The presidential candidates can talk all they want about their
plans. Even President Clinton's aggressive misuse of the executive
order was no match for a federal judge. Presidents simply do not have
the last word on important policy issues, judges do. As the courts go,
so goes the country. So to really know what the November election will
mean, we must examine what their judges would do to the country.
Al Gore says his judges will "breathe" new meaning into the law, code
for making it up as they go along so they can achieve the results they
want. There's no need to speculate about what this means since the
Clinton-Gore administration has appointed 373 judges. Their record
shows that a Gore judiciary will exercise breathtaking power to impose a
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In 1995, the Supreme Court voted 5-4 to strike down a federal law
making it a crime to possess a gun within 1,000 feet of a local school.
With a straight face, the Clinton-Gore lawyers had said Congress could
pass such a law under its power to regulate interstate commerce. The
elastic definition the Court had given this power over the previous 60
years finally snapped. There's nothing either interstate or commercial
about driving by a school with a hunting rifle in the trunk.
Clinton-Gore Justice Stephen Breyer wrote the dissenting opinion. He
argued that the "commerce ... among the several states" that the
Constitution lets Congress regulate is whatever "Congress decrees
inimical or destructive of the national economy." That is, the federal
government's power is whatever the federal government says it is. Quite
the opposite of what the Constitution actually says, the 10th Amendment
reserving to the states whatever is not specifically granted to the
feds. Seems breathing "deeper meaning" into the Constitution actually
means turning it inside out and rewriting it altogether. That's what
Gore judges would do.
Clinton-Gore judges also ignore limits on their power in order to
interfere in matters that should be left up to the people or their
elected representatives. The Constitution, for example, limits the
jurisdiction of unelected federal judges by requiring a concrete "case
or controversy" before they can get involved. It takes more than
disagreement before asking a judge to re-arrange a government agency's
practices or operations. Requiring plaintiffs instead to identify a
specific "final agency action" that actually violates the law avoids the
alternative of management-by-litigation.
Recently, the U.S. Court of Appeals for the Fifth Circuit voted 8-5
to throw out a lawsuit by the extremist Sierra Club, part of its nearly
two-decade campaign to disrupt logging in Texas. They wanted the court
to make "wholesale" and "sweeping" changes in the U.S. Forest Service's
timber management operations but did not challenge any specific agency
decisions or actions. The majority correctly said that judges had no
business interfering. Every judge in the majority was appointed by a
Republican president while all the participating Clinton-Gore judges
dissented, thinking judges can interfere and change agency policies
simply because some special interest group wants them to.
This decision is revealing in another way. The pundits and
speculators say both George W. Bush and Al Gore want to appoint a
Hispanic to the U.S. Supreme Court. Judge Emilio Garza wrote the
majority opinion in this case limiting judicial power while Judge
Fortunato Benavides joined the dissent favoring unlimited judicial
power. USA Today recently said that Judge Garza is on the Bush short
list and Judge Benavides is on the Gore short list.
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Another recent case shows how far Clinton-Gore judges will go to
achieve the results they want. In this case, U.S. citizens were
married, had a child, and the father filed for divorce. This all
occurred in Hong Kong, where a court gave the mother custody but
required the father's consent before the child could leave Hong Kong.
When the mother took the child to New York, the father filed suit there
claiming an international treaty recognizing "rights of custody" allowed
U.S. courts to order the child's return to Hong Kong. Noting that the
Hong Kong court had specifically given custody to the mother, the U.S.
Court of Appeals for the Second Circuit voted 2-1 that the father's veto
over the child leaving Hong Kong does not amount to actual custody.
Both majority judges were appointed by Republicans.
Facts and common sense were not, however, similarly important to
Clinton-Gore Judge Sonia Sotomayor, also said to be on Gore's Hispanic
short list. She dissented with the typical activist view that reality
is whatever she says it is. Though the case was about the authority of
U.S. courts, Judge Sotomayor dismissed a meaning of "custody" drawn from
"parochial" sources such as U.S. legal precedents and definitions. She
went searching for whatever meaning would get her to the result she
preferred. The majority responded that while her position might be "a
good idea as a matter of child development, it is incompatible with the
terms of the (treaty)" the court was responsible for interpreting.
And so is the way of the judicial activist, first selecting the
result she wants and then picking, choosing, manipulating, and morphing
whatever path will get her there. That's what will happen when Gore
judges "breathe" what he calls "deeper meaning" into the law. He means
they will make it up to achieve liberal political results the American
people have not chosen for themselves. Nothing could put our freedom at