Why the ’08 Election is a matter of life and death

I am a former fetus.

Born in Phoenix Arizona, February 1968. If I had been conceived 5 years later, I might not be here today. You see, I was put up for adoption in 1968. On January 22, 1973, the Supreme Court decided that Roe v. Wade established that any state laws restricting or banning abortion was a constitutional violation of “right to privacy”.

I don’t know who my birth parents are. I do not know the circumstances surrounding the decision to give me up for adoption; whether it was a selfish or a selfless act. Perhaps, both. All I know is that if I hadn’t been given life, and given up for adoption, I would not be who I am today; nor have been blessed with two loving parents who provided me with a stable home, values, and the opportunity to become whatever I wanted to become.

In truth, I’m not a hardcore pro-lifer. But I do find myself strongly aligned with most conservative causes.

Regardless of whether or not I am pro-life or pro-choice, one thing I do believe: Roe v. Wade was a flawed, incoherent decision, and a prime example of judicial activism. Which brings me to the issue of appointing Supreme Court Justices.

I believe with utmost confidence, that President Bush 43’s legacy will go the way of Harry S Truman- a president who was unpopular when he left office, with even lower approval ratings than our current president, yet who is today, consistently ranked as one of our top 10 U.S. presidents by most historians.

How Iraq turns out, will play a big role in how President Bush will be remembered by later generations; and it is far too early to know what the ripple effects will be, as it is still a “story without an ending”.

Of course, I also believe it to be true that the world is such that bad decisions can end with good results, and good decisions can still go badly. This is because no one person controls the course of history, and there are just far too many variables involved in how things play out.

To go back to my point on the Bush legacy, one thing should be clear, that vindicates President Bush in the eyes of conservatives who have been critical of President Bush’s brand of “compassionate conservatism”, thinking President Bush has taken us off the cliff: in the appointment of judges, President Bush has been outstanding.

As David G. Savage wrote in the Los Angeles Times, almost 3 weeks ago,

After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.

The rightward shift on the federal bench is likely to prove a lasting legacy of the Bush presidency, since many of these judges – including his two Supreme Court appointees – may serve for two more decades. And despite the Republicans’ loss of control of the Senate, 40 of Bush’s judges won confirmation this year, more than in the previous three years when Republicans held the majority.

For those who have been harsh upon Republicans in Congress, when they were the majority that didn’t behave like a majority in the House and Senate, “Republican senators have voted in lock step to confirm every judge that Bush has nominated. The Democrats have often broken ranks,”

According to Simon Heller, a lawyer for the liberal advocacy group, Alliance for Justice.

They say the ideological makeup of the courts has grown into a major issue on the right, and it has brought Republicans together, whether they are social conservatives, economic conservatives or small-government libertarians. “This issue unites the base,” said Curt Levey, executive director of the Committee for Justice, a group that lobbies for Bush’s judicial nominees. “It serves as a stand-in for the culture wars: religion, abortion, gay marriage and the coddling of criminals.” Nothing irritates conservatives more, he said, than having unelected judges decide politically charged issues that some believe should be left to voters and legislators. “Conservatives tend to blame judges for the left’s success in the culture war,” Levey said.

While Republicans find themselves somewhat divided heading into the election year, Bush is widely praised for his record of pressing for conservative judges.

“From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees,” said Washington attorney Bradford Berenson, who worked in the White House counsel’s office in Bush’s first term. “He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had.”

When Republicans lost the majority in the 2006 mid-term elections, so too, did President Bush’s chances diminish, in getting judges through.

(Update 2/09/08) Rich Galen writes:

Democrats in the Senate holding up – according to the Wall Street Journal – 208 nominees: 180 nominees to executive branch positions and 28 nominees to the Federal bench.

If Rush, Sean, Laura and the rest wanted to really do a favor for America, they would get their tens of millions of listeners amped up about the nominees who are being held up – some for as long as two years – by Senate Democrats who will not allow the President to govern and will not allow the Judicial Branch to function.

As Hugh Hewitt writes, in responding to those who defend John McCain over “the Gang of 14”, claiming that the Arizona Senator was right since it supposedly gave us Justices Roberts and Alito, as well as Judges Brown, Owens, and Pryor (Hewitt contends that they would have been confirmed, anyway, once the filibuster ended):

They lost many fine nominees as well. And the confirmation machinery didn’t even improve for the rest of the session. Numerous judges were left dangling at the end of 2006 when the Gang of 14 “deal” expired, and most of them like Peter Keisler, nominated to the second most important court in the country, the D.C. Circuit, are hostage still to the Democrats. The Gang of 14 got the GOP nothing.

Majorities matter. This is why, in a general election, it is vital to vote a straight Republican ticket. Sticking to party is a principled position.

So why are the next 4 to 8 years so critical? Because the appointment of Supreme Court Justices can last for decades, and affect generations. It can affect the course of our history and culture in a major way that is rather frightening. On the Supreme Court appointments, Steven M. Warshawsky at American Thinker, in making the case for Rudy Giuliani, writes,

After the president, the most powerful citizens in the country are the nine justices of the U.S. Supreme Court. They make decisions that define our most basic rights and freedoms. When these decisions are clothed in the language of the Constitution, they cannot be overturned except by a constitutional amendment or by a later decision of the Supreme Court itself. I hardly need explain how crucial it is – to conservatives and liberals alike – that judges sharing their worldviews are appointed to the Court. In the balance hangs whether there is a right to abortion or whether affirmative action is unconstitutional or whether gay marriage must be recognized by the states, and numerous other issues central to American life. As a result, there are few events in American politics more momentous, and more contentious, than the selection of Supreme Court justices.

