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Jewish World Review Oct. 25, 2000 / 26 Tishrei 5761

Don Feder

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New High Court with new president will impact generations -- IN CHOOSING a president for the next four years, voters could determine the course of the Supreme Court for the next generation.

Like Caesar's Gaul, the current court is divided into three parts -- a left/activist bloc of four (Justices John Paul Stevens, David Souter, Steven Breyer and Ruth Bader Ginsburg), a conservative bloc of three (Chief Justice William Rehnquist, Justices Clarence Thomas and Antonin Scalia) and two swing votes (Justices Sandra Day O'Connor and Anthony Kennedy). Notwithstanding misleading media references to the court's "conservative majority," the left has the upper hand. It need coax only one swing vote to its side; the right needs both.

Six years have past since the last vacancy on the high court, the longest gap between appointments in 177 years. Odds are that the next president will make at least three appointments. Stevens (age 80), Rehnquist (76) and O'Connor (70 and ailing) top the go list.

The left has an edge here, as well. Gov. George Bush would have to replace both Stevens and O'Connor with strict constructionists to give the court its first conservative majority in 60 years.

Vice President Al Gore would only have to replace either O'Connor or Rehnquist with an activist to give the left firm control of the most powerful branch of government.

While voters are unable to focus on this crucial aspect of the election, the left knows well what's at stake.

On opening day of the court's fall term, groups like Planned Parenthood, Handgun Control, the National Education Association and the Human Rights Campaign held a press conference to warn that a "right-wing Supreme Court" (presumably resulting from a Bush victory) would "wreck havoc on many of the rights and liberties that Americans have come to take for granted."

Translation: Our agenda is so bizarre and extreme that we can't get it from Congress or state legislatures. Only judges completely isolated from the electorate and thoroughly indoctrinated in the liberal worldview can continue the deconstruction of American society.

Former U.S. Appeals Court Judge Robert Bork observes, "We must judge the Court these days not in terms of constitutional reasoning, but in terms of ideology and politics." A survey of decisions handed down last spring confirms Bork's judgment.

It took both swing votes to allow a private organization, the Boy Scouts, to determine its values and the message it projects to its membership and the public.

Contrary to the clear intent of the Founding Fathers, the court's majority continued its war on the holy. Public school students are not to be allowed a voluntary, student-initiated invocation at football games.

However, while upholding the right of a locality to regulate exotic dancing, the justices declared such exhibits a type of "expressive" behavior entitled to considerable protection.

Perhaps the students' prayer would have met constitutional muster if their worship had taken the form of a nude dance.

On abortion, the court went just plain nuts -- throwing the First Amendment and compassion out the window to safeguard a right it fabricated a quarter-century ago.

By a 5-4 vote, the court held a Nebraska statute prohibiting partial-birth abortions (a three-word synonym for infanticide) "unduly burdened" the right to dispose of the unborn.

But it upheld a Colorado law prohibiting a demonstrator, within 100 feet of an abortion clinic, from coming closer than 8 feet to another person to distribute a flyer, display a sign or "engage in oral protests." This obvious political expression was not constitutionally protected speech, the court ruled. Thus the First Amendment allows a doctor to vacuum out the brains of a child four-fifths delivered but does not protect protests against the same.

The Supreme Court is just one vote away from legislating gay marriage, abolishing the death penalty, legalizing euthanasia and declaring school vouchers unconstitutional.

Bush says he doesn't believe in "liberal, activist judges," but will appoint "strict constructionists" who "look at the Constitution as sacred." Gore thinks the Constitution is "a document that grows with our country" -- rather like Jack's beanstalk, climbing into the stratosphere of unreality. Here, at least, the choice could not be more stark.

JWR contributing columnist Don Feder's latest books are Who is afraid of the Religious Right? ($15.95) and A Jewish conservative looks at pagan America ($9.95). To receive an autographed copy, send a check or money order to: Don Feder, The Boston Herald, 1 Herald Sq., Boston, Mass. 02106. Doing so will help fund JWR, if so noted. He is also available as a guest speaker. To comment on this column please click here.


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© 2000, Creators Syndicate