|Most Important Things #4|
The Federal Judiciary has undergone a transformation during President Bush’s tenure. Even with Democratic filibusters and Republican ineptitude, the ranks of the black robes are populated by many, many more constructionists than was the case a decade ago.
That will be undone in the next four or eight years, unless Republicans get their acts together.
Republicans have been badly outflanked on the critical issues of the Bill of Rights over the last . . . oh, 40 years. It seems as if, from a public relations standpoint, the only argument Republicans have that is of any consequence is that the Court invented a “Right of Privacy” so that women can have abortions, and that’s a bad thing.
And, of course, that’s true. But there’s SOOO much more to the faulty jurisprudence of the Court over the last few decades that for our whole philosophy to be reduced to a contentious soundbite is silly. But that’s what has happened.
Begin with the First Amendment. The balance of power between the Establishment Clause and the Free Exercise Clause has been tipped so far in favor of prevention of establishment that the vast majority of Americans (somewhere around 85%) have a difficult time finding a place for their religion in the public square. It has gotten so convoluted that, as a teacher, I find myself editing my own thoughts at public performances when I feel the need to say “Merry Christmas.” Huge legal battles are waged over whether or not Christian churches have a right to enter a float or a display in a CHRISTMAS PARADE!! And yet, the atheists in Washington State now have the official blessing of the state as they are allowed to put a virulently anti-Christian message on a state display honoring the holidays. At the same time, Christian health care workers who object, on moral grounds, to abortion are forced to provide information regarding the procedure to patients, and to make the procedure available in their facilities. A pastor friend of mine, who has chosen to pursue his ministry in the military, is prevented from preaching his Faith, in fear that he might make a non-believer uncomfortable.
Is this easily distilled to a compelling argument? Probably not. But it is the sort of thing a CouRt nominee should have to answer about in his/her confirmation hearing. And, at whatever point the nominee is unable to clearly articulate their philosophy about the balance, the entire caucus should jump on the issue, and then YouTube/Twitter the verbal gymnastics.
And there’s more than religion to the First Amendment. There’s also the Free Speech thing. You know, the one that says the government can’t abridge your speech—unless you’re trying to make a speech about politics through the medium of television and that requires money. Or unless you’re trying to say something negative about Barack Obama in Missouri. Or unless you’re trying to stay in business as a conservative talk radio station. Watch this space.
And then there’s the Second Amendment. Luckily, we got a victory this past year when SCOTUS ruled that the Right to Bear Arms is an individual right. You would think that that was the end of the story but, of course, it’s not. State legislatures will, no doubt, try to chip away at that right in a gradual way—so slow that you don’t even notice. After all, they believe they have a permanent majority. They can afford to wait on this stuff—what’s twenty years against the long struggle to take guns away from Americans?
Fifth Amendment? How about Kelo? “nor shall private property be taken for public use, without just compensation.” Consider, then, what an Obama-led Department of the Interior does with the Endangered Species Act, the nee-Kyoto Treaty, and whatever else the “Savior’s” administration decides is important. The potential land-grab from the Feds is without precedent, as the Feds get to decide who gets what space to use for what purposes. Don’t get comfortable on your new property.
And remember the Left’s favorite argument in confirmation hearings? Stare Decisis? The absolute belief that that which the Court has already decided on is sacrosanct. The Left used that as a bit of a bludgeon to get quasi-commitments out of Roberts and Alito not to revisit Roe or Gratz or a hundred other deicisions they agreed with. But, luckily for them, adherence to historical precedent is antithetical to “progressivism,” so I would definitely look for an aggressive push to ignore Stare on a wide range of issues, including the afore-mentioned D.C. gun ban. Arlen Specter and Orrin Hatch had better be ready to hammer away at Obama’s nominees vis-à-vis Stare on the few small victories we’ve won over the past few years.
This argument has to be framed in the context of issues that matter to Americans. Americans still like to practice their religion, Americans like saying “under God,” Americans like their guns, even if they aren’t actual guns but just the idea of guns, Americans, Americans like their property, . . .
And Americans DO NOT like to be told by nine unelected people in black robes that their beliefs are bigoted, their lifestyles extravagent, and their land better used by the state for the “greater good.” This is an argument the Right can win. Most important, it’s an argument the Right MUST win or there will be no checks on Obama’s/Pelosi’s/Reid’s extraordinary extension of government powers.
But somebody has to teach our Senators and cnadidates how to talk about these issues in a way that the country can understand. The Court is one issue that still resonates to our gain.