The Judicial Shakedown
In endorsing the nomination of a fellow Californian to the U.S. Supreme Court, Pete Wilson told the Senate Judiciary Committee in 1987 that Anthony Kennedy “subscribes to the conservative principles which the framers of the Constitution adopted 200 years ago.” As conservatives painfully learned through Planned Parenthood v. Casey, Kelo v. New London, and Lawrence v. Texas, Kennedy subscribed to no such constitutionalist outlook.
Neither did Wilson, whose vote-grabbing rhetoric clashes with his record of hard-Left judicial appointments. The “court-made law” that Senator Wilson inveighed against in his statement to the judiciary committee is a problem that Governor Wilson contributed to. California Supreme Court Chief Justice Ronald George is the most glaring demonstration of this.
Last week, Wilson-appointee George authored the decision codifying homosexual marriage in California, finding for gays and lesbians (and perhaps unnamed others) a “fundamental constitutional right to form a family relationship.” Of the four jurists who overturned the will of 4.6 million California voters and the text of California’s constitution, three are GOP appointees. In fact, Republican governors nominated all but one of the seven judges on the court.
The Republican Party is Pete Wilson writ large. Crusading against judicial activism on the stump, Republican politicians have aided and abetted judicial activism in office. The strange and self-serving lesson that Republicans want voters to glean from Republican judges playing legislator and social engineer is to vote for more Republicans. Conservative voters, generally, grant their wishes.
“The California Supreme Court has just given Republicans an early Christmas gift,” Matt Barber of Concerned Women for America told the San Francisco Chronicle. Otherwise thoughtful pieces—blog posts by Hugh Hewitt, an editorial by National Review, and an article on the Weekly Standard’s site—immediately deconstructed the decision’s jurisimprudence, but neglected to utter the inconvenient truth in their “take out your frustrations in November” narratives that responsibility for this legal malefaction rests with Republicans.
Republican jurists discovering constitutional protection for gay marriage is hardly a man-bites-dog story. The political breakdown of the Massachusetts Supreme Judicial Court that in 2003 divined a right to gay marriage in the world’s oldest operational constitution was (as California’s high court is now) six judges appointed by Republican governors and one judge appointed by a Democrat. As in California, the six Republican appointees split evenly on gay marriage. Even the platitudes justifying the power grab similarly grated the ears. Massachusetts’s chief justice Margaret Marshall, a Bill Weld appointee, wrote the Goodridge v. Department of Public Health decision that “affirms the dignity and equality of all individuals,” just as California chief justice Ronald George, a Pete Wilson appointee, wrote the In re Marriage Cases opinion that elucidated a constitutional right “to choose one’s life partner.”
The most consistently left-wing branch of government is also the most Republican. This is especially evident on the federal level, where Republican dominance in presidential elections has translated into Republican dominance in federal courthouses. Democrats have made just two appointments to the High Court in the last 40 years. The U.S. Supreme Court has had a majority of Republican appointees serving on its bench since the early 1970s. Currently, Ruth Bader Ginsberg and Stephen Breyer are the only Democratic appointees on the court. But they are not the only liberals. How did the other liberals get there? Why don’t Democratic presidents ever carelessly appoint wildcard jurists who surprisingly emerge as constitutionalists? These are questions that party conservatives are loath to ask but principled conservatives must.
Curiously, the judiciary is the branch that fuels Republican volunteers, direct-mail receipts, and ballots.
The threat of a Supreme Court of David Souters is ironically what keeps conservatives voting Republican even when Republicans appoint David Souters.
Like Charlie Brown returning to kick the football that Lucy swipes away again and again, conservatives ritually cast ballots for Republicans under the mistaken notion that they are striking a blow against judicial activism. Years later, these conservatives make the infuriating discovery that they have actually aided and abetted judicial activism. In reaction, they support Republicans even more vehemently than before. Rewarding bad behavior, as any parent will tell you, invites more bad behavior.
The record of Republican presidents who campaigned against robed usurpers but nevertheless appointed robed usurpers is lengthy and disgraceful.
