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Claude Allen & His Enemies
Understanding the judge fights.


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In April 2003, President Bush announced his intention to nominate Claude Alexander Allen to the United States Court of Appeals for the Fourth Circuit, which reaches from Virginia to South Carolina. Sixteen months later, as with so many of the president’s other nominees–courtesy of Senate Democrats–Allen is still waiting.

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The opposition to Allen is directed by left-wing interest groups, from where Senate Democrats increasingly take their marching orders. The National Organization for Women, for instance, has hit upon a most remarkable basis for opposing Allen: “Allen’s three children are home-schooled.” Never mind the fact that centuries of American children have been so educated; never mind the fact that our Founding Fathers mostly learned at the knees of their parents. In this day and age, apparently, children not educated in state-run, union staffed, federally subsidized schools are a basis for suspicion.

Or, take the self-proclaimed Alliance for Justice, whose mission is to keep the federal bench safe from Republican appointees. Their great criticism of Allen is that he has worked to advance an “abstinence-only-until-marriage agenda.” Therefore, in their words: “Everything about Allen’s record suggests that…he would be unable to separate his personal extremist views from what the law requires.”

Extremist views? Educating his children and promoting sexual responsibility? One might think these are the marks of an excellent judicial selection–yet these are the bases for strident liberal opposition to Claude Allen’s nomination. Why would NOW, the Alliance, or any of their ideological ilk take such a stand? The answer is an instructive window into their elitist and anti-democratic manifesto for America.

The dispute flows from a fundamental disconnect over the proper role of judges in our system of government. Liberals did not invent judicial activism. Conservatives, unfortunately, claim that dubious honor. Liberals, however, have perfected it. Judicial activism, in short, is an attempt to impose through the courts what has already been rejected by the democratic process. While the nation may debate the wisdom of a particular course, weighing its effect on custom and tradition, balancing progress and upheaval, the activist judge by sweeping fiat enforces his personal predilections with nary a ballot cast.

The Framers understood, and conservatives by and large maintain, that judges should faithfully apply the law as crafted by the legislature and enforced by the executive. This includes dutifully applying “liberal” statutes that judges might not have supported had they been legislators. This contrasts markedly with the liberal view of the judge whose role is to write into the law those very beliefs that they would enact had they the authority of the legislature and the backing of the people. This includes refusing to enforce “conservative” laws, best exemplified by the recent federal judge in California who struck down the federal partial-birth-abortion act before it was ever signed into law.

Given their understanding of what a judge should do, the radical Left’s criticisms of Allen are more understandable. He is conservative and unapologetically pro-family. Were he to follow their judicial model, he might well implement his own “agenda,” favoring life and responsibility, just as liberal judges have happily imposed theirs.

Liberals, of course, claim that he would do so–recall the Alliance for Justice. Yet, recall also that every federal judge takes an oath to uphold the Constitution of the United States. Despite their bluster to the contrary, no liberal critic has produced a single shred of evidence that were he confirmed, Allen would so cavalierly ignore that duty.

Given their paucity of evidence, the Left’s objection cannot really be that Allen’s record suggests he would write his own views into law. The true basis for their opposition is not that he will act to implement his own agenda, but rather–given his traditional values, belief in family, and ideals of personal conservatism–that he might not warmly and enthusiastically embrace theirs. It is their political agenda that drives their animus against not only Claude Allen’s jurisprudence, but against his person–for them there is no difference.

President Bush and his nominees, thus, stand athwart the great debate of the last half century: Should the United States return to being the republic it was founded or should it resign itself to oligarchy, ruled not by the will of its people but by an elite and unaccountable few? While the president has stood up for democracy and selected his nominees accordingly, a minority of the Senate has opted for the latter. Having failed to win out through the democratic process (even when they controlled the entire federal government), the Senate minority’s last great hope is to enthrone a federal judiciary who will discover democratically insurmountable mandates in the Constitution mandating their worldview.

This debate is not about substantive outcome. There yet exist principled Democrats who understand that their beliefs are properly advanced through the democratic process, and not by judicial decree. Indeed, they understand that the latter approach can be, and has been, used to similarly impose conservative tyranny. Yet, unfortunately, most liberals in their maniacal pursuit of substantive victory have cast the procedural protections of checks, balances, and a limited judiciary to the wind.

Claude Allen promises not to advance a political agenda from the federal bench he has been nominated to, but to be the type of judge who buttresses the foundation of American government–by applying the rule of law however he finds it. President Bush, and the U.S. Court of Appeals for the Fourth Circuit, could do much worse than Allen. By the grace of democratic principles overriding a minority in the Senate, let us hope they do not have to.

Former White House Counsel C. Boyden Gray is chairman of the Committee for Justice.



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