February 2, 2006

Turning his back on the passiveness Republicans exhibited during the decades when Liberal activists infiltrated the American judicial system, President Bush has done an excellent job of nominating and working for the confirmation of judges committed to the idea of judicial restraint. But when it comes to supporting Conservative nominees in the most effective manner possible while also engaging the American public regarding the need to reform the judiciary, other Republican leaders need to do a lot more.  

That conclusion can be supported by quoting no less a figure in the fight to reform the judiciary than Judge Robert Bork, whom the NY Times reports as observing, "It [success in reforming the judiciary] has been a long time coming, but more needs to be done." In the same spirit that motivates Judge Bork's comment, I offer some modest advice regarding this crucial battle of the Culture War.  

First, a mention of the educational principle that "there is no transfer," which holds that if we want people to grasp a concept, we must explain and discuss the concept explicitly, never expecting our audience to somehow "get" it on their own. With respect to the fight to reform the judiciary, Republicans need to do a better job of adhering to the requirements of this notion just as they need to respect the importance of brevity (for if brevity is the soul of wit, verbosity is the narcotic that lulls wit to sleep) and dedicate themselves to the use of effective repetition.  

Now to the advice. Liberals, their fellow Democrats dutifully silent, have long attacked Conservative judicial nominees with a calculated name-calling aimed at sliming the nominee as a hater of civil liberties and as a racist, sexist barbarian. With regard to this hate speech, Republicans of the Judiciary Committee must do more than apologize to the nominee. Employing the principles mentioned above, they must specifically, forcefully, and immediately challenge every Senator guilty of wallowing in and throwing such fetid mud.  

Republican reaction, however, must not end there. With the goal of engaging every American's attention regarding this shameful, socially destructive behavior, all Republican leaders need to speak out in media appearances designed to reach every precinct in the country. In so doing, Republicans will perform the nation a great service by establishing a solidarity with the vast majority of Americans who look upon playing any kind of "card," racial, sexual, ethnic, or religious, not merely as intellectually dishonest but as immoral and reprehensible.   

This use of specific confrontation and media saturation applies to other responses as well. For example, every time Democrats attack a judge or judicial nominee as "extremist," Republicans must immediately put a face on the nation's real judicial extremists by naming names and pointing out specific facts associated with those names. In this regard, no name works better than that of Supreme Court justice Ruth Bader Ginsburg, former executive of the ACLU and adherent to a slew of extremist social and judicial notions, including the Liberal activist madness that "Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions."  

Greatly simplified, the tactic mentioned above can be described as "Every time you say extremist, I say Ginsburg." But Justice Ginsburg isn't the only judge the American people will recognize as a real extremist; for our courts at all levels are populated by hundreds of radical Liberals. There is, therefore, no dearth of social ideas espoused and judicial decisions issued by judges whose exposure will put Democrats in the no-win position of either defending the judges to satisfy the Liberal base or condemning them to bring themselves in accord with public opinion, thereby angering Liberals. Whichever path the no-win Democrats choose, the American people will rightly regard Republicans as having produced a win for the nation.       

Unfortunately, Republicans too often remain silent when an effective response to the false charge of extremism would prove enormously useful. Consider, for example, that even as Democrats attacked Judge Samuel Alito as an extremist, Judge Edward Cashman of Vermont sentenced to sixty days in prison a man who for four years had continually committed unspeakable acts of sexual assault on a young girl. Neither in the Judiciary Committee nor in concerted national media appearances did Republicans speak about this outrage as part of a strategy to defend Judge Alito and to strike a blow in the greater battle regarding the judiciary. This ironic silence is bewildering. But it takes on a stunning quality if we consider that it is Liberal Democrats, from Massachusetts to Vermont to New York to California, who oppose tough minimum sentences for sex offenders (such as Jessica's Law) and refuse to call for the resignation of, much less impeach, Judge Cashman and other judges like him.

Finally, because the Republican Party serves as the voice of the nation's Conservatives, Republican leaders bear a special responsibility for educating the American people about the travesty of justice created when Liberal Supreme Court justices invoke foreign laws in their decisions. Justice Stephen Breyer, for example, has infamously cited the law of Robert Mugabe's Zimbabwe, while both he and Justice Ruth Bader Ginsburg have found good sense in the notion of equality-through-inequality promulgated by the UN's International Convention on the Elimination of All Forms of Racial Discrimination. Even Sandra Day O'Connor has speculated that "over time we will rely increasingly . . . on international and foreign courts in examining domestic issues."

In responding to this unconstitutional, dangerous, and hypocritical nonsense, it is essential that Republicans engage the nation not merely by adding a plank to the Republican Platform (which they ought to do) but by effectively and energetically using plain English to create a truly national dialogue regarding three simple facts:  

(1) No American law (including the Constitution) makes any provision for its interpretation according to the laws of other nations (2) The Liberal position in this matter makes the term "government by the [American] people" oxymoronic (3) In applying foreign law to American law, Liberal judges will of necessity cherry pick foreign laws that support their views.  

Indeed, the arbitrariness exemplified by this cherry picking serves to remind us that the very notion of judicial activism rejects Washington's observation that laws in a democracy are established only by "an explicit and authentic act of the whole people" as it further erodes the principle of Separation of Powers with its promotion of the idea of the judiciary as the rightful super-power among the three branches of government.  

To further nurture this important dialogue regarding a reliance "on international and foreign courts in examining domestic issues," Republicans should at every opportunity repeat the oath of office taken by justices of the Supreme Court, an oath which contains the following words: "I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God." What a boon Republicans will bestow upon the nation as floundering, frustrated Democrats are forced to react to those words with the insidious bluster of Clintonian Semantics.  

Here ends the modest advice announced at the outset, advice which makes no presumption of being complete. It does, however, presume to accept the goodness, decency, and common sense that the American people bring to their evaluation of public policy and presumes, further, to base itself upon time-tested principles of rhetoric. It is, therefore, advice which can create the kind of dialogue the American people deserve  --  and not just when, during hearings of that august body called the Senate Judiciary Committee, Democrats foul the air with ugly demagoguery.  

Copyright by A.J. DiCintio

This article was first published by MichNews.com on February 2, 2006, and is reposted here with the kind permission of the author.