AJ DiCintio

Republicans & The Courts
November 21, 2008

Let’s face it. It’s always about “the economy,” stupid or not. And for the foreseeable future it will be so in spades, a fact, by the way, that demands Republican leaders follow main street conservative principles as they devise economic policies that put the American people first.

However, like the executives of our auto companies, Republicans must understand they can’t survive by fixing one thing at a time; for especially in politics, issues have a way of coming up when least expected — taking a stance on a judicial nominee, for example.

I mention the judiciary because with regard to it Republicans have some serious fixing to do. Why? To answer that, let’s review the ironic quality of Republican “production” and “marketing” of judicial policy since the fifties.

To capture this irony, it is essential to say first that the struggle between liberal judicial activists and Jeffersonians strikes at the heart of the following proposition, one with which virtually every Republican (indeed, a solid majority of Americans) will agree:

Resolved: Jefferson was absolutely correct to say that having been granted certain “unalienable Rights” by “their Creator,” the people — not an all-powerful central government and certainly not a gang of five (or more) Supreme Court justices — are the only legitimate makers of law and the best guarantors of liberty.

But what happened when Earl Warren (an Iago not simply to Eisenhower but to the Constitution, the American people, and every Jeffersonian principle) joined with liberals (who can’t stand democracy when it stands in their way) to establish the Supreme Court as a super arm of government?

Did Republicans react as if the nation were attacked by an external enemy?

Did they begin a “war” against that enemy, asserting that by definition an “activist” judge of any stripe deserves to be impeached and found guilty of thumbing his nose at the constitutional principle of separation of powers?

Did they quote Washington so many times that after decades of repetition his words would be recognized even by school children?

“[Members of government’s three branches must] confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”

“Let there be no change [of constitutional powers] by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Did they quote Jefferson, who so much hated the judicial “activists” of his time that he denounced them as self-anointed dictators who insidiously take advantage of the constitutional “error” of lifetime appointments?

“It is a misnomer to call a government republican in which a branch of the [federal government] is independent of the nation.”

“But we have made [federal judges] independent of the nation itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.”

Yes, Jefferson mocked activist judges as drooling, senile, power loving frauds who are safe in their positions for life because politics renders impeachment not just a “scarecrow” and “bugbear” but an outright “farce.”

But have we ever heard Republican leaders discharge their duty to the nation by eschewing talk of “Federalism” (a term few Americans understand) and “legislating from the bench” (a vague, merely “political” concept to most Americans) to use Plain English to argue that at its core, liberal judicial activism regards the people of the fifty states as ignorant slobs who need to be guided by as few as five black-robed über-citizens — actually, über -humans?

No. However, what we have heard and seen from 1960 to the present is this:

Of six Supreme Court justices nominated by Democratic presidents, all were dyed-in-the-wool liberal judicial activists except for Byron White (Kennedy).

Of eleven Supreme Court justices nominated by Republican presidents, two, John Paul Stevens (Ford) and David Souter (G.H.W. Bush), are quintessential liberal activists and one, Anthony Kennedy (Reagan), is a 50% liberal activist — though nearly 100% so on “big issues.”

Eliminate the Republican “moderates,” and we understand how liberals, who represent just 18% of the population, have wielded so much power in the Court.

But it isn’t just Republican presidents who have “taught” the public that Supreme Court nominations are no big deal.

Here is the record of Republican Senators amazingly compiled since liberals escalated their insidious war on the Constitution by trashing Jeffersonian judges as racist, misogynist fascists (see Ted Kennedy’s infamous sliming of Judge Robert Bork).

— Of 43 Republican Senators, 40 voted to confirm the extreme-left liberal activist Ruth Bader Ginsburg as a “compromise” nominee for the Supreme Court.

— Then, 33 of 42 Republicans voted to confirm Stephen Breyer, a raving liberal activist who has been particularly outspoken that the “job” of judges is to “decide” everything.

No, while liberals fight their anti-democratic judicial battles with ferocious anger, hate, and slime, Republicans haven’t thought it important to defend the Constitution and the American people with every bit of the skill and energy Jefferson displayed in that same cause.  

— No matter that in their decisions, liberal activist justices invoke the perfectly mad medieval notion that words emit “emanations” that create “penumbras” that speak volumes to a special few (see Roe v. Wade).

— No matter that one day those drooling, black-robed dictators declare something inherently unconstitutional (despite the fact that the Constitution explicitly approves of it) and the next day argue they have based a decision upon “evolving standards of decency that mark the progress of a maturing society” (as determined by themselves).

— No matter that they are “informed” (whatever that means) by extra-constitutional foreign laws (laws whose “information” somehow always conforms to their opinions).

— No matter that every nationally prominent Democratic Senator, including Senators Obama, Biden, and Clinton voted against the confirmation of both John Roberts and Samuel Alito.

No, all that is not enough to spur Republican Senators to real action, which explains why in the fall of 2008, Republican presidential candidate John McCain boasted (boasted!) that he had voted to confirm Ginsburg.

But that’s not all.

At an important moment in a debate, McCain wasn’t up to speed on judicial issues to the extent that he missed the perfect opportunity to educate the public about the game “moderate” Democratic presidents have played since the sixties by pointing out that while Obama may say he disagrees with this or that Supreme Court decision, he will nominate exactly the kind of justices who agree with the 5-4 majority that in June of ’08 had ruled the death penalty unconstitutional for the rapist of a child — no matter the nature of the rape or its frequency (Kennedy v. Louisiana, June, ’08).

That usurpation of power by the Court occurred despite the fact that the Constitution mentions capital punishment more than once.

Talk about regarding the people of the fifty states as ignorant slobs not to be trusted with profound questions, including one as stunningly important as a fitting punishment for the rapist of a child.

And talk about Republican unconcern and ineptness regarding judicial issues.

Well, having reviewed a good bit of the defective judicial product Republicans have built and the ineffective, uninspired marketing they have promulgated since the fifties, we are left with this question:

Will the Republican Party construct an honest, reliable Jeffersonian judicial policy and offer it to main street America in plain, energetic language; or will it continue to ignore and insult the basically conservative majority of Americans by ignoring their beliefs and desires — to obsess, instead, over the notion that in true fifties Country Club Republican fashion says, “What’s good for big business is always good for the country.”