- The Washington Times - Thursday, October 7, 2004

After his largely stylistic victory in last week’s presidential debate on foreign policy, Sen. John Kerry inadvertently reminded Americans of an imminent domestic threat to our system of government.

According to the Chicago Tribune, a pumped-up Mr. Kerry told a postdebate rally in Miami: “I’ll tell you, if you just needed three words of motivation, you want ‘em? The… Supreme… Court.”

Truer words were never spoken. The issue of the Supreme Court ought to drive everyone who believes this nation ought to be governed by the Constitution as written and ratified to go to the polls Nov. 2 — to defeat John Kerry.

If Mr. Kerry is elected, constitutionalists will almost certainly lose the court for another generation. Liberal activists are likely to secure supermajority control of what is now the most powerful branch of the federal government. An opportunity that advocates of limited government have worked three decades to bring about — a chance to finally curb the abuses of the power-hungry high court — will be squandered.

“All reliable sources indicate that there will be between one and three retirements [among the justices] over the next four years, so everything we’ve seen happen for this first term for [President] Bush has been the warm-up round for the Supreme Court,” Sen. John Cornyn, Texas Republican, a member of the Judiciary Committee, told The Washington Times this week.

But Mr. Cornyn may have underestimated the number of potential retirees. Justice John Paul Stevens, a liberal appointed by President Ford, is 84. Chief Justice William Rehnquist, a conservative first appointed by President Nixon and then elevated to chief justice by President Reagan, just turned 80. Sandra Day O’Connor, a Reagan appointee who often votes with the liberals, is 74. Ruth Bader Ginsburg, a Clinton appointee who anchors the court’s left, is 71. At 56, Clarence Thomas, a conservative, is the only justice under 65.

This court — whose members have not changed in a decade — is narrowly divided on issues that cut to the core of American culture. Since January 2000, it has voted 5-4 to overturn an act of Congress designed to protect children from pornography on cable TV; to prevent New Jersey from forcing the Boy Scouts to have homosexual scoutmasters; to declare a Nebraska ban on partial-birth abortion a violation of the “right” to privacy; to rule public funds can be used for tuition vouchers at religious schools; to back the University of Michigan law school in using race as a factor in admissions; and to allow the government restriction of pre-election political speech.

Last year, the court voted 6-3 that same-sex sodomy is a “right.” This year, it voted 5-3 not to decide — for now — whether public school children can say “under God” in the Pledge of Allegiance.

Our moral culture hangs by a single vote in this divided court. But so, too, does our political culture. It is not only what will be decided but who will decide. Will Americans make their own laws and decide their own destiny through the ballot box? Or will arrogant, unelected, liberal judges do it for them?

Mr. Kerry is for government by unelected liberal judges. His record is uncharacteristically consistent here. He has only flip-flopped once on Supreme Court justices.

As a freshman senator representing a state with a large Italian-American population, Mr. Kerry joined a unanimous vote to confirm Antonin Scalia, the first Italian-American ever nominated to the Supreme Court. But on May 19 this year, Mr. Kerry told the Associated Press he regrets supporting Justice Scalia: “If you’re looking for me to admit that I made a mistake in my years in the Senate, there you go — there’s one.”

Meanwhile, Mr. Kerry voted against confirming Justice Rehnquist as chief justice, and against Robert Bork and Clarence Thomas as associate justices. More recently, he even voted to block up-or-down votes on Texas Supreme Court Justice Priscilla Owen and Miguel Estrada, constitutionalists President Bush nominated as federal appeals judges.

“I believe that a woman’s right to choose is a constitutional right,” Mr. Kerry said in May. “I will not appoint anyone to the Supreme Court who will undo that right.” This litmus test really means Mr. Kerry wants justices who embrace the two unstated premises of Roe vs. Wade: The Supreme Court can act as a national legislature that can never be vetoed, and when it does it must advance the liberal agenda.

Elect Mr. Kerry and that liberal agenda will keep advancing not only for the next four years, and not only when it can muster a narrow majority on a divided court, but for as long as the justices Mr. Kerry appoints serve out their lifelong terms.

Terence P. Jeffrey is a nationally syndicated columnist.

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