Jewish World Review July 1, 2003 / 1 Tamuz, 5763
It's time to take back the Constitution
Moderate, my asterisk.
In the Michigan affirmative action case and the Texas sodomy case, the Court has unambiguously established itself as governmental branch of choice for America's university, metropolitan, and entertainment elites.
The diversity mavens at our elite campuses inundated the Court with amicus briefs in support of Michigan's use of race as a factor in admissions, and swing vote (who is now the left-wing vote) Sandra Day O'Connor bought their bogus argument (even while rejecting the more "rigid point system" used in undergrad admissions) and authored the majority opinion for the Court. So much for the goal of a colorblind society. Then with reasoning eclipsing O'Connor's in its sheer convolution, Justice Anthony Kennedy, writing for the Court in Lawrence v. Texas, found that the Constitution protected homosexual sodomy as a "liberty of the person both in its spatial and more transcendent dimensions." The left was glowing in the aftermath-they know full well that if states cannot ban gay sodomy under our Constitution, then it's only a matter of time before bans on gay marriage are struck down.
Conclusion: neither the will of a democratic majority, nor the Constitution, nor even recent precedent will stop this Court from social engineering from the bench.
How could this have happened? Seven out of the nine justices currently sitting were appointed by Republican presidents!
John Paul Stevens was nominated by Gerald Ford yet has been a stalwart liberal vote for decades. David Souter glided onto the Court after being highly touted by Bush (I) White House adviser John Sununu and then New Hampshire Senator Warren Rudman--conservatives coast to coast still haven't forgiven either of them. Ronald Reagan nominated Sandra Day O'Connor and Anthony Kennedy to the Court with high hopes, but both have turned out to be major disappointments on key cases. From the Casey decision in 1992, where Kennedy earned his nickname "Flipper" for switching his vote at the last minute to favor abortion rights, to this year's affirmative action decision where O'Connor gave a thumbs up to reverse discrimination for diversity's sake, the majority of Republican appointees on the Court have become captives of the same elites who invite them to spend their summer recess as "visiting scholars" at universities at home and abroad or as speakers at high-minded retreats.
What can be done about this? If Republicans don't learn the lesson now, conservatives will feel less and less compelled to send money or devote time to helping the GOP keep winning elections. If these are the sorts of rulings we get with Republican judicial appointees, what's the point?
President Bush must take the same tough-minded, unyielding, approach to choosing his Supreme Court nominees as he did with the war in Iraq and the war on terror. To heck with the critics--they'll oppose anyone you put up short of someone who is adamantly pro-abortion. Indeed the Democrats are so cocky about their successful filibusters of Courts of Appeals nominees, they're now demanding to be consulted before the President nominates someone for the Court. Hillary Clinton warned the White House to work "collaboratively" with the Senate, and to "pick someone who isn't a poke in the eye, who isn't an extremist."
If it weren't so outrageous, it would be amusing. The best approach is for President Bush to nominate an unquestionably solid judicial conservative. No one who waffles at the though of a negative mention in the Washington Post. No one who believes the constitution must "evolve with the times."
Nominating someone for purely political reasons-such as Alberto Gonzales, White House Counsel, and prominent Latino-would be a mistake of Souterian proportions. He was responsible for the Administration's softened position on the affirmative action case, and no reliable conservative court watchers believe him to be a stalwart like William Rehnquist, Antonin Scalia, or Clarence Thomas.
The President has already learned from his father's presidential mistakes--leaving Saddam in office, and raising taxes---but this lesson is, I dare say, more important.
But the burden to corral the judicial activists isn't just on President Bush. It's on the politicians we sent to Washington to represent our interests. On Sunday, Senate Majority Leader Bill Frist supported a constitutional amendment to the Constitution banning gay marriage. Anticipating the Court extending gay sodomy rights to marriage rights, Frist said: "I very much feel that marriage is a sacrament, and that sacrament should extend and can extend to that legal entity of a union between -- what is traditionally in our Western values has been defined -- as between a man and a woman. So I would support the amendment."
The Senate push for such an amendment should happen now, before the courts start striking down the Defense of Marriage Acts that are already law in states across the country. It is not enough for Senator Frist to state his support for such an amendment, he needs to lead to make this amendment a reality.
Let the Democrats align themselves with gay marriage (along with tax increases, and the UN). That will only redound to the Republicans great benefit and perhaps help people realize just how important these judicial appointments are. (We wouldn't need to go through all this nonsense of amending the Constitution if the Court actually stuck to interpreting the Constitution instead of legislating from the bench.)
For almost 30 years, Republican leaders have been telling conservatives to turn out to vote for the GOP because if they don't, we'll have more Roe v. Wade-like decisions handed down by Democrat-appointed liberal justices. Well, here we are, almost four Republican presidential terms later, and yet more Roe-like decisions is exactly what we've gotten.
Mr. President, Senator Frist: Do the right thing.
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04/01/03: Peter Arnett's MOAB