Politics & Policy

Wrestling over Judges

Can you smell what the Democrats are cookin'?

DenverDwayne “The Rock” Johnson may be called on to play John Roberts in Bush’s Court: The Movie. That’s the impression I got, anyhow, when Hillary Clinton referred to the nation’s highest Court as being in “a rightwing headlock” on Tuesday night, during her long-awaited speech to the Democratic convention here.

Only a left-wing ideologue would thus describe a Court that recently extended, for the first time in our history, habeas-corpus rights to enemy combatants held on foreign soil. Only a left-wing ideologue, one who is content with a judiciary going out of its bounds to write laws instead of simply interpreting the Constitution, could thus describe a Court where Anthony M. Kennedy — the toast of Salzburg — is the fulcrum.

It’s a laughable contention. As further proof: The Court — Justices Kennedy, Breyer, Ginsburg, Souter, and Stevens, specifically – recently decided to protect the rights of child rapists, taking off the table the possibility of capital punishment in such cases. Demonstrating a profound incoherence in his thinking about the judiciary, Democratic presidential nominee Barack Obama, while embracing the liberal activists on the Court, recently expressed his disapproval of the politically untenable position of the Court in Kennedy v. Louisiana. And yet, these are the very types of justices you would appoint, Senator? The ones responsible for that shameful ruling? Who would let their personal objections to capital punishment cloud their thinking about what’s constitutionally acceptable?

Obama also told a Planned Parenthood conference last year that the conservatives on the Supreme Court lack “empathy.” Criticizing Justice Anthony Kennedy, in the Gonzales v. Carhart partial-birth abortion decision, which he described as part of a “a concerted effort to steadily roll back” access to abortions, Sen. Obama said, “Justice Kennedy knows many things, but my understanding is that he does not know how to be a doctor.” That’s an odd and unconstitutional standard for a judge. But, then, Democrats today tend to have odd and unconstitutional standards for the judiciary.

In Chief Justice Roberts and Associate Justice Samuel Alito, President Bush has put two serious constitutional lawyers on the Court. John McCain has promised to emulate those picks — and this is what infuriates liberal activists like Clinton. They want judges who will remake our society, installing by judicial fiat the liberal policies that Democrats have been unable to secure through the ballot box.

As Ed Whelan, president of the Ethics and Public Policy Center puts it: “What Clinton really opposes is the prospect of a Court that abandons the stranglehold of liberal judicial activism and that gives free play to the broad rights of American citizens to make policy decisions through their legislators.”

Republican nominee John McCain is worried about the state of the courts, too. He has emphasized that the proper role of the judiciary is “one of the defining issues of this presidential election.”

Speaking while the Democratic primary was still ongoing, the Arizona Republican senator said that Obama and Clinton “don’t seem to mind when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives.”

McCain has looked at Roberts and Alito and promised to emulate the choices in regard to “judicial ability, experience, philosophy, and temperament.” He has vowed to nominate judges “with a proven record of excellence in the law, and a proven commitment to judicial restraint.”

Hillary Clinton’s objection to the Court is not activism (there is no evidence that Alito and Roberts, although conservatives, are activists. They are judges, properly understood). It’s that she wants her kind of activist there, to tighten liberal activism’s grip. And therein lies the difference between prominent Democrats like Hillary and Barack Obama, on the one hand, and John McCain.

As Wendy Long of the Judicial Confirmation Network observes, “Hillary Clinton, Barack Obama, and Joe Biden are so liberal that they refuse to acknowledge that the current Supreme Court is frequently a liberal, activist Court. We need more justices like Chief Justice Roberts and Justice Alito, who are faithful to our Constitution and practice judicial restraint. Clinton, Obama, and Biden all voted against these Justices.”

Hillary’s speech Tuesday night was a reminder that elections matter. Now it falls to John McCain to make a serious vice-presidential pick, one who understands the issue of judges clearly. If he does, America just might slip the stranglehold that liberal judicial activism has on our federal system, which Democrats are desperate to tighten.

Kathryn Jean Lopez is the editor of National Review Online.


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