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The federal judiciary and other campaign complexities

By Paul M. Weyrich
web posted November 1, 2004

I was discussing the 2008 contest with Alex Mulkern, the thoughtful source of considerable research. If George Bush is re-elected Tuesday then there will be an open seat in the White House four years from now. That usually means a spirited contest in both parties. Sometimes a brutal contest can be avoided when the Vice President runs to give the President, in effect, a third term. George Herbert Walker Bush put away rivals early in 1988, running as an extension of Ronald Reagan's popular two terms. Al Gore was essentially uncontested, running as an extension of Bill Clinton's popular economic policies in 2000. If Bush is re-elected, Vice President Cheney will not run for the Presidency and so the GOP contest would be wide open.

If Senator John Kerry is defeated, then there would also be a wide-open contest among Democrats. It has been widely understood that New York's Senator Hillary Rodham Clinton would run for President and would almost certainly be the Democratic nominee. The betting would be that she would be elected President. Her husband, former President Bill Clinton, would go all out to return to the White House. If Bush did get two terms, no doubt the country would be ready for a change since a second term is likely to be even more rocky than the first.

Alex Mulkern put forth the proposition that instead of going through a tough primary and an even tougher general election, Hillary would prefer a Supreme Court appointment. She could do at least as much damage from a berth in the Supreme Court as she could as President. Moreover, she would avoid all the damage inflicted by a Presidential campaign. She could, after all, lose a Presidential campaign. The more I thought about it, the more it made sense.

If John Kerry is elected Tuesday, then Hillary would still be in the Senate. She could get confirmed without a fight because when left-wingers are appointed, Senatorial courtesy applies. Conservatives defer. When conservatives are nominated, a la John Ashcroft, the left does not defer. They go for the jugular. So Hillary likely would have an easy time of it even if she should be nominated.

Hillary ClintonAlex Mulkern may be on to something. Even if Bush is re-elected, a Democrat would have a much better chance of winning in 2008. Hillary, fresh from her re-election as Senator in 2006, could seek appointment from whichever Democrat would win the Presidency in 2008. Whether or not Hillary shifts gears and goes for the Supreme Court this speculation does again bring to mind the fact that whoever wins the Presidency may have several Supreme Court appointments to make during the upcoming Presidential term. The current nine-Justice Court has been together for a decade without so much as a single change. That is the longest stretch of Supreme Court continuity in modern times.

Unfortunately, the Supreme Court and the Courts of Appeal, where far more than 90% of the contested cases end up inasmuch as the Supreme Court accepts very few disputes, have taken on growing significance. There was a time when the legislature almost always had the last word, unless they tried to pass something blatantly unconstitutional. Now almost anything State Legislatures or the U.S. Congress passes ends up in the courts.

Likewise, when the people voted that vote settled an issue. Now repeatedly after the people vote the courts intervene. One of the worst examples was when Colorado voters passed a proposition saying that counties did not have the right to give homosexuals special rights. The Supreme Court ruled that voters would necessarily be prejudiced against homosexuals to pass such a measure, thus it was unconstitutional. So the all-knowing Supreme Court purported to know what was in the hearts of Colorado voters. That came on the heels of a decision holding that term limits for federal officials, approved by the people of Arkansas, was unconstitutional.

Probably the most important legacy of any Presidency is the Federal Judiciary appointments.

This issue has served to keep the conservative coalition together. Were it not for tremendous admiration for President Bush's nominations to the courts, his conservative coalition might not be holding together as strongly as it is. It now appears that 96% of self-professed conservatives are for Bush. That is because they know that he has made some very impressive nominations to the Courts of Appeal.

In this term Bush has not had the opportunity to make a Supreme Court appointment. But if his Appeals Court nominees are any indication, then conservatives would celebrate when an appointment is made. Court decisions affect all of us, no matter what our issue interests.

Without the court appointments holding together everyone in the coalition, differences over the war, federal spending or McCain-Feingold, etc., would have surfaced more strongly.

I reject the theory that these court appointments are a cynical ploy to keep conservatives in line or that in a second term Bush's appointments would move to the left. I believe that Bush deeply believes in the sort of nominees he has appointed.

For those who ask "Why then hasn't he made a bigger issue over Tom Daschle's Senate blocking his nominees?" First, he has mentioned the court issue in every speech at every stop in every State. Second, the war and the necessity to keep up with the charges being made by Senator Kerry have crowded issues such as the courts.

Marriage and the culture of life get a paragraph each in almost all of Bush speeches. Those issues get tremendous applause.

The President's base understands. It is not clear if independents and the celebrated undecided voters have heard enough about the courts to bring them into the Bush camp.

The Kerry camp has been making courts an issue as well. They say that as President Kerry would have what amounts to a litmus test. No person who believes in the right to life would get appointed to the Courts of Appeals or to the Supreme Court. Only jurists who are committed to preserving Roe vs. Wade as the law of the land would be eligible for the higher courts in a Kerry Administration.

Only 19 of President Bush's Courts of Appeals nominees were confirmed by the Senate. Another dozen were filibustered or are about to be filibustered. (Six others appear to be candidates for the filibuster.) Even if President Bush is re-elected Tuesday, he would be required to renominate those individuals for consideration. It is not clear how many would want to go through that ordeal again.

Tom DaschleHowever, if Senate Minority Leader Tom Daschle is defeated Tuesday and if the GOP retains its majority, it is possible that the next Minority Leader may not want to continue with the filibuster policy. In addition, if Bill Frist is still the Majority Leader, he is determined to change the rules by which the Senate considers judicial nominees. That would be done at the very beginning of the session of the next Congress and not in the lame-duck session that Congress will conduct beginning the week after the elections.

Are judges important? For my money they are the reason to vote for a Presidential candidate. Even the war may ultimately end up in the courts. If somehow in reading this you still haven't made up your mind whom to support, then the courts should be your deciding factor. If you are pro-life, pro-traditional marriage, if you believe courts should not write laws, then clearly one candidate would satisfy you.

If, on the other hand, you believe that Roe vs. Wade was good law, if you see no problem with the courts in effect amending the Constitution without the consent of the governed, if the original intent of the framers of the Constitution is not relevant… if you vote your convictions, you should be for the candidate who advocates that point of view.

It is not too late, if the issue of the courts troubles you, to switch your vote one way or the other. I regret that the courts were not front-and-center of this campaign although I understand why they were not. Regardless, it is not too late to consider these issues now. It may well make the difference what will happen with other issues you care about down the road.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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