Part I: WHY WE LOSE
ONE: “Is This It?”
I was still in bed when the cell phone and the BlackBerry came to life. I tried to ignore the ringing and whizzing sounds and catch some more sleep, but the noise wouldn’t stop. It wasn’t just a few calls and e-mails, but a whole stream of them pouring in at once. I realized something must have happened—something big.
That “something big” became clear once I checked the BlackBerry: President George W. Bush had just announced his nominee to replace Justice Sandra Day O’Connor on the U.S. Supreme Court—his White House counsel, Harriet Miers. And as one of the urgent e-mails instructed me, I had a conference call about Miers in just moments—a call with the White House team defending the president’s pick.
Who on earth is Harriet Miers? I thought.
Only days earlier I had attended the formal swearing-in ceremony of Chief Justice John Roberts in the East Room of the White House, and through my work as an officer of the Federalist Society, the nation’s most prominent conservative legal organization, I knew the members of the White House team advising the president on Supreme Court nominations. Still, the Miers pick surprised me.
When the conference call began, I listened intently as the group, made up of reputable conservatives and led by former Republican National Committee chairman Ed Gillespie, made the case for Miers. They emphasized her loyalty to the president and her accomplishments as an attorney in Texas. But then something strange happened: They stopped talking, when it seemed they had only begun their case.
Maybe I was still groggy. I had jotted down only a few notes—generic comments about the nominee’s view that “the role of the judiciary should be limited” and her vow to “strictly apply the laws and the Constitution.” Surely there was more to say for Harriet Miers’s qualifications, a stronger case to make? I had yet to hear anything about Miers that convinced me that she was a committed conservative. I had publicly supported the Roberts nomination and expected to do the same for this one. I naturally began searching my mind for ways to phrase the case for Miers in the inevitable television debates I’d be engaged in with liberals. Then I realized, Forget the Left, what would I say to my friends on the Right about the pick? I struggled to convince myself that this was a good conservative candidate.
So finally I piped up with a question.
“Is this it?”
The point was, when you’re talking about the highest court in the land, the president must compile a formidable case for his nominee. The White House team hadn’t done it. And as I now listened to them repeat the same few talking points, it became clear—as it soon would to the rest of the conservative movement—that there really wasn’t more to the case for Harriet Miers.
I left the call unconvinced and a bit confused. After conservatives had spent years waiting for an opportunity to change the balance of the Supreme Court, was Miers really the best pick? Not at all.
And so, like many other conservatives, I breathed a sigh of relief when Miers withdrew her name from consideration and the president nominated a judge with unquestionably strong conservative credentials—Samuel Alito—in her place. A bullet dodged, perhaps. But relieved as we all were, no one on the Right should make the mistake of celebrating this near-miss as a victory for the conservative cause or for the country. We should be worried—deeply worried.
Think about it: How could someone like Harriet Miers come so close to sitting on the Supreme Court at a time when a Republican resides at 1600 Pennsylvania Avenue and the GOP solidly controls the U.S. Senate? The disturbing answer is this: The guidelines conservatives use to select judges, and the language we use to describe the role we want courts to perform, are so broad and vague as to be essentially meaningless; they apply to Miers just as much as they do to Supreme Court justices Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.
In fact, as much as I admire and respect Chief Justice Roberts and Justice Alito, I cannot celebrate their confirmations in themselves as major victories for conservatism—and neither should you. Even with Roberts, Alito, Scalia, and Thomas sitting on the Supreme Court, we have only four conservative justices out of a total of nine. And that’s at most: As conservatives have learned the hard way, supposedly conservative jurists have a way of “evolving” to the left once they ascend to the bench. That’s no accident—and you’ll see why in this book.
In any case, conservatives can’t make the mistake of believing that a mere two appointments to a single court—even to the Supreme Court—will magically fix all the problems in the courts and stop the Left’s legal assault on America. The deeply uncomfortable but undeniable truth for conservatives is one the Harriet Miers saga highlighted: We still don’t get it when it comes to the courts.
In the days after the White House conference call—even after Miers withdrew—I kept coming back to the question I had asked Ed Gillespie’s team: Is this it? Is this the way the conservative movement is going to address the courts even after being outgunned and outmaneuvered by the Left for some seventy years, ever since liberals began dominating the judiciary? Is this the strategy—mouthing platitudes about “respect for the rule of law” and “judicial restraint” and “strictly interpreting the law”?
