The principal speakers at the Democratic National Convention conspicuously avoided one topic: the courts. Speakers declined to say what kind of judges Democratic presidential candidate John Kerry would appoint, how his choices might affect future court decisions or why the Democrats blocked President George W. Bush's judicial appointments.
This silence about the courts is especially odd given that the Democratic Party has become a party of lawyers and that lawyers were given the prime time podium at the convention. Call the roll: Sens. Kerry and Edward M. Kennedy of Massachusetts, Sen. John Edwards of North Carolina, Sen. Hillary Rodham Clinton of New York, former President Bill Clinton and keynote speaker Barack Obama, a candidate for the U.S. Senate from Illinois.
If these lawyers think they can run government better than Republicans, why didn't they draw on personal expertise to say why they blocked Bush's judicial nominees and how Kerry's nominees would be better?
The only speakers who complained about the courts were the Rev. Al Sharpton and former Vice President Al Gore, who in his 2000 presidential campaign promised to appoint judges who believe the "Constitution is a living and breathing document" to be interpreted by "evolving experience."
Extreme Bush haters - such as Michael Moore, the producer of Fahrenheit 9/11 - are fond of claiming that Republicans stole the 2000 election and promote other wacky conspiracy theories. But those complaints were kept away from the Democratic National Convention.
Apparently, Democratic strategists decided campaign rhetoric about right-wing judges and back-alley abortions doesn't scare voters. We already have a left-wing judiciary and everybody knows it.
Recent U.S. Supreme Court decisions have been against the Bush administration's handling of terrorism suspects, in favor of affirmative action, in favor of homosexual sodomy, in favor of limiting capital punishment and against restricting the flow of pornography to children via the Internet and home computers. The court even hinted it might declare the Pledge of Allegiance unconstitutional the next time it is challenged in court.
Kerry and Edwards probably agree with those decisions. But their legal philosophies are unpopular with the swing voters they need so badly.
Edwards, who represents the worst of the legal profession, made millions by using claims backed up by junk science to sue obstetricians. These lawsuits have caused malpractice insurance in many states to skyrocket and have driven many good physicians out of business.
Kerry claims he opposes gay marriage but voted against the Defense of Marriage Act, which would protect other states from having to recognize Massachusetts' same-sex mischief. He opposes legislation to maintain the traditional definition of marriage and praises judges who presume to redefine it.
Kerry's paradoxical position can be explained by saying he is a judicial supremacist who believes unelected judges should have final say on controversial social policies. He and other liberal Democrats know that many of their policy objectives can be achieved only with the cooperation of activist judges.
Antonin Scalia and Clarence Thomas are the only Supreme Court justices who eschew judicial supremacy and believe in relying on the actual text of the Constitution and statutes. They are the only justices who have coherent legal philosophies respected by legal scholars and are the most reliable defenders of constitutional rights. It was Scalia who wrote the majority opinion for two of the big cases of 2004, decisions that guaranteed a criminal suspect's right to a fair trial.
In Crawford v. Washington, Scalia affirmed the constitutional right to confront witnesses. In Blakely v. Washington, Scalia led a 5-4 majority in affirming the right to a jury trial, as opposed to allowing judges to impose extra-long sentences based on evidence never submitted to a jury.
When the president said Scalia and Thomas are examples of judges who base their judgments strictly on the words of the Constitution, he was stating just what Americans expects from their judges. The alternative is for judges to base their decisions on personal political views and supremacist attitudes.
It's not that Scalia and Thomas always agree; they don't, and they have had some sharp disagreements so far in 2004. Justice Ruth Bader Ginsburg agreed with Justices John Paul Stevens, David H. Souter and Stephen G. Breyer more often than Thomas agreed with Scalia. What makes Scalia and Thomas seem similar is that they are the only Supreme Court justices who actually do their jobs the way judges are supposed to.
The president says, "We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order." When a Supreme Court vacancy occurs, we expect the president to stand down the Daschle Senate and appoint another Scalia or Thomas.
Kerry has flip-flopped on what sort of litmus tests he might apply to his appointments, but it seems clear that he wants to appoint judges who will remake U.S. culture by court order. He just won't admit it on national television, and speakers at the Democratic National Convention were indeed "issued muzzles," as U.S. Sen. Zell Miller, D-Ga., charged on "Meet the Press."
