Posted on 11/17/2003 5:18:22 PM PST by GaryL
Column: The closet conservative
By Gary Livacari
"The Constitution requires an interpretation of the law... We want judges who will interpret the law and not make the law." (Sen. Charles Schumer, D-NY, on the Senate floor, Nov. 12, 2003.)
I suddenly and violently arose from my seat in the Senate gallery - I thought I was hallucinating. It was getting late and I was definitely tired from a long day of debate. Could this really be true? Were these the words of Charles Schumer? It sounds more like an individual such as Justice Clarence Thomas, Antonin Scalia, Sen. Rick Santorum (R-Pa.) or even former President Ronald Reagan. But Chuck Schumer? It can't be, he's a liberal!
Indeed, I was in complete and utter amazement after hearing this rhetoric during the recent Senate filibuster debate, especially coming from the mouth of the ultra-liberal, Sen. Schumer. It was shocking to hear Schumer passionately and vehemently defend a limited role for the federal judiciary, while further warning of the ultimate dangers of judges "who are out of the mainstream... and think they are above the people." Had I unfairly misjudged Schumer all these years? Senator Schumer was actually articulating classic Republican ideals rooted in the limited government political philosophy of Jefferson and Jackson. My newfound respect for Sen. Schumer was short-lived. He soon went on to hypocritically condemn President Bush for supposedly appointing judges through a narrow "ideological prism;" alleging that Bush's "partisan" judges would be incapable of upholding the law and would ultimately fall victim to judicial activism.
If history is to be any indicator, we have no reason to fear conservative judicial activists. On the contrary, if Schumer is genuinely concerned about judicial activism he need only revisit Roe v. Wade. This case is a striking example of liberal judges adhering to a "loose constructionist" interpretation of the constitution; they are the real perpetrators of the kinds of judicial violations he so eloquently articulated on the Senate floor.
While the moral legitimacy of abortion is a debate that has reached an irreconcilable, national stalemate, one thing is for certain: the case of Roe v. Wade constituted an unprecedented, judicial usurpation of democratic powers previously reserved to the states and to the people. Indeed, I actually agree with Sen. Schumer - and Thomas Jefferson - in saying that in this "evenly divided" and highly polarized country, certain equally polarizing issues should not be left to the whims of ideological, unelected and irremovable federal judges.
Ironically, this is precisely what transpired in Roe v. Wade. The Supreme Court deprived the American people their constitutional right to legislate on such an explosive and turbulent issue through their state legislatures. Instead, the activist Warren Court, with "grown in office" Harry Blackmun writing for the majority, interpreted the Constitution as a "living document" and crafted an irrevocable, federal mandate immune from any democratic recourse by the people. Undoubtedly, an issue as volatile as abortion should be left to the states, for only they can adequately represent the democratic will of the people. Even the iconic, liberal pro-choice constitutional scholar of Harvard University, Lawrence Tribe, agrees that Roe was "a gross usurpation of power." In one absolute stroke of the gavel, this liberal activist Court overturned the legislatures of all fifty states - And Schumer is worried about conservative judges?
If Sen. Schumer is really concerned with judicial activism, maybe he should first look at the grievous judicial record of his own party, instead of shamelessly lecturing President Bush on the importance of nominating "moderate" judges who can be trusted to uphold the law. Apparently, Sen. Schumer is a "selective" strict constructionist, believing the Court is forbidden from "making laws" only when such laws contradict his progressive ideology or that of Beltway feminist interest groups whose support is crucial to his future re-election. If the matter is associated at all with abortion, school prayer or anything else that might lend legitimacy to Judeo-Christian morality, then he immediately reverts back to the "old" Chuck Schumer and the "loose" construction philosophy that sanctions judicial activism. Either way, the constitution is irrelevant.
It is still nice to see that Democrat's at least have the potential to exhibit conservative principles, even if it is only a temporary stunt to fulfill their own, partisan purposes.
-The writer, a freshman majoring in political science, is a Hatchet columnist.
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