- The Washington Times - Tuesday, January 25, 2005

There is arguably no issue of greater importance to the future of the American republic than how the coming war over nominations to the federal judiciary will turn out. President Bush has upped the ante considerably and admirably by making clear his intention to appoint to the bench only those who will take the Constitution seriously and who understand that interpretation is not the same thing as making public policy. He seeks those who will be guided by the framers’ original intentions rather than the moral mood of the moment.

As if to infuriate his critics all the more, the president has indicated that Justices Clarence Thomas and Antonin Scalia — originalists, both — are his kind of judges. The very thought of more Thomases and Scalias has left the liberal apologists for judicial activism sputtering with rage and plotting further filibusters in an attempt to undermine the president’s constitutional power of appointment.

The stakes could not be higher. Will the federal courts generally, and the Supreme Court in particular, continue down the path of creating new rights out of whole cloth without any support in the Constitution itself — giving the nation such things as the right to privacy, the right to abortion and the right to homosexual sodomy — or will it be returned to the republican fold by carefully-chosen and vigorously-defended nominees who are properly committed to the idea of judicial restraint? Everyone who cares about this battle for American constitutionalism would be well advised to turn to Mark R. Levin’s new book, “Men in Black: How the Supreme Court is Destroying America.” With a scholar’s eye and an advocate’s eloquence, Mr. Levin plunges to the heart of why this is a war that simply must be won. In place of constitutional government of limited and enumerated powers, he argues, we are careening toward nothing less than “a de facto judicial tyranny.”

Not since Raoul Berger’s seminal “Government by Judiciary” has a book exposed so clearly the political dangers of ideologically freewheeling and constitutionally untethered judges being allowed — indeed, encouraged — to transform the Constitution. While most of the public’s attention focuses on abortion and gay rights, Mr. Levin shows how many other areas of our basic constitutional law have been corrupted by judges willing to supplant the intentions of the framers with their own moral predilections.

“Men in Black” surveys a broad political landscape that has come to be littered with the handiwork of justices who have forgotten their constitutional place. Here one can see how the Supreme Court has gone far beyond the right of privacy in sexual matters and has interfered with laws on everything from immigration to restricting virtual child pornography to the war on terror. One of the most helpful chapters is one that makes sense of the underlying issues in Bush v. Gore and why the Supreme Court did what it did — and why it should never do it again.

Perhaps the most important contribution of this readers’ guide to the judges’ war is the story of how we got to this unhappy place. After all, the constitutional provisions for the federal judiciary are relatively meager. The Constitution does not really create the federal judiciary as an institution but only creates the judicial power, leaving most of the institutional details — such as kinds and numbers of courts, number of justices on the Supreme Court, appellate jurisdiction and the regulation of the judicial process — to the discretion of Congress. Nor is there even any explicit provision in the Constitution for the power of judicial review itself. As Mr. Levin makes clear, this is not exactly the kind of foundation one would expect for an institution that some now insist is meant to be the moral guardian of the republic.

In part, this has come about through an unholy alliance between left-wing interest groups and the Democratic members of the United States Senate. Not being satisfied with telling the story of how those senators accommodate themselves to their well-organized ideological constituents, Mr. Levin reproduces the series of memoranda that passed back and forth during Mr. Bush’s first term, laying the groundwork for just how the Senate would exercise its power of advice and consent to block the president’s nominees to the federal bench.

The most lasting contribution of this fine book is its commitment not to conservatism but to constitutionalism, to the belief, as Alexander Hamilton put it, that the Constitution is the embodiment of “the intention of the people” and that, in the words of Chief Justice John Marshall, the idea of a written constitution was “the greatest improvement on political institutions.” This is a book that should be on the desk of every senator.

Gary L. McDowell is Tyler Haynes Professor of Leadership Studies and Political Science at the University of Richmond and is a member of the board of the Landmark Legal Foundation.

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