The Judges War: An Issue of Power

Behind the modern conservative movement that first found a champion in Barry Goldwater were several burning concerns.
The first was anti-communism — outrage at FDR’s "Uncle Joe" diplomacy at Yalta, Truman’s "no-win war," the firing of Gen. MacArthur, softness toward Soviet spying and homegrown treason.
A second issue that rallied the Right was the Warren Court. In the 1930s, conservatives had turned back FDR’s effort to "pack the court," but after 20 years of Roosevelt-Truman appointees, the court was packed. Ike’s pick, Earl Warren, completed the job.
The Brown decision of 1954, desegregating the schools of 17 states and the District of Columbia, awakened the nation to the court’s new claim to power. Hailed by liberal elites — and finding no resistance from a Democratic Congress or president who spent his afternoons at Burning Tree — Warren’s court went off on a rampage.
It invented new rights for criminals and put new restrictions on cops and prosecutors. It reassigned students to schools by race and ordered busing to bring it about, tearing cities apart. It ordered God, prayer and Bible-reading out of classrooms. It said pornography was constitutionally protected, making Larry Flynt and Al Goldstein First Amendment heroes, rather than felons. It ruled naked dancing a protected form of free expression. It declared abortion a constitutional right and sodomy constitutionally protected behavior.
It outlawed the death penalty, abolished terms limits on members of Congress voted by state referendums, and told high school coaches to stop praying in locker rooms and students to stop saying prayers at graduation. It ordered the Ten Commandments out of schoolhouses and courthouses. It condoned discrimination against white students in violation of the 14th Amendment’s guarantee of equal protection. And, two weeks ago, in a 5-4 decision, the Supreme Court ruled that towns can seize private homes and turn them over to private developers.
In every election since 1964, the court — its liberal bias and usurped powers — has been at issue. Nixon’s narrow victory in 1968 was attributable in part to his pledge to "strengthen the peace forces as against the criminal forces in society" and put a Southerner on the Supreme Court.
Attacks upon court decisions seen as pro-criminal and anti-Christian have been a staple of Republican oratory that has given the GOP seven victories in 10 presidential elections and raised party strength from a third of the House and Senate in 1965, to majorities in both houses in 2005.
Hence the Judges War. Left and Right both know that at stake in the nominee to replace Sandra Day O’Connor is control of the last citadel of liberal power in America. For not one of the radical reforms imposed by our judicial dictatorship would have been approved by Congress.
If conservatives can recapture the court, social and moral issues can be returned to where they belong: elected legislatures and executives. The Left will lose its power to advance its social agenda and see a rollback of a revolution imposed undemocratically upon America over 50 years.
The Left gets it. Liberals smeared Nixon nominees Haynesworth and Carswell as racists and tried to derail Rehnquist. They gave Reagan’s moderate nominee, O’Connor, a pass, while savaging conservative Robert Bork. They let Bush I’s stealth candidate Souter through, but attempted the "high-tech lynching" of Clarence Thomas.
But Republicans often do not get it. Clinton nominees Stephen Breyer and Ruth Bader Ginsberg sailed through without resistance. Though Ginsberg was a card-carrying ACLU activist, she got every GOP vote but those of Jesse Helms and two others.
Does Bush get it? He needs three seats to capture the court, that of Chief Justice Rehnquist when he retires, that of O’Connor, now open, and that of one other justice, as long as it is not Antonin Scalia or Thomas.
Bush can succeed where every Republican president in 50 years failed: to rein in this radical and renegade court and restore the Constitution to its rightful place as the highest law in the land: to be interpreted by Supreme Court justices, and not perverted to their own ideological and political ends.
To succeed will take perseverance and courage by President Bush. But if he does, he will leave a mark on history. It will be his greatest domestic achievement, for which his country will forever remember him, his friends will praise him and his enemies will be eternally gnashing their teeth. Let’s get it on.