'Disrobed': How Conservatives Can Take Back the Courts

In Mark W. Smith’s new book, Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts, he advocates a radical new plan for conservatives to take back the courts. After working with Mark on the research for Disrobed, I spoke with him about the reaction the book has received from conservatives and whether they will embrace lawsuits as lawmaking and conservative judicial activism.

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You begin Disrobed with your reaction to the nomination of Harriet Miers to the Supreme Court. How did conservatives’ reaction to the nomination shape the premise of Disrobed?

Like most conservatives, the Miers nomination was a huge disappointment and made me angry. Thankfully, we dodged that bullet by making it very clear that conservatives weren’t happy. The whole debacle actually helped inspire Disrobed because it proved that not everyone “gets it” when it comes to the courts.

When the White House team defending Miers explained why Miers should be confirmed, I asked them, “Is this it?” This frustration led me to reexamine the entire movement’s approach to the courts.

Disrobed isn’t just another court book that identifies the problem and talks about the way things ought to be. It is a battle plan, based on my experience as a New York litigator and on the reality of our modern court system, to win in the courts in all respects. This means only nominating and seating “Judicial Reagans” to the bench, employing principled, conservative judicial activism, and working to destroy liberalism through strategic litigation.

How has the left taken advantage of the right’s view of the courts?

The left walks all over us in the courts because we don’t play to win. We need to embrace Ronald Reagan’s strategy in the Cold War and apply it to the courts: “We win. They lose.” The left manipulates the courts to enact its left-wing agenda because they know that they could never win in the legislature. Conversely, conservatives on demand that judges apply the “rule of law”—which would be great, except that the only laws that exist for judges to apply are those that have been infected by 50 years of liberal judicial activism.

In Disrobed, you coin the term “Judicial Reagan.” What is a Judicial Reagan? Are there any on the bench now?

A Judicial Reagan is a principled, reliable conservative willing to defend an entire set of conservative beliefs about the role of limited government, free markets, family, and government in American life. A Judicial Reagan would use the courts to advance the American ideals of faith, family and freedom, and he would do so in a manner completely consistent with the Founding Father’s vision of America. Supreme Court Justice Samuel Alito may be a Judicial Reagan, but it’s too soon to know.

In the chapter, “No More Souters,” you outline a litmus test for selecting judges. What are conservatives’ chances for getting these judges confirmed or elected?

Excellent if we toss aside the “conventional wisdom” that nominees should not defend themselves in the media. Ronald Reagan taught us the power of taking our message directly to “We the People” and from now on conservatives who seek to become judges should go into the new media and proudly explain what they stands for and why. Remember, liberals must speak in “code” about their actual political agenda—conservatives don’t.

What would be a key ruling that would signify a major victory for conservative judicial activism?

Striking down urban gun control laws, reversing Roe v. Wade, cutting back on economic regulations and giving American taxpayers greater legal protections against tax authorities. Also, I would love to see a conservative activist judge take over a failing school district and impose a school voucher program. A judicial ruling “in the name of diversity” requiring colleges to adopt affirmative action policies in favor of conservative professors would also be most excellent.

Is this a case of the end justifying the means? After all, what many conservatives consider a constitutional outcome seems to be the same as judicial activism with a conservative agenda?

No, not at all. Disrobed simply explains how to bring back constitutional government using the strategies and tactics of the modern legal system. We want to live in a world envisioned by the Founding Fathers. Disrobed explains how we can achieve such a world by deploying modern legal strategies and precedents to win. Our current approach is akin to bringing a knife to a gun fight.

Many of the tools you mention in Disrobed—litmus test, living Constitution, lawsuits as policymaking—provoke a visceral reaction from conservatives. How feasible is it for conservatives to embrace these tools of the left?

Conservatives need to recognize the differences between embracing the “tools” and the “ideology.” For years, conservatives correctly complained about the liberal media. However, we broke the left’s stranglehold on the media but creating our own “new” media strongholds. So too will we break the left’s stranglehold on the courts by encouraging courts to be allies of conservatives and not enemies.

Now we must apply this same strategy in the courts and we’ve already seen glimmers of this potential. Just last week Justice Scalia wrote for the Supreme Court’s majority a decision that interpreted the Constitution by discussing the “social costs” of the Fourth Amendment’s exclusionary rule. That’s what we need more of—conservative justices considering the social and political consequences of their decisions in the nation’s most important politically charged legal cases.

What has been the reaction to Disrobed and the battle plan you outline for taking back the courts?

Most conservatives are eager to understand why a staunch right-wing conservative thinks our current approach to the courts needs to be completely changed. Disrobed is not “your father’s court book” listing a bunch of complaints, but is instead a catalyst for conservatives to begin an earnest dialogue on solutions to fix the problem. And for those conservatives who disagree and think we should stay the course, I simply ask them to apply the question Dr. Phil has made famous: “How’s that been working for you?” Unfortunately, we conservatives know all to well how bad we’ve been beaten in the courts by the loony left for the last many decades.

Given that your last book, the New York Times bestseller The Official Handbook of the Vast Right-Wing Conspiracy, was fairly consistent with the views of most conservatives, do you think it will help with selling the principles in Disrobed?

I am a professional litigator who handles real cases for real clients in real courts. My professional life is devoted to winning for clients. My “favorite client” is the vast right-wing conspiracy and I want it to win. In my first book, I provided conservatives with the arguments they need to win arguments against liberals whether in the media, at home or at the water cooler. In Disrobed, I applied the same premise to helping the conservatives win in the courts.

One of the most important issues facing the U.S. is illegal immigration. How can conservatives use the courts to respond to this issue?

We need to secure the border against the invasion of illegal immigrants and we also must encourage the full assimilation of legal immigrants into the American way of life. However, nobody is discussing how the courts could help reduce substantially the costs of illegal immigration to the American taxpayer. We are a single Supreme Court decision away from ending the requirement that states must provide free public education to illegal immigrants and their children. If the Supremes reversed the 1982 decision in Plyler v. Doe, then individual states could begin to refuse to pay for free public subsidies for illegal aliens, and the Supreme Court decision would provide moral and legal legitimacy for denying other public funds to illegals. This reversal alone obviously wouldn’t solve the illegal immigration problem, but it would certainly reduce its costs to taxpayers.

Certainly law schools are a battleground for advancing a conservative agenda in the courts. What can be done to encourage law graduates to embrace conservative advocacy rather than pursuing the traditional avenues conservative lawyers tend to take?

Join the Federalist Society to learn about the Founding Fathers, but then learn from your liberal law professors how to use the court system for political gain—then graduate and use the left’s legal strategies to advance free markets, God in the public square, gun rights, defending unborn children and the American way of life.

What was your experience as a conservative in law school?

I was surrounded by “wall to wall” liberalism at NYU Law School, but it taught me how our enemies think and fight. I discuss my experiences lessons in Disrobed.

What can HUMAN EVENTS readers do to break the left’s stranglehold on the courts?

We must all look for ways to turn the courts into allies of the conservative movement by following the battle plan I outline in Disrobed. We must teach ourselves to always ask “what can the courts do to advance the conservative agenda?” Remember, it was Paula Jones’ lawsuit that got Bill Clinton impeached and helped put George W. Bush in the White House.