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BOSTON – Former Massachusetts Gov. Mitt Romney has announced that he will appoint conservative judges to the federal bench if he wins the White House.
In a forum hosted by former Arkansas Gov. Mike Huckabee, Romney said he likes “strict constructionists” on the federal bench.
“I’d like people who recognize that their job is to protect the Constitution and to follow the Constitution as it was written and intended,” he said. “And to follow the laws of Congress as written and intended, rather than the Supreme Court seeing its role as springing from or departing from the Constitution.”
That statement echoes what Romney said during a 2008 California debate.
“I would approve justices – I would have favored justices like Roberts and Alito, Scalia and Thomas,” he said. “I like justices that follow the Constitution, do not make law from the bench. I would have much rather had a justice of that nature.”
Political analyst Steve Baldwin contends that Romney’s constitutional rhetoric is the product of his quest for the White House.
“When Gov. Romney first started to prepare himself to run for the presidency in 2004, the Romney team initiated an effort to schedule media appearances and speaking engagements for the governor focused on a number of themes important to conservatives, including judicial philosophy,” Baldwin said. “Much of this PR blitz had to do with the defense of traditional marriage, an issue on which Romney also misled conservatives as has been written elsewhere.”
The Hillary Goodridge vs. Department of Public Health decision forcing the issue of homosexual marriage was announced in November 2003. In response, Romney wrote a commentary on judicial activism for the Wall Street Journal.
He fired his first salvo in the battle over conservative judges in his Feb. 5, 2004, Journal commentary piece, “One man, one woman.”
“Beware of activist judges,” he wrote. “The Legislature is our lawmaking body, and it is the Legislature’s job to pass laws.”
Romney extolled the virtue of the “balance of powers.”
“The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the Constitution. This is not simply a separation of the branches of government, it is also a balance of powers,” Romney wrote.
“One branch is not to do the work of the other. It is not the job of judges to make laws, the job of legislators to command the National Guard, or my job to resolve litigation between citizens.”
He continued his “conservative blitz.”
Quoting Romney, Baldwin said, “On June 22, 2004, Romney spoke before the United States Senate and stated that the ‘real threat is not the constitutional amendment process, in which the states participate, but activist judges who disregard the law and redefine marriage.'”
Baldwin noted that Romney didn’t stop there: “At the 2007 Family Research Council’s Voter Values Summit, Romney said, ‘I’ll appoint and fight for justices who follow the law and the Constitution and who understand judicial restraint and who won’t legislate from the bench.'”
Romney’s campaign staff continued to press the theme in 2008, by the design of the campaign website. Baldwin said the site theme was the Constitution.
“Romney’s 2008 campaign website likewise featured conservative judicial themes. ‘The Bill of Rights are under constant assault from activist judges,’ And that, ‘Romney will appoint judges who respect the Constitution and the rule of law, and will not legislate from the bench,'” Baldwin said, adding that Romney’s campaign had solid input from conservative judges.
“Romney campaign surrogates were tasked with placing articles in conservative publications that boasted about his alleged conservative judicial views. One such surrogate was Pepperdine University Constitutional Law Professor Douglas Kmiec, a Romney adviser on judicial issues and co-chair of Romney’s ‘Advisory Committee on the Constitution and the Courts,'” he added.
Pepperdine constitutional Law professor and Romney legal adviser Douglas Kmiec wrote an Oct. 10, 2007, article for National Review Online trumpeting Romney’s promise to appoint judicial conservatives.
“Romney is pledged to name to the Supreme Court individuals with the intellectual qualities and philosophy of judicial restraint of Justice Scalia, Alito and Roberts,” Kmiec wrote.
He added a warning line: “We cannot afford a president who is only faking his attachment to conservative legal principle.”
Legal analysts say candidate Romney is different from Gov. Romney.
Liberty Counsel Action Vice President Matt Barber said Romney’s appointments were constitutional “living document” poster children.
“Many of Romney’s appointments were not only liberal, not only Democrats, but were radical counter-constitutionalists. How on earth can we expect that, as president, he would be any different?” Barber asked rhetorically.
“Actions speak louder than words, and Mitt Romney’s actions as governor scream from the rooftops that he cannot be trusted with this most important of presidential responsibilities.”
Barber cites two specific examples of Romney’s radical appointments.
“As governor of Massachusetts, Mitt Romney not only failed in this regard, he appointed a number of very liberal, if not radical, ‘living, breathing’-minded judges to the bench,” Barber said.
“Two that come to mind were extreme homosexualists Marianne C. Hinkle and Stephen Abany,” he said. “They both had a long history of pro-gay activism, yet Romney didn’t hesitate to put them on the bench.”
“These are people who outrageously believe the postmodern notion that newfangled ‘gay rights’ trump our constitutionally guaranteed First Amendment rights,” he said.
Baldwin agreed, citing Romney’s statements about the two requirements he actually used when selecting judges.
“Romney did focus on two criteria: their legal experience and whether they would be tough on crime. In other words, the nominee could be a gay activist or a pro-big government, pro-quota, pro-gun control Democrat Party hack who detests every judicial principle treasured by our founding fathers,” Baldwin said. “But if he happens to be tough on crime and have prosecutorial experience, he gets past the Romney filter. Many of Romney’s nominees fit that description.”
Baldwin added that Romney did have some ideological criteria for many of his nominees:
“It was criteria commonly used by the left. For starters, his nominees were mostly pro-abortion. Indeed, while campaigning for governor in 2002, Romney told the National Abortion Rights Action League (NARAL) that his judicial nominees would more likely protect abortion rights than would those of a Democrat Governor, according to notes from a person attending this meeting.”
Another Romney criteria, Baldwin explained, was “diversity.”
“The other criteria consistently emphasized by Gov. Romney in deciding judicial selections was ‘diversity.’ This is the silly notion that judgeships should reflect the population in terms of race and gender and even sexual orientation, regardless of a person’s judicial philosophy,” he said. “Clearly, the use of diversity quotas demonstrates Romney’s lack of a coherent conservative worldview.”
Barber agreed with Baldwin’s assessment, adding that Romney’s record while governor is reason for concern, because the next president may radically reshape the federal bench.
“Our next president has the potential to appoint two, possibly even three Supreme Court justices,” Barber said. “This will influence the trajectory of law and public policy for decades to come. We absolutely must have a president who can be trusted to appoint ‘originalist’ judges who will strictly interpret the Constitution in the context of the founders’ original vision.”
Barber concluded, “If the Constitution is a ‘living, breathing’ document as President Obama believes, then it is rendered meaningless.”