Tuesday, July 05, 2005

Prepare For The Media Blitz

One of the most influential powers of the President is the capacity to appoint justices to the United States Supreme Court, which, according to Article III of the Constitution, is the only federal court that must exist. These justices, appointed for a lifetime term or until date of resignation, are the untouchables in our system of checks and balances. No absolutes restrain their rule, and judges and justices become a law unto themselves. According to Thomas Jefferson (Andrew Allison, The Real Thomas Jefferson, 1983, page 500):

"It has long...been my opinion...that the germ of dissolution of our federal government is in the constitution of the federal judiciary...working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall by usurped."

In ABeka's American Government Teacher's Guide (1997, pages 44-45) are the following notes:

"...[I]n recent decades the Constitution has been changed frequently through the actions of activist judges. Rather than interpreting the constitution based on the originial understanding of the document as established by our founders, these judges subvert the rule of law in America by subjecting the Constitution to their own perception of society's needs. This practice of making law from the bench, rather than interpreting the law, places American citizens at the mercy of an activist judiciary.

"Much of modern legal theory, including judicial activism, is founded on the tenets of legal positivism. Legal positivism is the doctrine of stating law in relativistic, empirical terms, not in absolute metaphysical or theological terms....[L]egal positivism first manifested itself at Harvard Law School...and has at least these four characteristics: denial of divine absolutes, the relativity of law, the evolution of law, and the case law method of legal education."

Of the relativity of law, former Chief Justice Charles Evans Hughes said,

"We are under a Constitution, but the Constitution is what the judges say it is."

The above statement evinces arrogance and states, in very clear words, that the judciary system is a governmental branch of unbridled power. Furthermore, since the early 1900's, law schools have stopped using the Constitution and Blackstone's works as texts of study; instead, these schools promote studying the previous decisions and previous rulings, thus compounding possible judiciary errors.

There are two theories as to the function of the judiciary: interpretivism, also known as strict constructionism, the underlying premise of which is basing rulings on ideas which are plainly discoverable within the Constitution; and noninterpretivism, also known as activism, which promotes that courts should go beyond the Constitution. The latter, in effect, remakes the Constitution. Robert Bork gave the following caution in The Struggle Over the Role of the Court:

"If the theory of noninterpretivism--that judges can draw their constitutional rulings from outside the document--achieves entire intellectual hegemony in the law schools, as it is on the brink of doing, the results will be disastrous for the constitutional law of this nation. Judges will feel justified in continually creating new individual rights, and those influential groups which form what might be called the Constitution-making apparatus of the nation--that is, the law professors, the courts, the press, the leaders of the bar--will support the courts in doing this..."

Sandra Day O'Connor's unexpected announcement of her retirement from the bench has set off a frenzy. And while the matter of appointment to the Supreme Court is a serious one, the ensuing announcements as to who will fill the vacancy took on a comedic tone as all the different interest groups rushed to weigh in, on the very first day.

Washington Post

Word From O'Connor Sets Off Pre-Fourth Fireworks
By Dana Milbank
Washington Post
Saturday, July 2, 2005


"Well, yes and no.

"O'Connor's announcement caught just about everybody by surprise -- even the White House, which rushed to schedule a Rose Garden appearance for President Bush...Reporters and staff on the Hill arrived for work in blue jeans, hoping to slip away early for the holiday.

"But in a sense, Washington could not have been better prepared for O'Connor's announcement. Liberals and conservatives alike have been drilling for months in preparation for the vacancy, and they responded with an impressive blend of logistical precision and ideological excess.

"Eighteen minutes after O'Connor's retirement became public, Frist was on the Senate floor reading a 1,600-word statement. Forty-nine minutes later, the first television ads were announced. Eighteen minutes after that, Sen. Tom Coburn (R-Okla.) became the first senator to disparage the Reagan-appointed O'Connor, for 'self-indulgent judicial activism.'

"Sen. Charles E. Schumer (D-N.Y.) caught a flight back to Washington to give a news conference. Within hours, hundreds of organizations and lawmakers had issued statements and news releases -- the liberal People for the American Way issued four -- with the choicest political hyperbole: 'Devastating,' 'historic,' 'ominous,' 'critical,' 'freedoms hang in the balance,' 'reinventing monarchy,' 'state of emergency,' 'save the court.'

"And Bush hasn't even nominated a successor....

"But beneath the official posturing was a simple truth: O'Connor is the tiebreaking vote on a range of hot-button social issues, and the battle to replace her will be in many ways a referendum on legal abortion. So it's no surprise that, starting at mid-morning, the O'Connor succession fight became the only game in town.

"10:21. The first Associated Press bulletin crosses the wire...

"10:30. The conservative Becket Fund for Religious Liberty announces that its lawyers are standing by...

"10:31. People for the American Way...

"10:33. The White House -- which evidently knew nothing of O'Connor's intentions when Bush's press secretary briefed reporters at 8:30 a.m. --announces that Bush will speak at 11:15.

"10:34. Sen. Jim DeMint (R-S.C.) rushes out a preemptive attack on the opposition....

"10:39. Frist, on the Senate floor...

"10:40. Planned Parenthood issues a press release...

"11:01. Senate Democratic leader Harry M. Reid, stuck at home in Nevada, issues his statement...

"11:07. The liberal Alliance for Justice...Not to be outdone, the ACLU warns at 11:11...

"11:16. Sweat-soaked journalists wait in the sweltering Rose Garden as television correspondents struggle for words to describe the drama to their viewers....

"11:21. GOP Chairman Ken Mehlman bemoans 'the inevitable protest from far-left special interest groups.' Democratic Chairman Howard Dean answers 57 minutes later...

