Jewish World Review August 6, 2003 / 8 Menachem-Av, 5763
In a speech last week to a liberal lawyers' group she warned that the Court's recent decisions "should not lull us into complacency about the overall direction of American law," which she claims is far-right and (cliché alert!) "out of the mainstream." As part of her dossier of evidence to support this laughable allegation, she trotted out an old standby, the Court's decision in Bush v. Gore, which she claimed made "a mockery of the right to vote."
How does she explain how a "radically conservative" Court could vote 6 to 3 to uphold race-based affirmative action? Easy. She says "it would have been exceptional for this court or any court to contradict the shared views of the nation's most highly respected public and private universities, Fortune 500 companies, even highly decorated military leaders all at once." In other words, in Hillary's world, justices should forget the Constitution and instead just take a poll of ivory tower and business elites (the military example is absurd) in order to arrive at the right result.
But wait--how does Hillary account for how the Rehnquist-controlled right wing Supreme Court could have produced Lawrence v. Texas, where a right to homosexual sodomy was magically culled from our 216 year-old Constitution? Simple. She says the ruling was "hardly surprising" since it is based on "widely held notions of personal freedom and human dignity." Widely held notions? Has this women been outside Manhattan or Washington lately? The Court for Hillary is not an impartial arbiter, it should track elite opinion.
Hillary had the crowd mesmerized when she said that "the power to criminalize private conduct occurring within the confines of own home is not a power consistent with our understanding of what it is to be an American or our legal tradition." What legal tradition? The Court in Lawrence overturned its own 1986 decision in Bowers v. Hardwick! Tradition quickly goes out the window when it stands in the way of elites' social engineering. And Hillary seems to place all conduct beyond the reach of the law as long as it's behind closed doors. She doesn't bother to limit the principle to sexual matters--but seemingly would call into question laws prohibiting everything from using drugs to fixing prices.
So big deal. Hillary is as left-wing as ever. But don't stop there, because in casting the Court as the great political battleground, Hillary shows how cunning she is as a political strategist. She knows that even if the American voters don't approve of things like gay marriage or bilingual education, courts that are sufficiently liberal might.
Hillary hammers on solid federal appellate nominees like Miguel Estrada and William Pryor because she knows they will not act as super-legislators by treating the Constitution like a piece of Silly Putty. Confirmation gridlock isn't a game. It's political life or death for left-wing Democrats. If they lose the Court, all they're left with are the universities, the media, and the UN.
The danger here for conservatives is that they hear Hillary's complaints about "extreme elements" on the Rehnquist Court and conclude that things can't be so bad. I mean if Hillary thinks the Court is too conservative, that means the Court must be overall on a reasonable course, right? Wrong. That's just what Hillary is hoping for--an unconcerned, uninspired, unmotivated Republican base. If Republicans and moderates are actually led to believe that fighting for the Court and these nominees isn't critical, they'll have fallen into yet another Hillary trap.
President Bush must regularly talk about the importance of the Court--about why the judicial branch matters and why Democrat filibusters against his nominees are so pernicious. If he cedes this territory to Hillary and the Democrats, they will continue to have free reign to whip up the electorate about phantom right-wing extremist judges who want to "turn back the clock" on all of us.
Be afraid. Be very afraid.
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07/30/03: Gray skies just got darker