In the next four to eight years, we can anticipate that there will be at least two and perhaps as many as five new appointments to the Court. As of November 2008, when the next president will be elected, the ages of the current justices will be as follows: John Paul Stevens (88), Ruth Bader Ginsburg (75), Antonin Scalia (72), Anthony Kennedy (72), Stephen Breyer (70), David Souter (69), Clarence Thomas (60), Samuel Alito (58), and John Roberts (53). The good news for Republicans is that the three youngest justices are solid conservatives, while the two oldest are strident liberals. These two, Stevens and Ginsburg, almost certainly will leave the bench during the next president’s tenure in office. By 2016, Kennedy, Breyer, and/or Souter (not to mention Scalia) also may succumb to age or infirmity. Replacing these justices with solid conservatives may finally accomplish the conservative counter-revolution on the Supreme Court that Republicans have worked tirelessly to achieve for decades.

It appalls me that there are conservatives out there, so hell-bent-out-of-shape angry because their uber-conservative dream candidate of choice is not running, or dropped out of the presidential race, that they plan to sit out the election (as if doing so in ’06 advanced the conservative movement) and not vote for the GOP candidate, because the candidate is not “pure” enough.

At the moment, my candidate of choice is Rudy Giuliani. That could change; I will probably hang onto my absentee ballot, until after Florida primaries.

One of the criticisms against Rudy Giuliani is that he is not pro-life. Rudy says he will nominate strict constructionists. That is good enough for me. He has been straight-forth on his position here, and has not pandered to the pro-life conservative base, by “flip-flopping”. What he maintains, is that the decision on abortion should be left up to state, and out of the hands of the federal government. Furthermore, Giuliani likes to point out that abortions went down 16% & adoptions went up 133% when he was NYC mayor.

Regardless of whether a president is pro-life or pro-choice, there is no guarantee that they will nominate judges who will end up being strict constructionists, despite the well-intentions to do so.

Warshawsky points out that Giuliani, Romney, and McCain all

promise to nominate “strict constructionist” judges, meaning judges who (in words taken from Giuliani’s website) “will follow the text of laws and of the Constitution and will not make policy from the bench.” There is no reason to believe that one of these candidates will appoint “better” judges than the others. All of them will select judges from the same broad pool of potential nominees. Nevertheless, as we have seen, for example, with Kennedy (appointed by Ronald Reagan in 1988) and Souter (appointed by George H.W. Bush in 1990), it is impossible to predict how a judge will decide cases once appointed to the Court. So a little humility is in order when evaluating candidates on this issue.

Few Republicans question whether Romney and McCain will appoint solid conservative judges to the Supreme Court. Because Giuliani personally holds liberal views on abortion, gay rights, and gun control, however, many Republicans do not believe him when he promises to appoint strict constructionists to the bench. I do not share this concern. Giuliani is an experienced lawyer and a sophisticated student of the American legal system. He understands the fundamental principles of rule of law, separation of powers, and enumerated rights. It is perfectly consistent for him to believe that the Constitution should be interpreted narrowly, while believing that the people and the states retain the right to pass laws of their own choosing (which may include, for example, laws authorizing abortion). Moreover, in general, Giuliani is more committed to individual freedom and limited government than either Romney or McCain. The idea that he is going to appoint more Ginsburgs and Breyers to the Supreme Court is absurd.

I find great relevance in Hugh Hewitt’s 2004 book, If it’s Not Close, They Can’t Cheat, to this day. Chapter 36, Pg 189 on “Abortion”:

The only way for the issue to be returned to legislative control, however, is for the federal courts generally, and the United States Supreme Court specifically, to be populated with genuine constitutionalists- jurists who understand and abide by the principle that our government cannot endure unless elected representatives decide all of the major issues of our society [as opposed to the activist judges usurping that role and legislating from the bench].

The appointment of such judges requires the election of Republicans at every level of the government, but especially in the presidency. Thus, the real pro-life voter will always vote Republican and will do so without threats and demands and loud condemnation of nominees who are insufficiently attentive to their causes.

Pro-choice absolutists cannot expect to control the Republican Party. As a matter of math, the GOP is a pro-life party. If abortion rights is the only issue of import to you, you ought to leave the GOP for the Democratic Party if you believe the issue must be decided by judges. If you are a pro-choice advocate who trusts in the legislative process, by all means stay.

That would be Rudy.

Regardless of how one feels about Giuliani’s candidacy, regardless of who the GOP nominee winds up being, I hope the conservative base understands what the stakes are in this election. Aside from the war controversy, all conservatives should rally behind the GOP pick, on the strength of Supreme Court appointments alone.

The Courts will chart the course of American culture and history, for generations to come.

Also blogging 35 years under Roe V Wade:
Freedom Eden