There's an old adage, "The enemy of my enemy is my friend." More often, however, the reverse is the case: The friend of my enemy is my enemy – and in the past few days, no better examples of that can be found than in the writings of the country's most vocal religious pro-censorship groups.
"We may long remember January 31, 2006, as the most important date in our republic's recent history," trumpeted Tim Wildmon, son of American Family Assn. (AFA) founder Don Wildmon. "It is the day that one Samuel Alito was confirmed by the United States Senate to replace the retiring Justice Sandra Day O'Connor."
"The reason I write of the importance of this vote is that [it] was Justice O'Connor who was often a pivotal vote against traditional values in many of the most critical decisions of our time," Wildmon continued. "Despite being appointed by the most conservative president of the modern era, President Ronald Reagan, O'Connor was a liberal on social/moral issues. In addition, Justices Anthony Kennedy and David Souter -- appointed by Reagan and President George H.W. Bush, respectively -- also turned out to be disappointments to conservatives on social and moral issues. The appointments have turned out to be huge disappointments to Americans who voted for Republican presidents in hopes of seeing the Supreme Court return to a conservative majority."
Wildmon went on to define "conservative" as someone – in this case, a Supreme Court justice – with an ideology that prevents that justice from "striking down laws that supported traditional moral values or a biblical worldview."
Wildmon apparently doesn't know that neither "God," "Christ" nor the Bible are mentioned in the U.S. Constitution, and that in the 1797 Treaty of Tripoli, President John Adams and Congress affirmed that the "United States is in no sense a Christian nation." However, that didn't stop him from stating that, "our side -- the traditionalist side -- can win on most issues at a legislative level if only because we will out-work those of the secular Left." There's little doubt that the religio-conservatives will "out-work" all other pressure groups, but unfortunately for Wildmon, the Constitution is secular; the only question will be if Justice Alito understands that.
Wildmon's a bit testy because last May, U.S. District Court judge Joseph Battaillon struck down an amendment to the Nebraska Constitution that defined marriage as between one man and one woman, thereby upholding the U.S. Constitution's Fourteenth Amendment, which says, in pertinent part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It can certainly be reasonably argued that the ability to marry another person, whatever their gender may be, would be one of the "privileges ... of citizens of the United States."
But, according to Wildmon, "This is what the majority of people in this country are tired of, I believe. And so they put their trust in President George W. Bush to appoint federal judges -- including Supreme Court justices -- who are not going to do this type of thing." "This type of thing" being, apparently, to enforce the entire Constitution.
"Assuming new Chief Justice John Roberts and Justice Alito are both the strong conservatives everyone thinks they are," Wildmon continued, "if you combine them with Justices Clarence Thomas and Antonin Scalia, that makes four votes in favor of returning the right of self-governance to the states and municipalities and thus returning government to the people." To do this, of course, those justices would have to negate large portions of the U.S. Constitution, but what the hell, eh?
What Wildmon's referring to, of course, is "judicial restraint," the opposite of what religious conservatives have been yammering about for the past couple of years, "judicial activism."
"It is Alito's reputation as a strict constructionist that has some conservative leaders eagerly anticipating his presence on the high court," wrote AFA "reporters" Jody Brown and Bill Fancher, "particularly when they consider that another jurist with similar credentials -- Chief Justice John Roberts -- already sits on the bench. Dr. Richard Land of the Southern Baptist Convention's Ethics & Religious Liberty Commission believes that those two men's 'strongly held views of judicial restraint' bodes well for the country."
"On many occasions," Brown and Fancher quoted Land as saying, "members of the Supreme Court felt no compunction about striking down laws -- passed by the people's elected representatives -- that offended their personal sense of right and wrong, as opposed to interpreting the Constitution. Today [with Alito's confirmation], a giant step has been made toward restoring the constitutional balance of powers envisioned by the founders of our nation."