Is this it?
Sadly, I concluded, yes, it is.
And the nation will continue to suffer if conservatives don’t come up with an entirely new—and radically different—battle plan for the courts and American law.
This book is that battle plan.
The Secret Weapon
These days conservatives rail against the courts, and with good reason. Liberals win victory after victory after victory in the judiciary—advancing a radical agenda that could never win approval in the democratic process. Consider: Today’s law permits the starving of a woman in Florida but not of a dog; permits aborting an unborn child but criminalizes the destruction of spotted-owl eggs; permits the consideration of race in law school admissions but does not allow wardens to consider the racial composition of prison gangs in making decisions about cell assignment; considers minors too immature to be executed for murder but more than capable of deciding whether to have an abortion without consulting parents; grants more legal protection to the “right” to abortion—which is mentioned nowhere in the Constitution—than to the right to property or right to bear arms, both of which are identified in the Constitution; and forbids laws banning virtual child pornography but permits federal laws criminalizing the running of political advertisements in the months leading up to a federal election.
American courts have gone so far as to increase taxes, ban nativity scenes in public parks during Christmas, mandate the approval of gay marriage, declare the recitation of the Pledge of Allegiance in public schools unconstitutional because it contains the phrase “under God,” prevent public schools from inviting clergy to give nondenominational prayers at graduation ceremonies, compel states to provide free taxpayer- funded public education to illegal immigrants, restructure election districts, resolve presidential and gubernatorial elections, and second-guess presidential decisions about how to fight a war.
And the Left continues to achieve extraordinary success in the courts even now, despite the sharp right turn the nation has taken over the past quarter century; despite Republican control of the White House, both houses of Congress, and most state legislatures and governorships; despite the fact that Republican presidents have appointed most of America’s federal judges; and despite the fact that for the past thirty years seven of the nine Supreme Court justices have been Republican appointees—something that should temper the enthusiasm of conservatives who rejoice in the mere ascension of John Roberts and Samuel Alito. Conservatives rightly recognize that what Alexander Hamilton once called the “least dangerous branch” of government has instead become the most dangerous branch.
Something is wrong here—something is very wrong.
In the popular Harry Potter books and movies, the game Quidditch revolves around the Golden Snitch—a small, winged ball that zips around the playing field. Basically, when a player captures it, the game ends and his team wins.1 The courts have become the Golden Snitch of American politics: If one party captures the courts, that team wins. The party then has the ultimate power: to strike down laws that the elected branches enact and to shape American society for years to come. And the frightening truth is that the Left has held the Golden Snitch for some seventy years, despite the Republicans’ success at the polls.
No conservative who is being honest with himself can deny how badly we’re getting beaten in the courts. The question, then, is: Why do we keep losing? How does the loony Left, discredited virtually everywhere and in countless respects, keep using the legal system to advance its radical social and political agenda seemingly at will? The conservative movement includes many sincere, intelligent, earnest representatives committed to keeping liberal judges from destroying “the land of the free and home of the brave.” Yet we’ve made little progress in our fight to stop the left-wing judicial assault.
I’ve spent years in the legal and political trenches fighting for the conservative cause—as vice president of the New York City Federalist Society, as a practicing attorney, as an author, and as a legal and political commentator on television and radio. I’ve worked closely with many of the Right’s most able legal and political minds and spoken at length with them about how we can fix this urgent problem. I’ve attended more law conferences, speeches, and lectures than I care to count in hopes of helping the Right fight back. And I’ve long wanted to believe that the solutions the conservative movement usually advances would finally begin to pay off, for many of these proposals come from conservatives and legal experts whose opinions I deeply respect. Indeed, for many years and in countless media appearances I have argued passionately for many of these same ideas. But the lessons of history—underscored by the eye-opening Harriet Miers experience—have led me to conclude, reluctantly, that a new approach is required.
The plain truth is this: The Right will never push back against the liberal legal assault until we abandon our own self-defeating tactics. That’s right, self-defeating. Our strategy (such as it is) is to pillory liberals for their underhanded (albeit highly effective) tactics in the courts—judicial activism, inventing rights and principles found nowhere in the Constitution, ignoring legal precedents when it suits their needs, relying on foreign precedent to justify desired outcomes, suing to achieve in the courts what they can’t achieve through the demo- cratic process, and much more. And after we attack, criticize, and harangue the Left, we propose this alternative: Everyone should play by the rules—the rule of law.