Republican Dwight Eisenhower named Earl Warren chief justice, who presided over a court-engineered social revolution in the 1950s and ’60s. Republican Richard Nixon appointed Harry Blackmun, who less than three years later penned the Roe v. Wade decision codifying abortion on demand. Republican Gerald Ford appointed John Paul Stevens, whose Kelo v. New London opinion green-lighted the taking of private property for corporate interests. Republican Ronald Reagan nominated Anthony Kennedy, who bizarrely overruled his own opinion in Bowers v. Hardwick by finding a constitutional right to sodomy in Lawrence v. Texas. Republican George H.W. Bush placed on the bench David Souter, who (alongside two other Republican appointees) delivered the Planned Parenthood v. Casey opinion upholding Roe. This list is depressing but not, alas, exhaustive.
The cases conservatives cite to demonstrate the arrogance of jurists legislating from the bench are in almost all instances the product of Republican jurisprudence. A majority of justices who voted with the majorities in Roe, Furman v. Georgia, Kelo, and Lawrence v. Texas—outrageous decisions vacating abortion laws in all fifty states, invalidating existing capital punishment laws, eroding private property rights, and making sodomy a constitutional right—were placed on the bench by Republican presidents. While conservatives denounce the decisions, they withhold criticism of the Republican presidents who made an unelected shadow legislature of the courts. Perversely, Republicans benefit from the problem they helped create, which has prompted more than one cynic to wonder if officeholders willfully perpetuate what they rail against during campaign season as a way of forever keeping alive the bogeymen that haunt conservative voters into casting Republican ballots.
“Their grandstanding leaders never deliver, their fury mounts and mounts, and nevertheless they turn out every two years to return their right-wing heroes to office for a second, a third, or a twentieth try,” observed leftist Thomas Frank in What’s the Matter with Kansas? “The trick never ages; the illusion never wears off. Vote to stop abortion; receive a rollback in capital gains taxes.”
The conservative movement set out to capture the Republican Party. Somewhere along the line, the Republican Party captured the conservative movement. Though withholding votes from Republicans is blasphemy among worshippers in the Church of GOP that the conservative movement has become, that option was examined and exercised by leading conservatives in earlier times. As beloved a figure as William F. Buckley refused to vote for Dwight Eisenhower in 1956. He ran a quixotic third-party bid for mayor of New York City in 1965. He founded a third party in New York. The magazine he oversaw supported longshot primary bids against sitting Republican presidents in 1972 (John Ashbrook), 1976 (Ronald Reagan), and 1992 (Pat Buchanan).
The spectre of a judiciary remade in Barack Obama’s image, party conservatives argue, is too ominous to risk with schemes of election-day adventurism. Indeed, voting for Barack Obama to teach Republicans a lesson about getting tough on judicial activism is to cut off your nose to spite your face. At least with President McCain, party conservatives argue with reason, conservatives stand some chance of getting another Antonin Scalia or Clarence Thomas—two of several welcome appointments to the Court by Republicans. With President Obama, there will be no chance.
If an out-of-control judiciary is a powerful argument keeping conservatives in the elephant tent in November, it need not be. The courthouse debacle in California proves that voting Republican, particularly for state offices in blue states where “me-tooism” prevails, makes one complicit in the judicial tyranny that disregards both the will of the people and the letter of the law. Republicans are responsible for overturning the expressed will of Californians by imposing gay marriage upon the Golden State’s law books. What sense does it make to cast a vote against judicial activism in November that rewards the people responsible for it?
Daniel J. Flynn is the author of A Conservative History of the American Left and blogs at http://www.flynnfiles.com.
Comments
What a beautiful essay “ the truth shall set you free.”
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I will let John Paul II, whose ring I was privileged to kiss one week before the onset of his final illness, speak for me about this (from his ad limina address to the bishops of California, Nevada and Hawaii, in 1998):
6...The life of a country is much more than its material development and its power in the world. A nation needs a “soul”. It needs the wisdom and courage to overcome the moral ills and spiritual temptations inherent in its march through history. In union with all those who favor a “culture of life” over a “culture of death”, Catholics, and especially Catholic legislators, must continue to make their voices heard in the formulation of cultural, economic, political and legislative projects which, “with respect for all and in keeping with democratic principles, will contribute to the building of a society in which the dignity of each person is recognized and the lives of all are defended and enhanced” (Evangelium Vitae, 90). Democracy stands or falls with the values which it embodies and promotes (cf. Evangelium Vitae, 70). In defending life you are defending an original and vital part of the vision on which your country was built. America must become, again, a hospitable society, in which every unborn child and every handicapped or terminally ill person is cherished and enjoys the protection of the law.
