The Shape of Things to Come

It's just the way these things work: every so often there is a watershed election that dramatically affects the direction of the country. One such was 1980, when Ronald Reagan (God rest his soul) inspired us out of the malaise of the '70s. Earlier it was 1932 when Franklin D. Roosevelt inspired America, albeit in a different way, in the midst of history's worst depression. Some thought 2000 was another watershed year and perhaps because of September 11, 2001, it was, although it is too soon for historians to judge.

But there is little doubt that 2004 is a more likely watershed. Not only are the two candidates so radically different in personality and on the issues, but simple math makes it probable that, whoever is our next president, he will get to appoint two or more justices to the Supreme Court. Court appointments have shelf lives well beyond a presidential term. A president can wreak havoc for four years and be gone. A justice sits until death or retirement. The current chief justice is 80, and two of the associates are 74. There is only one -- Thomas -- under 65 years.

This court is sharply divided between those who hold for strict interpretation of laws against the original intent of the Founders, and those who liken the Constitution to a "living document" of silly putty, to be twisted into new designs.

So what choice does that leave us in the presidential race?

In Debate Round 2, John Kerry agreed that "the Supreme Court of the United States is at stake in this race," and he gave a credible preview of what he expects in a Supreme Court appointment:

I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I don't believe we need a good judge of that kind of definition on either side. ... Will a woman's right to choose be protected? ... These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law." (Bold emphasis mine)

Kerry derided President Bush for once saying that Clarence Thomas and Antonin Scalia were his favorite justices on the court.

Thomas and Scalia happen to be the two most judicially restrained members of the court, and the two most likely to oppose legislating by judicial fiat. In other words, they are strict constructionists. By singling out Thomas and Scalia, Kerry is letting the Left know that his centrist rhetoric is only verbiage designed to find an electoral majority. He'll govern as a liberal and appoint liberal justices who will "interpret the Constitution ... according to the law."

What does that phrase mean? By design the U.S. Supreme Court is supposed to examine the Constitution to see if a law is permitted. Kerry has it backwards, but we cannot assume it's a mistake. Consider, for example, Justice Ruth Bader Ginsburg who has actually cited U.N. treaties and international regulations proposed by NGOs (non-governmental organizations that are members of the United Nations bureaucracy) as justifications for some of her rulings on the Court. She finds law that she likes, and then applies its principles to see if the hoary old 1789 Constitution measures up. In several opinions she has suggested it needs re-interpretation in light of a more nuanced, internationalist modernity. Ginsburg is "centrist" Bill Clinton's gift to the Court. Thanks a lot, Bill.

With a Kerry win you can expect at least a couple of supremes a lot like Ginsburg, and conservative hopes of forestalling the further erosion of traditional American values will be dashed for another twenty years. Hello, gay marriage. Hello, loss of U.S. sovereignty to the U.N. Hello, more restrictions on what preachers and priests can teach their flocks. Goodbye, any chance to modify or erase the pseudo-scientific and morally bankrupt Roe v Wade.

And President Bush, who has yet to have a chance to nominate a single justice and has watched futilely as liberals have torpedoed many a good appellate court jurist nominee through an unprecedented use of Senate filibusters, what is his preference?

"I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States. ... And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution."

Clear choice.

Explain this to your friends and relatives in swing states. And vote.