- The Washington Times - Friday, October 27, 2000

As the courts go, so goes the country. So where will the courts go after the November election? The candidates promise to appoint very different judges.

George W. Bush says he will appoint "strict constructionists" who will "interpret the law, not make it." Left-wingers such as Jesse Jackson warn these are "code words" identifying judges who would undermine their political agenda. But there's no code here at all. These restrained judges believe that the people, not they, make the law, and that laws actually mean something. Saying that judges who respect the people's agenda threaten the liberal agenda is admitting that the liberal agenda is not the people's agenda. The point is that political agendas liberal or conservative should be pursued in the legislature, not the courts.

Al Gore says he will appoint judges who breathe "deeper meaning" into the law. These are the real code words, identifying judges who first pick the result they want and then morph the law into what they need to get it. The law is whatever they say it is so society will be whatever they want it to be. We know what Gore judges will do because we know what Clinton-Gore judges are doing.

In one case, Clinton-Gore judges struck down the teen curfew adopted in Washington by breathing into the Constitution a right for young thugs to roam the streets all night without supervision. When another federal appeals court voted 2-1 to uphold a similar curfew, a Clinton-Gore judge dissented, apparently lacking enough breath to create the same right.

Two Clinton-Gore judges joined in the 2-1 decision by the U.S. Court of Appeals for the Sixth Circuit that school boards cannot open meetings with prayer. They really had to get creative in this case because the U.S. Supreme Court has said "deliberative public bodies" can open meetings with prayer and state and federal courts have upheld the practice by city councils and county commissions.

These Clinton-Gore activists finally said that school board members are actually more like students than legislators; if the kids cannot pray in the classroom, the adults can't pray in the boardroom. That's a lot of heavy breathing.

A Clinton-Gore judge recently wrote a 2-1 decision that a school can be sued for expelling a student under a zero-tolerance weapons policy. He ignored the Supreme Court's warning that federal courts must not second-guess school officials in addressing factual issues or rewriting school regulations in such cases. The dissenting judge warned that this decision rejects the traditional rule that "federal courts play a very limited role in public education, which is most properly left in the competent hands of state and local authorities."

When one Clinton-Gore appeals court judge had been a law professor, he wrote articles promoting a "discretionary" (e.g., a made-up) Constitution that allows judges to declare legislatures "in default" and substitute their judgment for legislative decisions. When another Clinton-Gore judge was previously on the trial bench, he was repeatedly reversed and criticized by higher courts for basing decisions on his "own views" rather than on the law and "superimpos[ing his] own view of what the law should be in the face of the Supreme Court's contrary precedent." One study showed that Clinton-Gore appeals court judges side with criminal defendants more than twice as often as other judges. Does anyone see a pattern here?

A Clinton-Gore judge struck down the school voucher program in Cleveland. When a federal appeals court upheld a state law prohibiting state employees from accessing porn on state computers, three of the four dissenters were Clinton-Gore judges. A Clinton-Gore judge struck down a citizen initiative to impose term limits on state legislators, even after the state supreme court had upheld it. When the U.S. Court of Appeals for the Third Circuit upheld a prison sentence for a foreign drug dealer who repeatedly entered the country illegally, a Clinton-Gore judge said the sentence should be lowered to the level stated in an incorrect INS form rather than the higher sentence set by a federal statute.

One Clinton-Gore judge ruled that the First Amendment blocks prison officials from reading inmates' mail while another argued (in dissent this time) that the First Amendment prohibits a prison policy against inmates possessing sexually explicit material. A Clinton-Gore judge ruled that a double-murderer should be released from prison because a juror had driven past the house where the murder took place. In advocating more lenient rules for suing police officers, another Clinton-Gore judge so blatantly disregarded his own court's precedents that a colleague said his approach would "quickly usher in judicial anarchy."

This is the "deeper meaning" Clinton-Gore judges are breathing into the law. Mr. Gore actually said in the first presidential debate that he will use judicial appointments to enforce a political agenda. "The main issue," he said, "is whether or not the Roe vs. Wade decision [legalizing abortion] is going to be overturned." No, Mr. Gore, the main issue is whether the people or the judges will run the country. Restrained judges let the people make the law and define the culture; activist judges do it for them. Freedom itself is up for grabs in this election.

Thomas L. Jipping is director of the Free Congress Foundation's Center for Law & Democracy.

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