But it was the relatively conservative Justice Anthony Kennedy, nominated to the Court by the relatively conservative Ronald Reagan, who wrote the opinion in Lawrence v. Texas, striking down Texas' (and the nation's) anti-sodomy laws, so there's good reason to believe that Kennedy was basing his decision on "interpreting the Constitution" rather than his "personal sense of right and wrong."
And as for "restoring the constitutional balance of powers envisioned by the founders of our nation," Land might want to read the Federalist Papers, the collection of documents by which several of the Founding Fathers explained the Constitution to the common citizens. As James Madison put it in Federalist Papers #47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
Hmmmm ... let's see: Conservative Republicans now control the presidency, both houses of Congress, and are one seat away from controlling the highest judicial body in the nation ... Yep, sounds like "the very definition of tyranny" to us!
The Brown/Fancher article goes on to quote David Bereit, executive director of the rabidly anti-abortion American Life League, as saying that Alito's record "offers pro-lifers 'reason for hope and optimism' about the future," and "suggests that he will help to ensure justice for all Americans -- born and pre-born." Attention, attorneys: With Justice Alito, you now apparently have a whole new class of clientele: The "pre-born"!
Meanwhile, over at the Center for Reclaiming America, D. James Kennedy, the preacher who bankrolled that two-and-a-half ton Ten Commandments monument which then-Alabama judge Roy Moore had installed in the Montgomery courthouse until forced by what he would undoubtedly describe as another "activist" judge to remove it, had a few choice slogans to say on Alito's behalf as well.
"Mr. Alito’s prior commitment to the Constitution — and not to any ideological persuasion — will move the Court toward its proper function as an arbiter of the rule of law and away from its dangerous role as an agent of social change," Kennedy claimed.
The syntactically-challenged Kennedy went on to say, "Federal judges have been for too long a liberal safe harbor who, beyond the reach of the people, impose policies on the nation that have no relationship whatsoever to the plain text of the U.S. Constitution or the wishes of the electorate. Two examples: Lawrence v. Texas, which gave sodomy constitutional protection and Nebraska v. Carhart, which made partial-birth abortion a constitutionally protected act."
Kennedy never got around to mentioning just where in the Constitution the federal government or, via the Fourteenth Amendment, the states were given the power to choose which consensual sex acts were acceptable for adults under the law and which weren't, nor which clause allows those same bodies to interfere with the medical judgments of licensed physicians to terminate pregnancies – but he seemed pretty sure that Justice Alito could.
"While Mr. Alito, quite properly, has not announced his position on Roe [v. Wade] and its related rulings," Kennedy (who apparently was not in the vetting loop) claimed, "I believe that his fidelity to the text of the Constitution can lead to just one conclusion: Roe was wrongly decided."
Perhaps Alito's "fidelity to the text of the Constitution" will also "lead to just one conclusion": That Miller v. California was wrongly decided as well!
The Founding Fathers' "original intent" is also a popular refrain among religio-conservatives, who may not have read (or would simply like to forget) the Oregon Supreme Court's ruling in State v. Ciancanelli, which gives an alternate "traditional" interpretation of the government's power to suppress sexual speech.
Hence, when former Meese Commission counsel Alan Sears, now head of the judico-conservative Alliance Defense Fund, said of Alito's confirmation, "America needs justices on the Supreme Court who recognize that ruling according to the Constitution's original intent is critical at this time in our nation’s history," and that "We hope that Justice Alito helps reverse the increasing tendency of judges to legislate from the bench," it's unlikely that he was referring to adult material.
Sears also quoted Thomas Jefferson who, in 1804, said that "the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and the Executive also in their spheres, would make the judiciary a despotic branch." What Sears failed to mention is that Jefferson's statement was almost certainly a sour-grapes reaction to the previous year's Supreme Court decision in Marbury v. Madison, the case which established the high court's power to review actions of the executive and legislative branches in light of the powers granted to those bodies by the Constitution – a function that only the Supreme Court can perform, given the fact that it's been shown time and again that the president and Congress sometimes have little understanding, let alone respect, for the limits their powers have under that Constitution.