In essence, all that proposal amounts to is this: Hey, guys, this isn’t right. Let’s cut it out.
Yes, that’s it. You’ve heard it all before, though not quite in those terms. Instead, you hear it phrased in terms of the Right’s favorite legal catchphrases. Think back to the Supreme Court nominations for John Roberts and Samuel Alito. How many times did you hear Republican politicians and conservative commentators—judges, academics, editorial writers, syndicated columnists, television and radio hosts—call for “judicial restraint,” “judges who strictly interpret the law,” “judges who won’t legislate from the bench,” “an end to judicial activism,” “judges who respect the rule of law,” or some variation thereof?
It all sounds great, and indeed conservatives should be credited for having a clear conception of how the Framers intended the judiciary to work—that judges should not be “politicians in black robes” with the power to determine how we all live our lives. In fact, I think we can all agree that it would be ideal if the judiciary really did play the role in society conservatives say it should.
But I’m here to tell you: It ain’t happening. Yes, I would love to embrace the Constitution and use its text to resolve all questions of constitutional law. I would love it if judges stopped focusing on political outcomes—upholding laws whose objectives they support while striking down laws of which they disapprove. I would love it if courts hadn’t spent the past seventy years inventing certain rights and taking others away from Americans. I would love it if left-wing legal organizations stopped filing lawsuit after lawsuit after lawsuit until finally they get the political outcome they want. Like it or not, though, all of these things are realities of twenty-first-century American law and politics. Simply wishing they didn’t exist will not make them disappear. Sorry, conservatives, we’re not in Kansas anymore.
And even if somehow, magically, we could click our heels and get every one of the thousands of judges in America—many of them proud liberals with lifetime appointments—to stop legislating from the bench, what would that buy us? Not enough, because this step does nothing to address the seventy years of liberal legal precedents now on the books. In essence, the conservative proposal of judicial restraint is purely a defensive measure. It would try to lock in the status quo—and the status quo is a legal system that skews radically to the left. As conservatives, we must finally admit to ourselves that not only is our approach to the courts fanciful, it’s not even desirable. We can’t remain blindly committed to the same losing strategy.
So what do we do? We must stop playing defense against the courts and instead go on offense by using the courts. We must take back the law from liberal judicial activists and thwart the loony Left’s assault on America. Fortunately, there’s a secret weapon we can use to do that. And the weapon is lying right in front of us, hiding in plain sight, ours for the taking. It’s a secret only in the sense that the conservative movement refuses to consider it as an option. In fact, it’s a weapon that the Left has wielded against us for decades, and with startling results.
The weapon? Judicial activism.
Yes, judicial activism—the very thing conservatives decry at every turn.
Wait, does this mean I’ve become a feel-good liberal, torn up my vast-right-wing-conspiracy membership card, turned my back on the Federalist Society, and become Air America’s seventy-ninth listener? Not at all. As you’ll see in this book, conservative attacks on judicial activ- ism have missed the point: The problem with the courts is not judicial activism per se, but liberal judicial activism. Judicial activism is nothing but a tool; what matters is for what purposes the tool is applied—for good or for bad.
Radical as it may sound to conservatives who have been taught that judicial activism is an inherent evil, our secret weapon—conservative judicial activism—in fact offers us the greatest opportunity to preserve and protect the rights, freedoms, and ideals that the Constitution was designed to protect and that America’s Founders cherished. Even those committed to ending judicial activism altogether must realize this point: No strategy conservatives adopt, other than engaging in judicial activism ourselves, will end judicial activism by the Left.
Conservatives now have a golden opportunity not just to thwart future liberal gains but actually to convert America’s courts into allies of the Right and the American way of life. Now is not the time to settle for half measures. Embracing such strategies as “judicial restraint” may have made sense in a previous era when the conservative movement was confined to the margins of American political life, but we are now in a position to start governing, not just reacting to the Left. Times have changed, and the Right should, too.
There is no guarantee that conservatives and Republicans will continue to dominate the political scene as we have in recent years. We must not hesitate any longer to capture the courts—the last liberal stronghold.
