PrintAugust 10, 2009
Fighting Back on Federal Judges
Now that Justice Sonia Sotomayor has entered the record book as the first Hispanic member of the Supreme Court, where does the GOP go from here?
When Ruth Bader Ginsburg was appointed to the Supreme Court by Bill Clinton, a review of her record showed her to be a very radical jurist. Even though Democrats had demonized Robert Bork for his political ideology when George H. Bush nominated this outstanding judge to the Supreme Court a few years earlier and even though Clarence Thomas was dragged through the slime when he was nominated a few years after Bork by Senate Democrats, Republicans voted overwhelmingly to confirm Ruth Bader Ginsburg because she met certain standards that Americans, generally, had always considered the real tests of confirmation: she was bright; she was honorable; and she had a solid legal background.
The double standard continued through the last decade. When President Bush nominated men and women who were outstanding legal scholars with impeccable personal integrity, men and women equal in every way to Ruth Bader Ginsburg in those respects, Senate Democrats fought and threatened any Republican nominees whose judicial thinking was not in accord with the Leftist trend of the federal bench.
Beyond that, Presidents George Bush, father and son, showed a shocking willingness to appoint to the Supreme Court individuals who did not have clear and strong positions in favor of strict constructionist approach to the Constitution. For example, Sonia Sotomayor replaced David Souter, one of the most solidly Leftist jurists and the nominee of George H.W. Bush. His son, George W. Bush, displayed a similar indifference to the ideological strength of his convictions when he nominated White House Counsel Harriet Miers to the Supreme Court, until conservative outrage caused her to withdraw, and Bus to appoint Samuel Alito instead. Republican Gerald Ford appointed Justice Stephens as well, a man who has reflexively sided with the Left over the last thirty years.
It is as if the Republican establishment simply had not understood that over the last fifty years the Supreme Court, sadly, has become the super-legislature of the nation. Republicans acted like ostriches, supporting good lawyers with honorable reputations, and pretending that being a Supreme Court justice was intimately connected with an impartial, objective, non-ideological legal system.
Until now. Sotomayor, according to all we know, is a nice person. She is probably a very good lawyer. No one has suggested serious ethical problems with her life. And she is obviously a "true believer" in the cause of using judicial power, rather than representative democracy, to rule our government. There is no doubt at all, either, about the ideological direction in which she would take America. When her confirmation reached the Senate floor, the overwhelming majority of Republicans finally "got it," and voted against her, not on any specious ground but rather on the perfectly legitimate ground that if our Supreme Court has become the ultimate source of political power in America, then conservatives need their partisans on the court and they need to oppose nominees who stand against nearly everything which conservatives profess to believe about government.
There was no need to do what Democrats did to Robert Bork and try to pretend that he was some ogre or to manufacture sexual harassment cases against Clarence Thomas. The federal judiciary has become utterly politicized and thoroughly ideological, particularly at the appellate levels. Democrats did not even pretend that Janice Rogers Brown (a black woman) or Miguel Estrada (an Hispanic) were evil people. They simply declined to vote for what sadly has become an electoral contest for increased muscle on the federal bench for their side. This, too, is just the right approach to take.
If the Republican Party really seeks to regain the enthusiastic trust of the sixty percent of Americans who are conservatives, then this is precisely the sort of political stand that Republican leaders need to take. This does not, in any sense of the word, mean that Republicans should descend to the sort lies and distortions about nominees that the Left has indulged in so long. Rather, it means that every Republican candidate for president or for the Senate needs to begin saying something like this:
"Supreme Court justices and federal judges do not interpret the law: they now make the law. Indeed, they have become the highest law-givers in our political system. We believe this is wrong. Unelected judges with lifetime tenure cannot pretend to represent the will of the people, and any democratic republic must ultimately rest upon the will of the governed, not unaccountable overlords. If we continue to allow ourselves to be ruled by those who are not chosen by us, then democracy itself as well as the protections of a limited republican form of government, will vanish.
"When the federal judiciary begins to manufacture law, when it begins to make our Constitution subordinate to international law, and when federal courts become the ultimate masters of our government, then we as a people will have lost everything we fought for in our long crusade for private liberty. The federal judiciary has become far too strong, far too arrogant, and far too isolated from the people of America. It is one of our highest policy goals to restrain that power by appointing constructionist judges, by enacting laws limiting the powers of federal courts, and by all such other measures that the Constitution allows us to use."
The Founding Fathers intended federal courts -- which could be created or destroyed (except for the Supreme Court) -- to serve a very limited function in our federal system. If Republicans want to win the trust of conservatives again, then they must do again and again, with increasing clarity and voice, precisely what they did in the Sotomayor confirmation: treat the process as part of a critical ideological war, and fight back.
Bruce Walker is the author of two books: Sinisterism: Secular Religion of the Lie, and his recently published book, The Swastika against the Cross: The Nazi War on Christianity.
