PARISI: Silence of the candidates

GOP hopefuls overlook issue of judicial overreach

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Call it the political equivalent of unilateral disarmament.

It’s when Republicans - maddeningly, mystifyingly - take a perfectly good campaign weapon off the table (or perhaps never put it on the table to begin with). Election cycle after election cycle, it happens.

It is anyone’s guess why this should be the case when - to paraphrase Rahm Emanuel - Democrats would never let a good weapon go to waste. But some of the blame clearly lies with the egregiously overpaid K Street campaign consultants, who wouldn’t know a good weapon if it was handed to them on a silver platter, as it has been again this cycle.

How is it, with less than a week to go before key midterm elections, that no one among the legions of Republican campaign operatives - or the candidates they advise, for that matter - has seized upon out-of-control federal judges as a wedge issue in this election cycle, even in the face of a series of unelected jurists taking it upon themselves to declare unconstitutional a state’s immigration law and its voter-ID law, the military’s “don’t ask, don’t tell” policy on gays in the military, the Defense of Marriage Act (DOMA) and even a state constitutional amendment barring gay marriage?

Yes, “it’s the economy, stupid” - especially given how President Obama and his congressional Democratic allies are driving the economy off the cliff a la “Thelma & Louise” and leaving trillions in debt to the next generation and beyond - but surely candidates can multitask, can’t they?

If Democrats can seek to make an issue - albeit, a feeble one - of the Supreme Court’s Citizens United decision on campaign-finance laws, aren’t these matters far more important to our body politic and governance?

In California, for example, why has Republican gubernatorial hopeful Meg Whitman not made more of an issue of the fact that a judicial despot, U.S. District Judge Vaughn Walker, took it upon himself to declare null and void a state constitutional amendment voted for by 7 million Californians, effectively disenfranchising them in the process?

And why hasn’t Mrs. Whitman taken her opponent, state Attorney General Jerry Brown, more to task for refusing to defend that voter-approved law in court, when it’s duly part of his job as the state’s top lawman to defend the laws of the state as enacted by the people and/or their elected representatives? Mr. Brown was clearly derelict in his duties in that regard, and yet thinks he deserves to be promoted to governor.

Judge Walker is a 1989 appointee of President George H.W. Bush, but that should not exempt him from criticism by Republicans on the campaign trail.

(As an aside, the failure of the defendants in this case, heard in San Francisco of all places, to petition for a change of venue, and for a different jurist, given Judge Walker’s long history of pro-gay rulings, was a strategic blunder of biblical proportions. I still have not been able to get any explanation, satisfactory or otherwise, for that from one of the litigants, the conservative Alliance Defense Fund.)

Meanwhile, another California-based federal judge, Virginia A. Phillips, disguised as a military expert, in early September declared that “don’t ask, don’t tell” didn’t pass her judicial smell test. Two months earlier, Judge Joseph Tauro, ruling in July from Boston, declared that another congressionally enacted statute, the Defense of Marriage Act, likewise failed his “fairness” litmus test. Both of these rulings are being appealed, albeit halfheartedly, by the Obama Justice Department.

Again proving that autocratic tendencies among federal judges are bipartisan, Judge Phillips is a 1999 appointee of President Clinton, while Judge Tauro is a 1972 Nixon nominee.

The roots of all these cases is less about gay rights than about judicial overreach, and that’s how they should be framed by Republicans as issues for the last several days of the 2010 campaign season. It isn’t necessary to engage in gay-bashing to make the case on the campaign trail that these are issues that should be settled by the voters and their elected representatives, not by our black-robed masters.

It should be framed as an issue of (lowercase-r) republican representative government and as 10th Amendment powers reserved for the states, and watch (uppercase-D) Democrats squirm as they try to defend the inherently (lowercase-d) undemocratic nature of government of the liberal judges and by the liberal judges.

Iowa is one of those rare states where it has become an election issue, as a result of that state Supreme Court’s April 2009 fiat legalizing gay marriage. Because Iowa state justices are subject to retention referendums, three of the seven are up this year and face likely ouster at the hands of the state’s voters next week - in much the same fashion as California state Supreme Court Chief Justice Rose Bird and two of her fellow liberal judges, who were booted from the bench by Golden State voters in 1986.

Likewise, other than in Arizona itself, I’m not aware of anywhere that the judicial diktat by federal Judge Susan Bolton, a 2000 appointee of Mr. Clinton, invalidating major provisions of the state’s immigration law, has become a campaign issue. Nor has a Tuesday federal appeals court ruling, by two Republican-appointed judges, invalidating Arizona’s requirement that would-be voters prove citizenship before registering.

As in California and now Iowa, the answer appears to lie in a constitutional amendment for term limits for federal judges. Where are the chronically clueless Republican campaign consultants urging their clients to advocate that?

Peter J. Parisi is an editor at The Washington Times.

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