Myth vs. Reality
If conservatives want to thwart the liberal assault, the first thing we must do is to abandon the illusions we have clung to for so long. One of the great virtues of conservatism is that it teaches us to be realists, to look at the world as it truly is, not as we wish it to be. Unfortunately, conservatives do not take this approach to the courts. Here, it seems conservatives and liberals have switched roles. Conservatives have become utopians when we assess the courts. And liberals, who typically engage in wishful thinking, take a cold-eyed look at the courts and use the judiciary skillfully—ruthlessly—to achieve a precise political and social agenda.
This bizarre role reversal must stop. Conservatives must accept the reality of the modern law, even when the truth is uncomfortable. Not only must we accept this reality, we must adapt our strategies to it. Otherwise the conservative political agenda and the American way of life will keep getting destroyed—legal case by legal case—in the courts.
That means we must stop clinging to dangerous myths like these:
myth: Courts should exercise judicial restraint.
reality: Judicial restraint will never be a reality—and even if it could be reality, we don’t want it now.
Sure, we’d all like to rein in judges and get them to act within the narrow confines of the role the Founders expected them to play. But how in the world could we ever make this happen? There are upwards of 19,000 judges in the federal and state court systems, according to the reference work The American Bench: Judges of the Nation. Many of these judges hold lifetime tenure. Appointing judges who honor judicial restraint (which is harder to do than it sounds, as you’ll see) does nothing to stop the liberal activists already on the bench from pushing the left-wing agenda. Besides, as noted, even if we could miraculously convince every judge in America that he must never overstep his authority and must simply “follow the law,” we’d have done nothing to get rid of all the existing liberal legal precedents— to which judges who believed in “judicial restraint” would be in- clined to defer. Think of it is this way: Conservatives find themselves deep in a hole after seventy years of liberal judicial activism; merely putting down the shovel by achieving judicial restraint might ensure that we didn’t dig ourselves deeper, but it wouldn’t lift us out of the hole.
myth: Judges should be apolitical.
reality: Judges don’t—and can’t—check their ideology at the courtroom door; they often, by necessity, function as politicians wearing black robes.
Thanks to Bernard Goldberg, bloggers, the Media Research Center, the Fox News Channel, and the rest of the new media, most Americans have finally abandoned the myth of an unbiased media and accepted the notion that even earnest and honest reporters are not truly objective. Now we must reject the myth that judges are apolitical and unbiased. Just like all journalists—indeed, just like everyone else on the planet—judges come to the table with prejudices and biases that do not get checked at the courtroom door. We mustn’t pretend otherwise. What economist and author Thomas Sowell said of people who disagree on political issues applies equally to judges who arrive at different judgments: “they are reasoning from fundamentally different premises” and “have different visions of how the world works.”2 Any judge’s starting premises and worldview will naturally enter into his reflections on the complex legal and political questions he confronts every day. Is it mere coincidence that in hotly contested political cases, Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg often line up on one side and Justices Scalia and Thomas line up on the other? And do you harbor any serious doubts about how Hillary Rodham Clinton or Jesse Jackson would rule as judges presiding over hot- button legal cases?
myth: Judges should just follow the law.
reality: Deciding what the law is ain’t always easy.
Conservatives frequently criticize liberal judges for acting “lawlessly” or “imperially.” Usually such accusations ignore a key fact about law at the highest levels and especially in the most politically charged constitutional cases: the law is often ambiguous and leaves room for multiple reasonable interpretations. Sure, intelligent, serious people can debate various rulings and the reasoning behind them, but there’s often no way to prove definitively that only one interpretation is legitimate. It’s not as if we can just feed all the details of a case into a computer and have it spit out the correct answer. If the law was clear-cut, we wouldn’t see so many cases endure appeal after appeal, sometimes all the way to the U.S. Supreme Court. And we’d see a lot more unanimous court rulings than we do. Even the Right’s favorite Supreme Court justices, Scalia and Thomas, disagree with each other on occasion.3 And even the Constitution, a brilliant, clearly worded document, leaves ambiguities. Remember, Thomas Jefferson and James Madison fought about the meaning of the Constitution back in the eighteenth century.4 If Jefferson and Madison couldn’t always agree on the Constitution’s meaning, should we realistically expect different from today’s sitting judges or political leaders?
myth: Judges should defer to the elected branches.
reality: Judges make law all the time, and often we want them to.