7. Dear Brother Bishops, Catholic moral teaching is an essential part of our heritage of faith; we must see to it that it is faithfully transmitted, and take appropriate measures to guard the faithful from the deceit of opinions which dissent from it (cf Veritatis Splendor, 26 and 113). Although the Church often appears as a sign of contradiction, in defending the whole moral law firmly and humbly she is upholding truths which are indispensable for the good of humanity and for the safeguarding of civilization itself. Our teaching must be clear; it must recognize the drama of the human condition, in which we all struggle with sin and in which we must all strive, with the help of grace, to embrace the good (cf Gaudium et Spes, 13). Our task as teachers is to “show the inviting splendor of that truth which is Jesus Christ Himself’ (Veritatis Splendor, 83). Living the moral life involves holding fast to the very person of Jesus, partaking of His life and destiny, sharing in His free and loving obedience to the will of the Father.
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And this:
“At the dawning of the Third Millennium, a serious question confronts democracy. There is a tendency to see intellectual relativism as the necessary corollary of democratic forms of political life. In such a view, truth is determined by the majority and varies in accordance with passing cultural and political trends. From this point of view, those who are convinced that certain truths are absolute and immutable are considered unreasonable and unreliable. On the other hand, as Christians we firmly believe that “if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism” (Centesimus Annus, 46).
Thus, it is important that Christians be helped to show that the defence of universal and unchanging moral norms is a service rendered not only to individuals but also to society as a whole: such norms “represent the unshakable foundation and solid guarantee of a just and peaceful human coexistence, and hence of genuine democracy” (Veritatis Splendor, 96). In fact, democracy itself is a means and not an end, and “the value of a democracy stands or falls with the values which it embodies and promotes” (Evangelium Vitae, 70). These values cannot be based on changeable opinion but only on the acknowledgment of an objective moral law, which ever remains the necessary point of reference.”
Message of John Paul II to the Pontifical Academy of Social Sciences, February 23, 2000, available at http://www.vatican.va/holy_father/john_paul_ii/speeches/2000/jan-mar/documents/hf_jp-ii_spe_20000223_acd-sciences-plenary_en.html
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Wow, I didn’t know that NR supported Buchanan in 1992.
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There should be no surprise.
Republicans are Whigs, and Whigs are Revolutionists and Revolutionists are Satanic, and Satanists are sodomites.
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A very worthwhile and informative piece.
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It is an iron cage, not having any ventilation and people are living in the state of suffocation, virtually on the verge of their death point. There is a complete apathy of the custodian of the power towards their welfare and in our country “We, the people “ who are regarded to be the sovereign of the nation are living a life full of abrogation and subjugation. I seldom consider that whether it is worthwhile to shout a voice and thereby invite some lighter sleeper to suffer the agony of the death and this purpose achieved through my writing may serve some purpose. Since the daylight shallow the darkness, I have written articles to take the intellectual from apathetically approach towards rectification of prevailing maladies as to wake up. I am sending herewith my some articles for being displayed by your good self. Yogesh Kumar Saxena, Advocate, High Court Allahabad (India) e mail Address or Phone:- 91/ 0532/637720/2436451, Mobile:- 9415284843
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Kennedy’s performance on the Supreme Court has come as a surprise. No less a Reaganite than William Bradford Reynolds personally assured me at a Federalist Society event in Austin shortly after Kennedy’s nomination that Edwin Meese had long known Kennedy and that Kennedy would turn out well. Does one doubt that Meese and Reynolds sincerely wanted to remake the federal courts?
One shouldn’t overlook the power of legal education and the legal culture in warping the attitudes toward constitutionalism even of right-minded judges—as I develop in _The Politically Incorrect Guide to the Constitution_.
Gerald Ford never claimed to be a constitutionalist, but was a life-long Rockefeller-type Republican. Eisenhower’s appointments antedated his party’s Nixon-era commitment on this issue. Warren Rudman boasted that he intentionally misled constitutionalists into accepting the Souter nomination (although I must note that when Souter praised William Brennan at his confirmation hearings, I thought the nomination should be withdrawn instantly).
Nixon’s appointments, like Reagan’s, were on balance very good. They subtantially moved the center of gravity of the judiciary, despite not having succeeded in reorienting American legal culture completely. But then, it is unrealistic to expect a few appointments to remake the law schools, the media, and the rest of academia, all of which have ongoing effects on judicial behavior.
