Reining in the Courts: How Do Conservatives Fight Judicial Activism?

Editor's Note: The following remarks were presented at CPAC 2007.

I have no idea what your biggest concern was when you awakened on the morning of 9-11, but I'm quite sure I know what it was when you saw the second plane hit the tower.

If we don't win the war and secure this country, all other issues, including judicial activism, won't matter.

• If you're pro-life, you'll want to avoid a nuclear attack.
• If you want to preserve marriage, it's important that tens of millions of us aren't poisoned by chemical or biological weapons while walking down the aisle.
• If you want to save our country from becoming a cultural sewer, it's important that we're not buried under the sewer system.

The best way to fight judicial activism is to keep activist judges off the bench in the first place. That requires us to continue fighting for good nominees and to make certain that three things happen in the next election:

1. We must elect a president who is committed to winning the war, protecting the United States and nominating only judges who know they're not the commander in chief.
2. We must elect senators who are committed to winning the war, who know they're not the commander in chief and know that judges aren't either.
3. We must confirm judges who know they're not commander in chief and don't think that Bin Laden or any other madman has a constitutional right of privacy to use a cell phone to order a hit on America.

That is essentially what federal district court Judge Alice Diggs Taylor, a Carter appointee, did when she held that warrantless wiretapping of international communications by foreign terrorists violates the Constitution.

It is preposterous. The President should ignore it just as Lincoln and FDR would have done.

I. How activism affects you:

When judges think that the "living Constitution" is their personal Etch A Sketch, "We the People" is reduced to a meaningless motto.

A dissenting opinion of four U.S. Supreme Court justices opens with these words:

"We are construing a living Constitution. The sentence imposed upon the petitioner would be viewed as grossly unjust by virtually every layman and lawyer. ... I would reverse the decision of the Court of Appeals."

There is no escaping the fact that the dissent is based on the public policy preference of four lawyers and not the text of the Eighth Amendment to the U.S. Constitution. That's judicial activism.

The notion of a "living Constitution" stems from members of the Court who think that in order to understand what the Constitution means, they can't be bound by what they call "the cold, dead hand of the past."

Here's a clue: If you want to know what the Constitution means, read the text. It's the best evidence of the drafters' intent. Presume that they were in their right minds and that their words actually mean what they intended. And if that's not enough, read The Federalist Papers in which they explained their intent.

It's much like what probate judges do when a will is challenged. They begin by presuming that the testator was of sound mind, free from coercion, that what the testator wrote is the best evidence of his testamentary intent and it should be enforced.

Imagine that a probate judge who subscribes to the "living" theory of interpretation is deciding what your parents meant in their will when they left everything to you. He decides that he can't possibly know what your parents' testamentary intent was by just reading the will. After all, it was written long ago and he "can't be bound by the cold, dead hand of the past."

Instead of enforcing their will as they wrote it, the judge decides that the "fundamentally fair" thing to do is to split your inheritance between PETA and the ACLU.

There's nothing like getting mugged by a "living" theorist to turn you into an "originalist." What's at stake in the judicial confirmation battle is far more important than somebody's last will and testament.

II. What's the difference between a judicial conservative and a social/economic conservative?

Conservatives have a slogan. "We want judges who interpret law and don't create law."

If we really mean that judges should leave writing law to the legislative branch, then we don't want judges who are going to make it up in order to get the end result that we want. If we really respect the Constitution and the rule of law, the end doesn't justify the means.

A social/economic conservative may give you the outcome you want even if there's no basis in a statute or constitution to support it. That's judicial activism.

A judicial conservative will base her ruling on what the law says, whether or not she agrees with it.

III. How to identify a good nominee.

Let me give you one major clue this morning. Watch the reaction to the nomination by the under-medicated, psychotic wing of the Senate Judiciary Committee and groups like People for the American Way, NOW, the Human Rights Campaign and other lefties.

They are joint advocates for the "Living Constitution" theory who think the Supremes are back-up singers for the left wing of Congress.

Here is what Sen. Dianne Feinstein (D-California), a member of the Senate Judiciary Committee, said about Judge Samuel Alito upon his nomination to the Supreme Court:

"In my view he is clearly qualified. ... This is a man I might disagree with but that doesn't mean he shouldn't be on the Court." (Face the Nation, January 16, 2006).

Eight days later, she said:

"If one is pro-choice in this day and age, in this structure, one can't vote for Judge Alito. It is simply that simple." (Orange County Register, The Nation, Blog, January 24, 2006).

She also voted against John Roberts as chief justice after saying this about him:

"There is no question that Judge Roberts is an extraordinary person. I think there is no question that he has many stellar qualities, certainly a brilliant legal mind and a love and abiding respect for the law, and I think a sense of its scope and complexity as well."

Feinstein is consistently inconsistent. I call it judicial psychosis.

IV. Finally, stay focused and never give up.

Getting judges Alito and Roberts confirmed to the Supreme Court is a victory by our grassroots that will do more good for our constitutional Republic and our families than some of us will fully realize in our lifetime.

Stay informed, and keep judicial nominations on the front burner no matter who controls the Senate. The life, the nation and the Constitution you may preserve is your own.