Here comes the Judge

Much was at stake in the 2004 elections. Informed voters, across party lines, understood that if Sen. John Kerry won, he would shape the judiciary by nominating liberals to the lower federal courts and, of course, to the U.S. Supreme Court. Similarly, President Bush would nominate conservatives. It's idealistic and naive to pretend that judicial appointments should be above politics and ideology. It just doesn't work that way anymore, if it ever did. To the victors, go the spoils.

If Kerry had won, I'd have been resigned - with no joy - to more liberal justices of the Ruth Bader Ginsburg and Stephen Breyer ilk donning black judicial robes. That's whom President Clinton put there and he didn't give a damn that Republicans weren't happy about it. Well, this time Bush won the presidency and Republicans expanded their majority in Congress. So our side gets its chance to load up the roster. Unhappy Democrats have my most insincere sympathies.

Bush's current nominee, Judge John G. Roberts, is a highly regarded legal scholar and litigator who has been endorsed in the past by colleagues on both sides of the aisle. Contrary to the hyperbole of churlish lefties, Roberts isn't an ultra-conservative, radical right-wing kook; he's merely a respectable, mainstream conservative. National Public Radio's Nina Totenberg, for example, branded him not merely conservative, but "very, very, very conservative." (Ironically, as a liberal, Totenberg would qualify for more "verys" than Roberts.) My guess is, that the Senate will comfortably confirm Roberts in spite of the predictable theatrics of Ted Kennedy, Patrick Leahy and the usual suspects. Democratic opposition will no doubt escalate as Bush nominates other conservatives to the court.

At the heart of the battle is the growing movement of judicial activism by liberals on the bench. Lacking majority support and unable to implement their political agenda through the democratic process in federal and state legislatures, Democrats have turned to the courts, enlisting activist liberal judges to reinterpret the Constitution and statutes according to their personal preferences, legislating by judicial fiat. On the other side, are conservative judges who believe they should be guided by the original intent of the Constitution and the law. If times and circumstances have changed, the appropriate remedy is to pass new legislation or officially amend the Constitution by the prescribed process. The floodgates of judicial activism were opened in 1954 with the landmark Brown v. Board of Education ruling, outlawing segregation in public schools. This may have been good and just public policy, but it was terrible jurisprudence, setting an activist precedent that has since accelerated. The appropriate means to end segregation should have been through legislation or a new constitutional amendment. It might have taken longer, but it would have maintained the integrity of the court. The ends don't justify the means. Rather than relying on any principles of constitutional law, the exceedingly liberal Earl Warren court cited social science theory as its justification. This is confirmed by the New York Times headline the next

day heralding the Brown decision: "A Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather Than Laws."

A harrowing preview of where this slippery slope is taking us was provided by a conference at Yale Law School last April. America's elite liberal law professors assembled to forge a "progressive" (the currently fashionable term for leftist; "progress," that is, on the road to socialism) strategy for reforming the U.S. Constitution by the year 2020.

One of the featured participants was Cass Sunstein of the University of Chicago Law School, author of The Second Bill of Rights, in which he resurrects an idea of FDR's to supplement the Bill of Rights with an economic bill of rights, guaranteeing to every American, under the law, a job, sufficient earnings, housing, food, clothing, medical care and more. Welfare would no longer be charity; it would be a "right."

Bruce Ackerman of Yale upped the ante, throwing in a right of "economic citizenship," guaranteeing every young adult an inheritance of $80,000, funded by a new tax on wealth.

OK, this is a familiar socialist wish list, and we could debate it as a public policy matter. But here's the kicker: These goodies wouldn't be conferred by legislation or an amendment to the Constitution. No, Sunstein advocates that these rights "migrate \[emphasis mine] into the Constitution itself." The explicit design of this crowd is that the existing Constitution be reinterpreted by their kind of judges to mandate this new wave of "entitlements."

"Contrary to the hyperbole of churlish lefties, Roberts isn't an ultra-conservative, radical right-wing kook; he's merely a respectable, mainstream conservative."

What differentiates the two?

lots unless being looked at by a leftie. to them, anybody who doesnt hate America is kook

To throttle the legal Left's socialist wish list and the specter of judicially mandated entitlements - we'll have to abolish judicial review. This is the only guarantee the courts won't be able to impose policies rejected by the voters upon the country through the diktat of judges with an ideological axe to grind. That's the most important step we can take to eliminate the constitutional underpinnings of today's judicial activism.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

4 posted on 07/29/2005 7:30:46 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)

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