In sum, I think that presidential elections have had far more effect on the federal courts than this article asserts. Imagine if there had been a string of William O. Douglases these past forty years; even John Paul Stevens is far better than that.
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Again, speaking only for myself, what I was obliquely getting at in the earlier lengthy quotes was that it seems that if the politicians keep telling us (using the word to describe the society as a whole, not particluar individuals, and certainly not me) one thing, and then doing another, and we keep going along with it, then we must really be acquiescing in the train of events as they really are, not as they are promised to be. And this would be because we must at bottom really not want to change to the way things are promised to be. Thus the reference to the “culture of death”, or as has been said, the “cult of individualism”: we don’t really want someone else mandating legally (or in many cases not even morally) how we should behave, even if the mandate would be in favor of traditionally approved social norms and solidarity.
So the problem lies in our hearts, and it is at this level that the profound changes must occur in order for our society to be restored. Nevertheless, since the political realm has an educative function, if our political leaders would follow proper rules of conduct it would help to form the social order for the good. To that end, I call to your attention the following beatitudes for politicans from Cardinal Francis Xavier Nguyen van Thuan, one of the true heroes of the twentieth century (and member of the Ngo Dinh family, perhaps the greatest Vietnamese patriotic family, which gave the country the brothers Diem, Nhu, Thuc and Can, among only the most recent):
1. Blessed the politician who well understands his role in the world.
2. Blessed the politician who personally exemplifies credibility.
3. Blessed the politician who works for the common good and not for his own interests.
4. Blessed the politician who is true to himself, his faith and his electoral promises.
5. Blessed the politician who works for unity and makes Jesus the fulcrum of its defence.
6. Blessed the politician who works for radical change, refusing to call good that which is evil and using the Gospel as a guide.
7. Blessed the politician who listens to the people before, during and after the elections, and who listens to God in prayers.
8. Blessed the politician who has no fear of the truth or the mass media, because at the time of judgment he will answer only to God, not the media.
See http://www.card-fxthuan.org/
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There is one exception I can think of where a Democrat appointee to the Court turned out to be great—Byron “Whizzer” White. Appointed by Kennedy, but one of the few voices of sanity during the Warren and Burger Court.
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It might be helpful to have Republican executives who refuse to tolerate power grabs by
the judiciary, especially when they flout the expressed will of the people as in California.
So far, I cannot recall hearing anything from the Gropinator, although being the depraved
empty suit that he is I’m not surprised. However, ‘Mutt’ Romney showed his true colors five
years ago, when he refused to 1) state that the Massachusetts Supreme Court had clearly abused
its’ power and overstepped its’ bounds and therefore its’ pronouncement would in no way be enforced-
but not ignored as 2) he was bringing all other state business to a halt until he and the legislature
had completed the impeachment, trial and removal from office(including forfeiture of retirement & all
other potential future benefits)of each Justice who had demanded homosexual matrimony, as well as their
replacement by Justices who accepted both limits on their own power and the rights of the people and
the two other branches of government to interpret the(State, in this case) Constitution as well. Of
course, Jorge Boosh has followed the Fatty Rove strategy of empty rhetoric and zero action as well,
combined with celebrating the Dick-of-Five-Deferments’ faggotry-derived grandchild.
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Kevin R. C. Gutzman correctly asserts that those of us tracking Kennedy’s appellate court history and his personal background could not have anticipated what he would do on the Supreme Court. Just as Meece had assured Reynolds who assured Kevin, I spoke with John Noonan, a fellow 9th Circuit jurist who also could not predict the problem Kennedy would be.
Unlike Souter who most pro-lifers did not trust or approve, Kennedy presented well. His wife worked at a local Birthright. He was active in his parish. His decisions contained an internal logic -although not a brilliant jurist in the minds of many - what some referred to as a journeyman.
I do not know what happened. I only pray every day for his conversion.
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Republican presidents and other politicians are hardly trying to prep the country for a post-Roe future. That preparation is necessary to make overturning Roe look like the less radical decision.
Is there a curious, half-likely combination of events that could turn an Obama SCOTUS nominee into a “Democratic Souter”?
How could the law of unintended consequences afflict a Democratic appointee in a positive direction?
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<How could the law of unintended consequences afflict a Democratic appointee in a positive direction?>
They are all radicals, there is nothing conservative about them (being Americans).
If you are looking for conservative action within America, look elsewhere than the “Supreme Court”.
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