The Traditional Values Coalition's (TVC) Andrea Lafferty shared Sears' myopic vision of the Supreme Court's role.
"The Traditional Values Coalition will continue to fight for federal judges, including Supreme Court Justices who understand their proper role in our Republican form of government," she wrote. "They are not to operate as unelected tyrants who impose their own social views upon an unwilling public. They are to interpret the Constitution and the laws of the land — not create them."
Sadly, most of the religio-conservative commentators seem to have little ability to distinguish between the Supreme Court "creating laws," which it constitutionally cannot do, and striking down laws that either violate constitutional principles or which exceed the powers of the body that passed them.
But we have to wonder how Lafferty's statement would jibe with the Roberts court's order in the (very) recent case of Ayotte v. Planned Parenthood.
In a unanimous opinion, the Court held that, "If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies ... [w]e hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."
There's just one problem with that. During argument before the Court on that very issue, when Solicitor General Paul D. Clement urged the justices to write an "emergencies" exception into the New Hampshire anti-abortion law that the state legislature had specifically rejected, Justice David Souter asked, "Why wouldn't it be an abuse of discretion in this case? Because there seems to be an ample record here that the legislature, or a majority of the legislature made a conscious choice that they would rather have no statute than a statute with a health exception in it. They deliberately said the only statute we want is one without a health exception."
But when the Court's order was issued, it essentially required the trial court to do just that: Rewrite the law in exactly the manner the New Hampshire legislature had rejected! Now, that's judicial activism – approved by at least three justices, including the Chief, who claim to reject such activism!
TVC's chairman Louis P. Sheldon weighed in on Alito as well.
Speaking of the alleged similarities between the statements of the Democratic senators on the Senate Judiciary Committee, Sheldon opined, "Perhaps the similarity in misstatements of fact exist because the Democrats on the committee all apparently consult with the same radical leftist organizations such as the Alliance for Justice, Center for American Progress and People for the American Way. These groups crank out their 'talking points' memos and 'studies' that purportedly describe Judge Alito’s record — yet they all are consistently inaccurate and present a sadly distorted picture of Alito."
Actually, that's exactly what the Republican National Committee was doing during the confirmation process, and in a classic denial attempt, actually published a disjointed screed on their website titled, "Puppet Politics: Values Edition."
Finally, now that the religio-conservatives have managed to secure high court seats for four justices that will undoubtedly follow a right-wing religious agenda, some commentators turned their thought to the next vacancy.
When asked by a spokesflack for James Dobson's Focus on the Family, "So, do you have any recommendations to the president on whom -- or what kind of candidate -- he should nominate next?", Family Research Council's Tony Perkins answered, "I think now is not the time to shrink back, but to become even bolder in nominating individuals who clearly and unapologetically subscribe to a judicial policy of restraint. I'm hopeful the president will do that with another nomination along the lines of a Scalia, a Thomas, an Alito or a Roberts."
Was there any doubt?
But reactionary online newszine NewsMax went even further. Opining that Justice John Paul Stevens would be the next justice to either retire or die, NewsMax "reporters" Jason Barnes and Jim Meyers wrote, "Stevens has not made any formal announcement regarding his retirement, nor is he known to be in poor health. But he is 85 years old, and rumor has it that he hopes to have his replacement named by a Republican president."
"'The buzz in Washington is that Stevens was appointed by a Republican president and he considers himself one that plans to retire under a Republican president,' Gary Marx, executive director of the conservative Judicial Confirmation Network, told NewsMax."
"Rumor has it"! Or as the old saying goes, "Dream on, boy – they can't stop you from dreamin'"
But as Gary Bauer, former head of the Family Research Council and now president of the ultra-conservative group American Values, put it, "The next vacancy, depending on who it is, will really be the mother of all battles."
But leave it to Mr. OxyContin for unabashed reactionary optimism:
"Bring on the next vacancy," Rush Limbaugh said Tuesday. "We are on a roll."
