- The Washington Times - Sunday, April 10, 2005

I think Republican Party honchos may be underestimating the grass-roots passion over the judiciary. The outrage against activist courts — and by no means all are activist — is real, growing and far from a fringe phenomenon.

Conservative activists have been patiently waiting for some action, just some evidence the Republican Party will pay more than hollow Beltway lip service to this issue. Year after year, though politicians are elected promising change, there is little evidence the promises are being fulfilled.

More and more conservatives advocate civil disobedience to what they consider extraconstitutional decisions by state and federal courts, like the Massachusetts Supreme Judicial Court’s brazen validation of same-sex “marriage.”

It is inconceivable the Massachusetts judges were unaware they acted beyond the scope of their constitutional authority by judicially rewriting the state constitution. But that doesn’t bother secular liberals, on or off the bench, because the “ends” to them are important enough to justify practically any means.

The Democratic Party has long advocated using judicial activism to effectuate liberal policies unachievable by democratic (legislative) processes. They make no apologies for their advocacy, nor do they bother to explain their hypocrisy in selectively decrying the few cases of judicial activism from the other side.

Don’t assume only fringe groups are losing patience. How long can “rule of law” conservatives sit idly by as liberal Democrats continue to break the rules with impunity? How much more must they tolerate before something is done in response to such cavalier judicial behavior as when the federal courts ignored Congress’ statute in the Terri Schiavo matter?

I realize some have difficulty with Congress (and the Florida legislature before) sticking its nose into that case through what could arguably be called special legislation. Legislatures are supposed to pass general, not special, laws.

On the other hand, a woman was being killed by order of state and public officials sworn to uphold state and federal constitutions obliged to protect innocent citizens’ lives.

The propriety (or lack thereof) of Judge George W. Greer’s decisions is one thing, assuming he exercised lawful jurisdiction. We can disagree, even be outraged, with his decision. But our criticism’s main focus probably is not his judicial activism.

But when the federal district court summarily disobeyed the congressional statute and ignored Congress’ subpoena, one has to wonder if any semblance of parity exists anymore between the judiciary and the other two branches. The courts are so sure they’re the final authority, they sometimes behave as if there is utterly no accountability — and their assessment may be more accurate than not.

Conservatives are sick and tired of hearing conservatives like me urge caution and restraint, that we have to work within the system to elect politicians who will appoint and confirm judges who will honor the Constitution and their proper role under it or have Congress rein in the courts via its Article III authority.

Indeed, I must confess I will begin to feel foolish recommending restraint if there is any truth to reports Senate Republicans will abandon the misnamed “nuclear option” for preventing Democratic filibuster of the president’s judicial appointments.

If Republicans even think about caving on this issue, they will pay a price. This is no time for fecklessness. Democrats couldn’t be more insincere when they complain that the nuclear option is designed to forestall debate or to give the president absolute power over judicial appointments.

Senate Democrats have no business blocking his appointments for political or policy reasons. A rule to prevent them from doing what neither party did in the past is not changing the rules, and it is not exercising a nuclear option.

I actually think this issue is so serious that it might, along with the immigration issue, eventually trigger an exodus of conservatives from the GOP. If those of us who advocate playing by the rules can’t even count on Republican politicians to safeguard the president’s judicial appointment power — what can we trust them to do?

If they don’t have the courage to exercise the nonnuclear, nuclear option, do you think we’ll ever again get anyone to the right of David Souter on the Supreme Court? And if we don’t, they might as well just throw in the towel on the Culture War.

This is a political hill to die on, and I pray Republican honchos wake up — soon.

David Limbaugh is a nationally syndicated columnist.

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