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Judicial Restraint Depends on Conservative Self-Restraint 

By W. James Antle III  

The stage has been set for Washington’s latest battle over the shape and character of the federal judiciary.  Last week, the Senate Judiciary Committee voted along party lines to advance the nominations of Janice Rogers Brown and Priscilla Owens, both conservative judges blocked by the Democrats during President Bush’s first term, to serve on federal appellate courts.  If Democrats again filibuster the two women, Republican leaders appear poised to force an up-or-down vote, even if it means detonating the so-called nuclear option.

And this is just one area where the fight over the role of judges in our federal constitutional structure is taking place.  For conservatives, the stakes are high – which is why it would behoove some of us to pause and take a deep breath.

Both House Majority Leader Tom DeLay (R-Tex.) and a fellow Texas Republican, Sen. John Cornyn, have weighed in with rash, counterproductive remarks.  Some of the more over-the-top rhetoric from a recent conference has been repeatedly quoted in order to present constitutionally based opposition to judicial activism as, well, slightly unhinged.

There’s plenty of hyperbole and excess on the other side, too.  Even the most conservative Bush nominees are unlikely to push for the judicial overthrow of the New Deal or see themselves as part of some dark “Constitution in Exile” conspiracy.  But that doesn’t make conservative missteps any less harmful.

These controversies have helped create confusion about the conservative position on the courts.  Instead of a constitutionalist effort to keep judges away from de facto policymaking and impose checks on judicial power commensurate with those on the other branches of government, many now see a populist attack against an independent judiciary based more on opposition to unpopular rulings than fidelity to the rule of law. Bouts of conservative recklessness have also played into the opposition’s hands: Just as the Oklahoma City bombing was used to tar legitimate criticisms of big government, talk of activist judges is being linked to a climate of courtroom violence.

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So let’s dispense with the notion that Brian Nichols was motivated by the federal judiciary’s overly expansive interpretation of the interstate commerce clause and stop quoting Joseph Stalin in support of constitutionalism.  What’s left of the conservative critique of the judicial status quo?

Our legal culture has in recent decades undergone a shift away from the supremacy of the Constitution and written law to the supremacy of court rulings.  This is at variance with the expectations of the Founding Fathers and, predictably, has tempted judges to make law rather than interpret laws.  The judicial branch has seen its power increase at the expense of the other branches of government.   Worse, judges have been free to act as the final arbiters of their own powers.

This development has also adversely affected the elected branches by making them more constitutionally lackadaisical than they otherwise would be.  If the Constitution has no independent meaning outside of what the Supreme Court says it means, why should the president or a member of Congress pay attention to such trivial matters as the constitutionality of their actions?  Nine people in black robes are employed to settle those issues for them.

If conservatives sometimes seem to use judicial activism as shorthand for any ruling they dislike, it’s a habit they have developed as their liberal opposite numbers on the federal bench have repeatedly read their own policy preferences into the law. In Roe v. Wade, the most famous (or infamous) example, Harry Blackmun wrote as if he decided upon the desirability of legal abortion first and sought a constitutional rationale later.  In devising the trimester framework, he was engaged in policymaking rather than constitutional interpretation.  Many liberal legal academics who agreed with the kind of abortion policy Roe enshrined said as much at the time.

We now have decades of legal precedent – upheld even by the conservative appointees of Republican presidents – on issues ranging from abortion to the First Amendment’s establishment clause that differ not only from what could reasonably be described as the Framers’ original intent, but also from the interpretations of the Constitution accepted by all sides for most of our country’s history.  It’s no accident; it’s the logic of a “living” Constitution.

You don’t have to sign onto any “Constitution in Exile” project to acknowledge this.  Cass R. Sunstein, writing in the Washington Monthly, charged that “right-wing activists” seek to restore “the Constitution as it existed in 1932, before Franklin Delano Roosevelt’s New Deal.  Under this Constitution, the powers of the national government were sharply limited.”  Well, what happened to this Constitution?

In this context, some of the more outlandish statements about the power of federal courts begin to make more sense, even when they are not justified.  Often when judges decide to play legislators, the American public ends up more polarized than ever before.  Social conservatives feel disenfranchised.  To many, judge-made law does not seem more legitimate but less.  And in addition to being unpopular, it is extra-constitutional.

 Judicial review is a valuable constitutional check against executive and legislative powers, but there is no good reason for court powers to be unchecked.  This will require the confirmation of judges whose philosophy respects the limits of those powers.  It may also at times necessitate that the elected branches exercise their constitutional authority to regulate the jurisdiction of the federal courts. 

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Jurisdiction stripping is admittedly controversial and even some constitutionalists worry it will be abused to endanger minority rights.  But unlike FDR’s court-packing scheme (to which critics have compared such proposals), it is a recourse provided for under Article III of the Constitution.

Conservatives can only succeed in either task if the public is convinced that the drive to reshape the judiciary is based on constitutional integrity rather than a political power grab.  Opponents of judicial overreach must also be judicious. 









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