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Jewish World Review Oct. 7, 2003 / 11 Tishrei, 5764

David Limbaugh

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Judicial activism issue favors GOP | Democratic presidential contender Sen. John Kerry said last week that he is concerned that if President Bush is re-elected he will appoint pro-life judges to the federal bench. That, he says, demonstrates Bush's "unwavering commitment to refashioning the court in the ideological image of the far right."

So we now have a powerful senator, a major player seeking the highest office in the land, going on record saying that anyone who supports the unborn's right to life is "far right." Translation: Those who support human life are extremists.

Kerry did not attempt to deny that he would attempt to block the nominations of all judges who are pro-life. Up to this point, most Democratic politicians have talked around the issue, vigorously opposing pro-life nominees, but denying they were engaging in a de facto litmus test to that end. With Kerry out of the closet, it will be more difficult for the left to deny its anti-life judicial agenda.

I don't know about Republican Party honchos and the quarterbacks of the Bush re-election effort, but I'm ready to take this fight to the American people. I think the voters need to understand that a vote for Democratic presidential and congressional candidates aids the cause of the radical feminist movement and the militant pro-abortion lobby.

I think a majority of Americans, these days, are pro-life, especially in view of recent and ongoing scientific data supporting the obvious reality that the unborn are live human beings, entitled to dignity, respect and, yes, life. Beyond that, what liberals are saying is that they regard the judiciary as an institution that can "legislate" policy they are not able to implement through the constitutional process.

It is interesting that Democrats have admitted in recent years that they fully intend to use the courts to further their policy agenda — that judicial activism to effectuate their goals is justified and desirable. Yet when a Republican President is in power, they cry foul at the suggestion that he might appoint conservative judicial activists.

In fact, most conservative judicial nominees are not judicial activists — they believe that the Constitution ought to be interpreted according to its plain meaning and the original intent of the framers. Rolling back liberal judicial activism is not conservative activism.

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If the Court, for example, were to reverse Roe vs. Wade and return the abortion issue to the state governments to regulate as they see fit, it would not be conservative judicial activism. It would be an eradication of that gross judicial decision that usurped state authority over the issue based on a constitutional right to privacy that exists nowhere but in their imaginations.

Liberals are fond of citing the Supreme Court's decision in Bush vs. Gore as an example of conservative judicial activism. The Republican Court, they say, selected George Bush as president. But they fail to point out that the Court was correcting egregious unconstitutional decisions by the Florida Supreme Court. The liberals raised not a hint of objection in the face of those obscene decisions.

Moreover, it's a stretch to characterize this Supreme Court as conservative, even though Republican presidents appointed most of its members. A predominantly conservative court wouldn't have affirmed the grotesque practice of partial-birth abortion based on misleading information about the health of the mother.

By and large, conservatives support constitutionalist judges who will operate within their proper sphere of authority so as to preserve the vital separation of powers that is essential to our liberties.

In the presidential campaign, Republicans should welcome the opportunity to debate the issues of judicial activism and society's overall respect for the sanctity of human life. Do we want a superlegislature whose members have lifetime tenure and are unaccountable to the people? Or do we want legal scholars who will interpret the Constitution with objectivity and not through the prism of their own political preferences?

Democrats have been blocking President Bush's nominees with alarming frequency, in many cases denying them a hearing before the full Senate. While Republicans' hands are not entirely clean on this, the level of Democratic mischief in obstructing President Bush's appointees is unprecedented and threatens the president's appointment power. It truly is past time that we take steps to rein in this imperial judiciary and restore the policy-making prerogatives to the executive and legislative branches of government.

If Republicans articulate this issue clearly it will be a sure winner, because at heart it is democratic. It will restore power to the people and their elected representatives. So let the fight begin.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of, most recently, "Persecution: How Liberals Are Waging War Against Christianity". (Click HERE to purchase. Sales help fund JWR. ) Comment by clicking here.