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Here Come the Judges: The courts in the balance

National Review, August 14, 2000 by Robert H. Bork

Both George Bush and Al Gore are attempting to make the selection of judges an issue in the upcoming election. If they succeed, it will be one of the few times-perhaps the only time-the electorate has been moved by that issue. Gore has put the matter precisely: "In this election, the Supreme Court is at stake, [and] many of our personal liberties are at stake."

The question of judges is indeed a monumental one. It does not bear on national security, as missile defense and the readiness of the military do. Nor does it go to the vibrancy of the economy, as taxes and tax cuts do. Judicial selection merely goes to the heart of democratic government: the ability of Americans to govern themselves.

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It is time, and past time, to be blunt about the rule of judges. Many of them bear less resemblance to judges than they do to commissars. How else would you characterize men and women who have assumed the power to decide the most serious cultural and social issues facing America, who will be in place long after the president who named them leaves office, and who are accountable to no one, particularly not to voters or elected representatives? The only accountability these "robed masters" should have is to the meaning of the Constitution, a meaning discerned by study of its text, structure, and history. If justices ignore those constraints, as many of them do, they govern according to their own tastes, and we have no way of resisting or altering the ukases they hand down. Whatever else may be said of it, the rule of judges without any plausible reference to the Constitution can hardly be called legitimate in a nation that was designed to be basically democratic.

The Supreme Court and the courts of appeals are at tipping points. The Supreme Court is more often liberal, undisciplined, and imperialistic than it is restrained; but it is capable of being moved in either direction by the next president's choice of justices. The courts of appeals, which are final for all but a tiny percentage of litigants, are similarly situated.

What would be the consequences of a Gore judiciary? He has made that clear, and his message does not augur well for republican, let alone conservative, values. For one thing, the abortion right cobbled up by the Court in Roe v. Wade would be entrenched for years, probably decades, to come, and would be broadened. Partial-birth abortion would be a firm constitutional right, without even the pretense that a ban including a mother's-health exception might make a difference. Other restrictions, such as parental notification where a minor is involved, would fall by the wayside. So fierce is Gore on this topic that he has said that a pregnant woman under sentence of death must have the choice whether to have her unborn baby killed with her. On abortion issues, Kate Michelman would in effect be the Supreme Court.

Homosexuality would be normalized. Questioned about the Court's recent 5-to-4 decision that the Boy Scouts may refuse to have homosexual scoutmasters, Gore replied that the issue should depend on whether the Scouts are a "public organization or sufficiently intertwined with public activities." There, presumably, goes any limitation on open homosexuals in the military. He went on: "I disagree with discrimination against gays and lesbians. I just think the time has come to end that discrimination." Moral disapproval of homosexual conduct would be outlawed in any public and many private contexts. Open-housing laws, for example, would forbid a landlady to turn away homosexual couples, and the Court would uphold that as constitutional. The Court is within one vote of producing these results now.

We may expect racial and sexual quotas to flourish in government and private employment and in the faculty and student composition of universities. As Thomas Sowell has shown in a study of other nations, once preferences are put into place, even though touted as transitional, they become permanent, expand to cover new "victim" groups, and produce great bitterness and even violence. Legislative districting by race and ethnic group will go forward unimpeded. There is no better prescription for the continued Balkanization of America.

Criminal-law enforcement will become weaker and less effective. Miranda warnings have now become constitutional requirements, but far more awaits an activist liberal Court. Justices presently on the Court favor an expansion of the exclusionary rule by which reliable evidence of guilt may not be used at trial if the police have acquired that evidence in a manner that is displeasing to squeamish justices. They are not comparably squeamish about turning loose criminals who will rob and kill again.

Similarly, the death penalty would likely be abolished by Court diktat. Liberals have frequently viewed death as "cruel and unusual punishment" forbidden by the Eighth Amendment, despite the fact that capital punishment is explicitly shown to be available several times in the Constitution.

Here Come the Judges: The courts in the balance

National Review, August 14, 2000 by Robert H. Bork

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