Discouraged conservatives frequently lament that much of the moral
degradation of America is actually due to liberal dominance of the court
system. In a kind of strategic checkmate, we are told, the left has
established its stronghold in the branch of government most removed from
the will of the people and, from this secure position, it has been
systematically undermining the moral foundations of our political order.
It certainly is true that the courts have been a consistent and
prominent source of assault on the moral integrity of the country.
Judges have been willing and able to remove from our law venerable moral
principles providing crucial support for the regime of ordered liberty.
When they have deigned to proceed by argument rather than fiat, their
arguments have frequently been patently false. The whole array of
spurious and contradictory legal support for the "wall of separation"
between church and state is just one example. A real wall built so
irrationally wouldn't stand for a minute but, in the strange new world
of liberal justice, they have the thing propped-up pretty well -- much
to the disadvantage of the piety and morality which are essential to the
preservation of our liberty. Increasingly, judges are issuing decisions
that contradict Declaration principles by undermining, for example, our
commitment to the belief that we are equal because we are created
equal, endowed by our Creator with certain unalienable rights.
Completely discouraged conservatives counsel despair in response to
this situation; less discouraged conservatives typically urge that we
swallow hard and then go to work for George W. Bush so that he can
correct matters with his judicial appointments. Rather than taking
counsel from discouragement, however, let's take a look at our situation
in light of the Constitution itself. What remedies are available to
begin repairing the moral wreckage that a liberal judiciary has caused
in our society?
As is usually the case in seeking solutions to our political
travails, the key lies in remembering the basic principles that govern
the nation. In this case, we need to remember first of all that judges
are not supreme rulers. America was not intended to be a judicial
despotism -- and, presumably, we can recall sufficiently what the phrase
"government of, by and for the people" means to see that this is the
case. With recourse to the Founders, we can overcome the dangerous
presumption we have developed that whatever judges say from the bench is
final because the law is whatever the judges say it is.
The moral damage caused by judges will not cease until the people and
their representatives remember that judges, too, are required to respect
the fundamental principles on which the nation is founded. When judges
make decisions that clearly contradict the first principles of American
life, then we have the duty to refuse to accept those decisions. We
must deliberate with prudence as to the precise form of our refusal and
we may even act in conformity with decisions that are less fundamentally
opposed to our national principles than others, lest we give scandal by
resisting what many of our fellow citizens suppose to be the authority
of law. But when judges fail in their duty to conform their decisions
to the principles of American justice, we are bound to resist -- the
only question is how to do so prudently and effectively.
How, then, should this resistance be conducted? The simple solution
lies in an examination of the structure of our government and the
principles that underlie that structure. Precisely because the courts
were never intended to hold tyrannical power in America, both the
federal Constitution and most state constitutions put mechanisms in the
hands of both the legislature and the executive -- aimed at making sure
that the judiciary cannot abuse its position and at defending the people
against judicial usurpation.
The Congress of the United States has the power, for instance, to
determine the jurisdiction of the lower courts in the federal system. I
haven't noticed the Congress using this power in order to prevent
judicial abuse lately, but it exists and could be used at any time.
Legislators also have the power to impeach judges. It is sometimes
argued that this power is irrelevant to the question of restraining an
overly ambitious or ideologically tainted judiciary, because judges can
be impeached only for personal or professional misbehavior. But this is
not true. The impeachment power was not intended just to punish
malfeasance. It was intended to prevent the usurpation of the powers of
one branch by another. And if the judiciary is so acting as to encroach
upon the prerogatives of the legislature, the legislature has the right
and duty to insist that judges alter their practices or be removed from
the bench.
These mechanisms may well lie dormant, however, if the executive and
legislative branches believe that the people will not support a serious
attempt to discipline the judiciary. Hence, the importance of a
citizenry schooled and confident in its duty to demand that the judicial
power be pruned back when it grows too great or in the wrong direction.
