Dubya and the courts: Don't get too excited

By Douglas Newman
web posted September 18, 2000

They tell me I am supposed to be breathlessly excited about this year's presidential election. They tell me I am throwing away my vote by supporting a third-party presidential candidate. They tell me there are monumental differences between Bush the Younger and Al Gore.Yet when I pin down rank-and-file Republicans, I find that they are not that excited about George W. Bush. He is merely the lesser of too evils.

The last ditch reason they give for supporting him is one that no one ever seems to argue with: The Courts! Do I really want to risk the prospect of algoristas using the Supreme Court to run roughshod over the Constitution?

Joseph Farah of WorldNetDaily is about the only prominent journalist so far to issue a challenge to this argument. In his column of September 7, he outlines why conservatives should be less than thrilled about the prospect of W. picking justices for the Supreme Court.

Farah cites a decision earlier this year in which the Texas Supreme Court ruled 6-3 in favor of a statute allowing a 17-year-old to have an abortion without notifying her parents. Bush appointed four of the nine justices on the court, and was an ally of a fifth, Harriett O'Neill, who wrote the majority opinion. In other words, this outcome would not have been possible without Bush appointees. Farah also cites some liberal watchdog groups who praised Bush for moving the Texas Supreme Court toward the center. (Might we say that he has "grown" in this department?) Bush is not alone in his lackluster record of judicial appointments. The entire Republican Party has considerable explaining to do on this issue.

Eisenhower appointed Earl Warren; Nixon appointed Harry Blackmun, and Ford appointed John Paul Stevens. It has been almost 20 years since Ronald Reagan took office. In all but two of these years, we have had Republican presidents and/or Republican senate majorities. Therefore we can blame Republicans for the current mess in the courts.

Bork: The man who became a verb
Bork: The man who became a verb

But hasn't Clinton been packing the courts with flaming leftists for the last eight years? Indeed he has. But he has done it for the last six years with the blessing of Republicans. Judicial appointments have been a virtual non-issue, as Republicans have rubber-stamped nominee after nominee. If I were a senator, I would "Bork" every last Clinton nominee. Let the media scream about gridlock! This is exactly what the Founders intended.

Republicans get elected by branding Bill Clinton as the anti-Christ, yet do next to nothing to thwart his agenda. They have controlled both houses of Congress for almost six years. Not only is government as large, costly, and intrusive as ever, but also the courts are as reckless in their disregard for the Constitution as ever.

Seven of the nine current Supreme Court justices are Republican appointees. Any decision by the Court requires support by at least three Republican nominees. The recent ban on prayer at high school sporting events, as well as the horrifying reversal of Nebraska's ban on partial- birth abortion are cases in point. At the circuit level, the decision to break up Microsoft was authored by Thomas Penfield Jackson, a Reagan appointee. Roe v. Wade will likely remain the law of the land no matter who is elected.

Article III, Section 1 of the Constitution speaks of a "supreme Court". That the adjective is not capitalized indicates that the Founders vested little importance in it. Article III, Section 2 spells out the powers of the Court, which are very limited. Although, in the 1930s, the Court declared the Tenth Amendment a "dead letter", it is still very much part of the Constitution, and limits the judicial branch just as much as it limits the executive and legislative branches. The Court's current power is evidence of how far we have strayed in our understanding of the Constitution.

A third-party candidate (I am supporting Harry Browne of the Libertarian Party) may have as much chance of winning this fall's election as he does of pitching in this fall's World Series. However, if you always do what you have always done, you will always get what you have always gotten. If you continue settling for the lesser of two evils, you still get evil. Do you want to continue supporting evil? Do you?

Douglas Newman lives in Aurora, Colorado and is the force behind Christian-Libertarian web site The Fountain of Truth. This is his first contribution to Enter Stage Right.

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