"12:41. Frist's office serves notice that Supreme Court vacancies over the past 30 years have been filled in 72 days on average....

"12:49. The conservative Committee for Justice vows guilt by association....

"1:42. The liberal Coalition for a Fair and Independent Judiciary weighs in...Twenty minutes later, the conservative Family Research Council holds a news conference...[T]he group's chief, Tony Perkins, says. 'We will seize this opportunity.'

"But he had better pace himself."

While I had a good laugh over some of the above material in the Washington Post article, the appointment which our President will soon make is of extreme importance. Just recently, we've seen the Kelo decision, in which the Supreme Court apparently ruled in favor of a special-interests group through the justices' broad interpretation of eminent domain--a 5-4 ruling in which Justice O'Connor was in the minority and a ruling about which she cautioned because, in her opinion, Kelo could affect all property owners.

Americans would do well to remember the words of Thomas Jefferson and of Robert Bork. Much is now at stake, and all factions have already begun jockeying for position. I wonder what our Founding Fathers, many of whom were opponents of the two-party system, would think of all this jockeying; they'd be aghast, I believe.

Meanwhile, this summer is going to be one long haul as the media feeding-frenzy follows the story--with talking head after talking head and with "breaking news," most of which would properly be called "breaking speculation." Gird your loins, and lay in a supply of DVD's and some light reading, so as to escape the media blitz.

Note: Please see my friend's take on this same issue @

Social Sense


At 7/05/2005 9:12 AM, Blogger LA Sunset said...

There is a fairly new book out:

Men In Black: How The Supreme Court Is Destroying America, by Mark Levine.

I haven't read it yet, but I am told it is very good and a must read.

At 7/05/2005 12:42 PM, Blogger Esther said...

While I don't look forward to this media circus, at least this is something that matters and affects all Americans -- as opposed to previous media circuses about shark attacks, missing pretty white girls and a 40-something weirdo who sleeps with little boys.

At 7/05/2005 5:29 PM, Blogger Gindy said...

"the ensuing announcements as to who will fill the vacancy took on a comedic tone as all the different interest groups rushed to weigh in, on the very first day. "

This is going to possibly the ugliest political event since President Bush took over.

At 7/05/2005 5:50 PM, Anonymous Anonymous said...

This is a truly excellent discussion, AOW. Perhaps Justice Hughes statement is exactly why we must have justices who interpret the law, rather than legislate it.

The high court in this country depends on the goodwill of its citizens, and of federalist bureaucracies, to obey its declarations since it is totally without power to enforce any of its decisions. Our goodwill obedience to high court rulings has become a tradition, however, and one that should be a source of pride.

I think it is wise to seek "balance" in our government, including its judicial system. Herein lies the political issues: liberal politicians want a court closer to their peculiar ideologies, while conservatives want a court composed of people who will rule on the constitutionality of matters brought before it. One recent issue was whether the 14th Amendemnt should itself be amended, replacing the word "persons" with "citizens" in order to afford less advantage to Islamists residing inside the USA. It would be interesting to see how the court would rule on the constitutionality of such an amendment.

I can understand the political concerns expressed by Senators. For many years, we had a very liberal court, and I believe a number of poor decisions that had serious long term consequences. Now, the nation is moving more to the right of center and I think our people expect the court to follow them in that direction.

Nevertheless, the role of the Senate is to conduct hearings and confirm (or deny) appointments. That is what I think the Senate should do. We should not have Senators competing with one another for the most astounding sound-bite, and we should not have elected officials who refuse to do their duty by filibustering.

After what Justice Thomas was subjected to, which in my view was a national embarrassment, it is amazing to me that anyone would want to step up to the plate and go through a high court confirmation process.

At 7/11/2005 11:52 AM, Blogger BigBubba said...

Bush must select a conservative, strict constructivist candidate for the court. Simple enough, it is what we all have been waiting. A Republican President to appoint justices who reflect our conservative values. Simple, simple, simple.

Simple that is until the pseudo intellectual progressive liberal demoracists become involved in the process,

1. A woman must be replaced with a woman.

2. A Man must be replaced with a man.

3. Incredibly they will suggest a liberal must be replaced with a liberal.

4. A litmus test du jour.

5. Character attacks. Racist, hater, homophobe, right wing extremist, whatever works, true or not.

6. Mischaracterizations.

7. And who knows what new chicanery they will pull out of their clown's chapeau.

8. All else fails they will throw theirselves to the floor, hold their breath until they turn blue, kick and scream. Or, maybe filibuster.

At 7/11/2005 2:46 PM, Anonymous Anonymous said...


A very thoughtful piece! But how does a Legislator ensure that only non-interpreters and strict constructionists get appointed to the Court rather than Legal Positivists? Jefferson, et al, obviously knew it was going to be a problem (as your quotes and the history of democracy in Athens will attest). Why didn't they make special provisions guarding against this “legal deterioration” happening? Do you think it was a deliberate omission on their part, one that would force us to periodically return to first principles and "spill the blood of tyrants"? Do you think that it simply was not a known viable and/or available political option during the time of the Constitution's drafting? Or do you think that by having the members of the Court be subject to confirmation by the Senate, the Founders thought they had “taken care” of the problem?

Personally, I believe that once the U.S. Senate lost its’ aristocratic roots, the possibility of having the US Supreme Court act as a “brake” on innovative interpretations of law went out the window. The members of the Court became subject to “politics” and so became more “political” as soon as the Senators themselves became subject to direct election, and not "indirect election", by the legislators of the States. What are your thoughts?


At 7/11/2005 7:44 PM, Anonymous Anonymous said...


Just a housekeeping note, the link for your friend "Social Sense" is dead.



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