May 20, 2008

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 “€œsubscribes 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 “€œcourt-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 “€œfundamental 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.

“€œThe 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 “€œtake 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 “€œaffirms 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 “€œto 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.

“€œTheir 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? “€œThe 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 “€œme-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  


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