "wishful thinking and gratifying the base." In terms of public opinion, this may well be true. There are few things that are more "inside baseball" than Beltway bickering over appointments to positions that receive relatively little day-to-day attention, especially when these debates usually turn on sensationalistic personal scandals and obscure, often ancient quotes dredged up and ripped out of context in an effort to rile up some interest group.

But for the millions of moderate-to-conservative voters in Middle America, there are few things more important to the outcome of issues they do care about than the shape of the federal judiciary. It has become a cliché among conservatives to talk about judges "legislating from the bench" or the "imperial judiciary," but both are precisely what we are faced with. The courts have elevated themselves above the executive and judicial branches and claimed the power to decide our most contentious social issues for us.

Consider the recently enacted ban on partial-birth abortions. This legislation passed the Senate by a vote of 64 to 34 and the House by 281 to 142. Various polls have recorded public support for the measure as high as 70 percent. Due to the nature of this procedure, which entails the partial delivery of the fetus prior to its killing, even many people who generally support legal abortion agree that it should be illegal. Many pro-choice members of Congress voted for the ban in order to end a practice the late pro-choice Sen. Daniel Patrick Moynihan described as "three-fifths infanticide."

Since President Bush signed this bill into law, three federal judges have imposed temporary restraining orders effectively blocking its enforcement. These federal district judges in New York, California and Nebraska relied upon the same anfractuous constitutional reading that has characterized abortion jurisprudence since Roe v. Wade was invented 30 years ago. Judge Richard Kopf in the court in Nebraska even second-guessed the witnesses Congress called to testify in hearings on the bill and the conduct of congressional debate over it.

This is not the first time federal courts have taken it upon themselves to correct the errant judgment of the American people and their elected representatives on the basis of thinly justified legal rationales. Think back to 1994, when California passed Proposition 187, a ballot initiative designed to deny most public services to illegal immigrants, with 59 percent of the vote. Although portrayed in the hostile media at the time as a rebellion of angry white males, Prop 187 also received strong support from a majority of blacks and Asians as well as a significant minority of Hispanics. Contrary to conventional wisdom, Pete Wilson's support for this initiative actually brought him back from the political dead and swept him to a come-from-behind reelection victory.

A sizeable majority of Californians decided to deal with the staggering costs imposed by porous borders – and the federal government's manifest failure to enforce existing immigration laws – by emphasizing the distinction between legal and illegal immigration and deny their tax dollars to those here illegally. Nearly a decade later, mass illegal immigration continues to exert growing pressure on the state's overextended social services infrastructure and absorb growing amounts of taxpayer money. This fact is one of several to create the conditions that led to Gov. Gray Davis famously being recalled and replaced with Arnold Schwarzenegger not so long ago. One possible reason that this problem not only still exists but has gotten worse is that the Ninth Circuit Federal Appeals Court scuttled the voters' attempt to deal with it through Proposition 187. (Davis conveniently decided to let the issue end there.)

You would think that voters and taxpayers would have a right to democratically decide who is eligible for public benefits. It is not clear where in the U.S. Constitution they are required to offer their wealth to non-citizens whose very presence in this country violates American immigration law. But the Ninth Circuit Federal Appeals Court decided differently.

From disastrous forced busing schemes decades ago to the imposition of same-sex marriage in the foreseeable future, judges have seized the power to impose their agendas on the American people. Liberals have particularly benefited from this arrangement because they have prevailed in policy objectives that almost certainly would have been thwarted at the ballot box or through the legislative process.

Judicial review as a check against unconstitutional government activity is perfectly consistent with the Framers' intent. But the kind of detailed legislative decision-making courts have engaged in is not an effort to reign in unconstitutional usurpations of power by the executive or legislative branches; it is in fact an additional layer of usurpation itself. Read some these decisions and decide for yourself whether their authors saw themselves as neutral interpreters of the Constitution or, in the words of that "extreme" Bush nominee Janice Rogers Brown, "philosopher-kings."

This is why the composition of the judiciary ought to be an issue of paramount importance to conservatives and the Republican politicians they vote for. This isn't something that should only be dealt with through photo-ops and publicity stunts aimed at bored C-SPAN viewers. Conservatives cannot accomplish any of the things they care about with a hostile federal judiciary staffed by people who believe the power of judicial review confers upon them the power to judge the wisdom of existing policies and make new ones in their place.

"Marathons" and endless proposed constitutional amendments that seek to address constitutionally dubious court rulings piecemeal simply won't suffice. Republicans must play hardball by forcing the Democrats to follow through with real filibusters and take whatever means are necessary to insure that judicial nominees like Miguel Estrada, William Pryor and Janice Rogers Brown are confirmed by the Senate, or at least granted the courtesy of straight up-or-down votes. Perhaps they should even contemplate more radical solutions, including the exercise of their constitutional prerogative to limit the courts' jurisdiction over certain issues and otherwise reign in the correctly labeled imperial judiciary.

Such efforts will no doubt be portrayed as an assault on the Constitution by liberal activists, as well as a denial of various victim groups' fundamental rights. But the truth is that making sure that the Founders' system of checks and balances applies to the judiciary as much as the other branches is currently the best way to respect the Constitution and its guarantee of real individual rights. It is vital to the project of American liberty that we restore the Constitution as the law to which judges are bound rather than a template for their creative license.

Who gets to be a federal judge is not a trivial concern to be left to political junkies. In our present climate, it determines the laws we live under and maybe even the country we will be. Conservatives must demand that Republican senators treat the issue with exactly that level of seriousness. Liberal advocacy groups have the Democrats on notice as to what is at stake. We can no longer afford to play the game any differently.

W. James Antle III is a senior editor for Enter Stage Right.

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