A great debate is raging in Washington about whether 130,000 U.S. troops and a small cadre of U.S. bureaucrats can install a representative government in Iraq. But an even more momentous issue is getting less attention than it deserves: Will a few federal judges destroy representative government in America?
If any federal law enacted in the last decade enjoyed a national mandate, it was the partial-birth abortion ban.
Three times, overwhelming congressional majorities sent the President legislation to prohibit what ought to be called doctor-perpetrated infanticide. The first two times, President Clinton vetoed the ban. The second time, in 1998, the House voted 296 to 132 to override Clinton’s veto. The Senate fell just three votes short, 64 to 36.
In 1999, when candidate George Bush made his first campaign trip to Iowa, he vowed to sign the partial-birth abortion ban. There was never any question that if America elected Bush and a Republican Congress the ban would become law.
While Bush was campaigning, however, Clinton, an impeached lame duck, continued naming judges. In February 2000, he nominated Phyllis Hamilton to the U.S. District Court in San Francisco. On May 24, the Senate approved Hamilton and 11 other Clinton nominees by unanimous consent.
Not one Republican senator opposed Hamilton.
A month later, overturning a Nebraska law, the Supreme Court voted 5-to-4 to declare, in essence, that partial-birth abortion was a constitutional right. Two justices in the majority were Clinton appointees: Ruth Ginsburg and Stephen Breyer (who authored the gruesome opinion). Ginsburg had been confirmed, 96 to 3; Breyer, 87 to 9.
Thus in 2002, when voters gave President Bush a Republican-controlled Congress to work with, two things were predictable: 1) Bush and Congress would enact a law banning partial-birth abortion; and 2) federal judges would nullify the law.
In 2003, the House voted 282 to 139 for the partial-birth abortion ban; the Senate voted 64 to 33. Bush signed it into law. The next day Clinton’s judge-by-unanimous-consent, Phyllis Hamilton, issued an injunction prohibiting enforcement of it. This week, Hamilton issued an opinion mocking Congress for passing the law and declaring the law unconstitutional.
Now two more things are predictable: 1) Five Supreme Court justices will uphold Hamilton and overturn a law passed–after almost a decade of national debate–by 282 representatives and 64 senators; and 2) if John Kerry is elected President he will appoint more justices like those five.
Republican senators who declined to oppose Clinton’s nominees are unlikely to oppose Kerry’s. The only hope for putting federal judges back into the little box of limited authority assigned to them by the Constitution is to reelect President Bush and push him to nominate Supreme Court justices just like the nominees he has selected for the appellate court.