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From coast to coast, judges who fancy themselves legislators are setting public policy by judicial fiat.

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Empathy for Terror Suspects

From coast to coast, judges who fancy themselves legislators are setting public policy by judicial fiat.

Homosexual couples. Illegal immigrants. Terror suspects. Over the past month, America’s highest courts have discovered for each of these groups constitutional rights that had somehow eluded jurists for more than two centuries.

Late last month, the California Supreme Court found a heretofore unknown constitutional right for men to “marry” other men, and earlier this week the United States Supreme Court ruled that foreigners may overstay their visas, even if they’ve signed agreements to leave.

That ruling came in the wake of the High Court’s decision to extend the constitutional right of habeas corpus, which allows prisoners to challenge their detainment in U.S. civilian courts, to suspected terrorists captured on the battlefield while trying to kill Americans.

That’s not to say that the judiciary has a soft spot for all groups. Take, for instance, unborn children, who time and time again have been denied the Constitution’s — and nature’s — most basic right, to life.

The Supreme Court’s decision in Boumediene v. Bush is a travesty, not least because of the message it sends to the military: that the terrorists trying to kill them are entitled to more rights under the U.S. Constitution than are U.S. soldiers, who cannot appeal military court rulings to civilian courts.

The ruling will also, as Justice Antonin Scalia noted in his dissent of the majority’s decision, “almost certainly cause more Americans to be killed.” Indeed, at least 30 detainees released from Guantanamo Bay subsequently returned to the battlefield in Iraq or Afghanistan.

The decision disregards nearly 200 years of legal precedent, including the Supreme Court’s decision in Johnson v. Eisentrager (1950), which held that nonresident enemy combatants had no right to habeas corpus. As former Justice Department official John Yoo pointed out this week in the Wall Street Journal:

“In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of WWII, the Supreme Court agreed that the writ (of habeas corpus) did not benefit enemy aliens held outside the US. In the months after the 9-11 attacks, we in the Justice Department relied on the Supreme Court’s word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.”

The decision also threatens the separation of powers by undermining the authority of the president as commander-in-chief and defying repeated efforts by Congress to address the issue.

Importantly, among the court’s majority were its two oldest and most liberal members, John Paul Stevens and Ruth Bader Ginsburg. Stevens and Ginsburg, both of whom are older than Mt. Rushmore, are the two Supreme Court Justices most likely to retire during the next president’s first term. And they are no doubt the types of justices Barack Obama was thinking of last year when he explained the criteria by which he would select his judges.

At a Planned Parenthood conference in January 2007, Obama said, "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom … the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

Obama cheered the Boumediene decision as a way of ensuring the protection of America’s core values. It leaves me wondering whether he will add “Islamic terrorists” to the list of groups for whom his judicial nominees would need to have empathy.

In contrast, John McCain called the ruling, “…one of the worst decisions in history,” and seconded Scalia’s belief that it will mean more American lives lost.

McCain added, “Now we have civilian judges, with no military background and experience, that are now, not only going to hear cases, but also you’re going to see a flood of habeas suits brought against the United States of America, including, very likely, members of the United States military.”

Predictably, the liberal media hailed the decision as a triumph for civil liberties and a pointed rebuke of the Bush Administration. But the same media that trumpet special rights for terror suspects routinely ignore the real injustices occurring in Cuba.

For decades all across Communist Cuba, democracy advocates have been imprisoned, suffering in deplorable conditions for the crime of showing “disrespect toward the revolution” for speaking up for civil rights, including the rights of women and the unborn. Where is the media outcry for the thousands of civil rights advocates who remain unjustly incarcerated only miles from Guantanamo Bay?

Polls suggest 80 percent of American voters believe the county is headed in the “wrong direction.” It’s not just high gas and food prices that have people worried. A big part of the problem, and one the media are loathe to report, is the direction of our culture. Many Americans feel disillusioned and disenfranchised by the judiciary’s ever-tightening grip on so many important areas of public policy. This sense of powerlessness is only reinforced by politicians who refuse to stand up to wayward courts.

Hundreds of same-sex couples flooded into California this week to obtain marriage licenses being issued at the behest of the state’s Supreme Court, and against the will of the 4.6 million Californians who in 2000 voted for marriage to remain the union of one man and one woman.

Even Governor Schwarzenegger refused to stand up for the right of his state’s citizens to decide for themselves. In the movies, Schwarzenegger was an action hero who took on all comers. But when faced with screaming homosexuals and the uninformed opinion of four liberal lawyers, he became Barney Fife, unwilling to do his job and defend the rights of his people.

From coast to coast, judges who fancy themselves legislators are setting public policy by judicial fiat. An out of control judiciary is a campaign issue ripe for discussion as more and more Americans see our courts as a friend to our enemies and an enemy to our values.

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Written By

Former presidential candidate Mr. Gary Bauer is president of American Values and chairman of the Campaign for Working Families.

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