The judiciary, along with the other two branches of government, must
continually be measured by the just will of the people. If the people
cease to take thought whether the government, which is their instrument,
is acting in accord with the principles of self-government, then
self-government will indeed soon cease. And it is true that the judges
are, for the most part, shielded from the direct action of the people,
who must keep watch on them through the intermediate vigilance of the
other two branches of government. But, in the wisdom of the Founders,
we can rely on the fact that the executive and the legislative branches
have their own institutional reasons to be jealous of an overweening
judiciary. And so a people that knows its business will probably not
have to spur those two branches too hard before, in defense of the
balance of powers, they will be willing to take action against overly
ambitious judges.
Overall, there is little reason to despair that the judges are out of
our reach. What, then, of the strategy of uniting behind George W. Bush
to solve the problem of an activist and corrupting judiciary through the
power of presidential appointment to the bench? This is perhaps the
most common argument given to moral conservatives who are squeamish
about voting for Bush. And I agree -- up to a point -- that judicial
appointments are important. But if conservatives allow themselves to be
convinced that electing George W. Bush is the key, via the power of
judicial appointments, to overturning an era of the morally corrosive
liberal judiciary, then I will beg to differ.
The recent years of Republican control of the White House, including
the eight year administration of the truly conservative Ronald Reagan,
were long enough and included enough appointments that they should have
produced a clear and solid conservative majority on the Supreme Court.
They did not.
Partly this was because of ringers like David Souter. We were told
to trust the elder Mr. Bush that Souter was a reliable conservative. We
did trust Mr. Bush and David Souter is not a reliable conservative. A
more interesting example of the impotence of the appointment power alone
is Sandra Day O'Connor. Sandra Day O'Connor was a Reagan appointee. On
paper, she looked like a solid, pro-life conservative justice. But her
voting record over the years has not been reliable at all. So, what's
wrong with the appointment power?
We underestimate the effect on judges of living and working in a
political environment where the prevailing wind blows in a certain
ideological direction. Judges become part of a community that defines
ideological growth as the abandonment of conservative principles. In
the atmosphere of confident liberal power that conservatives have
allowed to fill Washington, the conservative principles of George W.
Bush appointees will likely wither on the vine.
The appointment power will not be decisive unless it is supplemented
by a change in political environment that nurtures the principles of the
conservative judges who are appointed. Conservatives have lost cultural
and political control in Washington by continually advancing political
leaders who cannot articulate or defend conservative views in a way that
moves anyone to political action -- either the opinion leaders or the
grass roots to take real action. The most important requirement for
establishing the needed change is leadership that can effectively
promote and defend the conservative viewpoint. Only such political
leadership can encourage and sustain conservative confidence among the
people and in their elected representatives. With such confidence, the
available Constitutional and political mechanisms for restraining an
ambitious judiciary will be perfectly sufficient.
Abraham Lincoln taught us that, in times of crisis, the Constitution
need not be a suicide pact. It does not oblige us to watch helplessly
while liberal judges run amuck. If the people put leaders of competence
and courage into the executive and legislative branches, the judges can
be brought back into line.
But this is nothing new. The Founders have left us with the
instruments we need to accomplish self-government with justice. We have
inherited all that we need except the one thing that cannot be inherited
-- political will. What is essential is the determination of the people
and their representatives to use these instruments once again.
Do you want to support the conservative reform of the bench? Resist
the temptation to believe that it can be done on the sly, by slipping
into office politicians who are reluctant to lead. Even if there is
desire to do the right thing, such nominees will be challenged and an
account demanded of why they are best for the job. At such moments,
politicians who can't, or won't, defend the conservative agenda are
worse than useless -- their failure contributes to the general opinion,
particularly among elites, that conservative principles cannot be
defended. In the long run, it is this opinion, not lack of the
appointment power, that dooms the conservative agenda in the judiciary
and everywhere else.
The judiciary will be disciplined not merely by better appointments
but by a political leadership willing to discipline it and able to lead
the people in forming and sustaining a principled determination to do
so. Only such a leadership can hope to use the appointment power to
real effect. A principled, determined and articulate conservative
leadership, and the grass-roots support it would receive, can achieve the
success America needs. The duty of citizens now is to demand such
leadership and offer it their support. If we choose principle first,
the appointment power will soon be added -- and under circumstances that
will permit it truly to make a difference.