It’s easy to get exercised about the fact that five unelected judges sitting in Washington, D.C., can overturn laws passed democratically. Appallingly, liberal judges have often ignored the wishes of the people to follow the objectives of the leftist elite. For example, in 2003 the Supreme Court overruled the Texas state legislature and struck down a law banning homosexual sodomy. Conservatives were up in arms over the ruling. But two years later we were equally horrified when the court approved an eminent-domain law in New London, Connecticut, that enabled the city to seize private property and sell it to private developers simply to generate more tax revenue. In the first case, the Supreme Court overruled “we the people,” but in the second case the court deferred to the democratic process. And both cases rightly angered conservatives.
The problem, then, was not an activist court; what angered us was the specific outcomes of the cases. Conservatives thus cannot call for such simplistic solutions as asking judges to defer to “we the people.” Like liberals, we should support judges’ ability to make law that invalidates undesirable action by elected branches of government. We only disagree with liberals on when judges should exercise that power.5
myth: Judicial activism tramples on the rule of law.
reality: Judicial activism is the rule of law.
Conservatives regularly appeal to the “rule of law” in condemning judicial activism. It’s another nice sentiment that ignores reality. We must remember that in many cases judges themselves are the ones who define what the rule of law is. Justice William Brennan, one of the heroes of the Left, liked to impart a simple lesson: “What is the first rule of the Supreme Court? You have to get to five.”6 Five justices, that is—a simple majority.
The Left gets it.
But we must.
The Battle Plan
These five myths are only a sampling of the illusions preventing conservatives from adopting a winning strategy in the courts. We’ll visit more later. The key point is this: If we don’t open our eyes to the sometimes harsh reality of our situation, liberals will continue to use the courts to foist their policies, programs, and vision of society on all Americans.
And once we open our eyes, we’ll see exactly how the courts can become our ally in the war against the loony Left. To see real change, we can’t be content simply to pick up the weapon of conservative judicial activism, important as that is. We must rethink our entire approach to the courts, judges, and American law. We must abandon everything we thought we knew, since we’ve been operating under illusions and false assumptions for far too long. And we need all-new tactics, a whole new battle plan that is more intelligent, more aggressive, and more constructive.
Disrobed provides that battle plan. In addition to embracing conservative judicial activism, conservatives can and must:
•Pick “Judicial Reagans.” Our first priority is to select solid and reliable conservative judges.
•Embrace litmus tests. We must recognize that the often-disparaged litmus test represents the only way to ensure that we get reliable right-wing judges, not more David Souters.
•Understand “Judicial Darwinism.” We need to recognize that many judges “evolve” to the left once they arrive on the bench (as so many Republican appointees have), and then deploy strategies to encourage judges to “evolve” to the right.
•Enjoy better living through litigation. We must use well-timed and well-placed lawsuits to advance conservative social and political priorities.
By now conservatives recognize how deep the problems run in the courts. Still, sometimes we make the mistake of thinking that these problems are far removed from our everyday lives. The law, in fact, affects virtually everything we do, and the left-leaning legal system poses a devastating threat to the “unalienable rights” referenced in the Declaration of Independence—indeed, to the American way of life.
We must not miss this opportunity to fight back, at last, against liberals’ attempt to remake America according to their vision—a vision at odds with that of the Founding Fathers and most Americans.
The good news is that this is a fight every conservative can support and even join. For all the focus on the Supreme Court, we must realize that the Left is waging war throughout the entire legal system. And all of us can affect how our courts respond to the left-wing social and political crusade, especially at the state court level; thirty-nine states hold some form of judicial elections, meaning that most of us have a direct say in what kinds of judges are deciding the issues that matter most to our communities.
I, for one, shudder to think what this country might look like if we allow liberals to continue to dominate the courts as they have for the past seventy years. Conservatives have been fighting a losing battle for years now. The battle plan I put forward here might sound radical, but it’s really not. The battle plan merely acknowledges the reality of the current legal system and culture—the things we’ve been afraid to admit to ourselves. And the battle plan fully exploits that reality for the Right.
Be prepared to set aside your comforting assumptions about the courts. Trust me, the Left would be delighted to see conservatives stick with the same old misguided assumptions and failed strategies. But we should give them neither solace nor quarter. If we adopt this bold new battle plan, American conservatives can finally thwart the loony Left’s political and social agenda in the courts while advancing the conservative cause and the American way of life.From the Hardcover edition.
Excerpted from Disrobed by Mark W. Smith. Copyright © 2006 by Mark W. Smith. Excerpted by permission of Crown Forum, a division of Random House LLC. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.