Tuesday, March 28, 2006

The Founders and the judiciary

Though I like retired Judge Charles Pickering and think he got a raw deal from Senate Democrats, I disagree with a couple of his pronouncements (“Bench repair,” Commentary, Sunday).

First, he asserts, “If Democrats think some Republicans won’t use the same tactics as those used by Sens. [Edward M.] Kennedy, Charles Schumer and Dick Durbin the next time a Democrat is in the White House, they have to be living in fantasyland.”

We have a historical precedent on this issue. President Clinton’s nomination of Ruth Bader Ginsburg and Stephen G. Breyer came after the Robert Bork and Clarence Thomas hearings. Republicans could have justified treating the Clinton appointees harshly. Nevertheless, they took the high road, and the former American Civil Liberties Union counsel (Judge Ginsburg) and staff attorney to Mr. Kennedy (Judge Breyer) sailed through the Senate.

Also, though Mr. Pickering is correct to point out that “• ur Founders never intended the judiciary to be political” — confirmed by the fact that they are given life tenure — the process of selecting federal judges was explicitly made political by having the president nominate the candidates with the “advice and consent” of the Senate.

Finally, if there were not enough votes for cloture of a filibuster, what makes Mr. Pickering think his constitutional amendment has a chance?


Los Angeles

For the record

I appreciate The Washington Times printing a review of my new book, “Attention Deficit Democracy” (“Finding American voters wanting?” Books, Sunday). The reviewer states that “what Mr. Bovard leaves out is that these Founding fathers were suspicious of untrammelled democracy itself.”

I am perplexed by this comment, since the book is chock-full of references to how the Founding Fathers sought to restrict government power in all forms:

• “The Founding Fathers did not share the contemporary adoration of democracy. The word ‘democracy’ was mentioned only twice in annual State of the Union messages between 1789 and 1900. But the word was invoked 189 times between 1901 and 2000” (page 231).

• “The Founding Fathers did not design a ‘Great Leader’ democracy. The ultimate principle of the American system of government is strict limits on the power of all branches of the federal government” (page 8).

• “The Founding Fathers issued warning after warning of the inherent danger of government power. John Adams wrote in 1772: ‘There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty’ ” (page 150).

• “The Founding Fathers believed that freedom would always be in danger from power — that there would always be politicians and tyrants and tyrant assistants conspiring against freedom” (page 204).

• “The Founding Fathers sought to craft a structure in which government would be forever subservient to the law. If the rulers are above the law, then law becomes merely a tool of oppression, not a bulwark of the rights of the people” (page 247).

The reviewer offered my “discussion of the president’s failed ‘moral lens’ ” as an example of the book’s “ad hominem arguments.” But the discussion of “moral lens” was in reference not to President Bush, but to passive intellectual obedience (after a discussion of the doctrine of passive obedience and the English Civil War). Here is the context:

“Passive intellectual obedience means preemptively quieting one’s doubts about the statements of one’s rulers. It means abstaining from any conscious effort to evaluate the honesty or believability of official statements… It means viewing political (and all other) reality through a moral lens supplied by one’s rulers” (page 167).

Such passive obedience is fatal to individual liberty, regardless of the form of government or the name of the ruler.



Immigration foolishness — redux

With reference to the article “Panel still split on guest workers” (Page 1, Monday), the Senate debate on immigration may well determine the future of the middle class in America.

The last major immigration legislation, in 1986, included an amnesty provision for more than 3 million illegal aliens residing in the United States. This has resulted in up to 20 million illegal aliens here today. The trade-off to amnesty was increased border security and a crackdown on employers who hired illegals. Neither of those proposals was ever fully implemented.

Now many of the same senators who fooled us before are trying to sell the same “snake-oil” remedy. They fooled us before, and we would be remiss if we allowed them to fool us now. We must demand sure-fire implementation of border security and provisions that ensure that only workers with legitimate Social Security cards are hired before we apply some form of limited guest-worker plan.

We have waited 20 years for effective border security. We have legitimate security concerns, and we should not rush to implement a guest-worker program that would permanently open our borders to aliens. We have plenty of workers living here who will take entry-level jobs that pay a decent wage.

The open-borders bunch fooled us in 1986; shame on them. If we allow them to fool us again, shame on us.


San Diego

Intolerable cruelty

Though it is fortunate that an immediate crisis has been defused by the dismissal of charges against the Afghan man who committed the “crime” of converting to Christianity, it is clear that the bigger problem — the anti-Christian fervor that enabled charges to be brought in the first place — has not been resolved (“Afghan convert released from jail,” Page 1, yesterday).

Under intense pressure from the civilized nations of the world, Afghan authorities dropped the charges not because they realized the folly and outrage of charging someone with a violation of law for choosing to adhere to a non-state religion, but based upon “substantial evidentiary problems” and questions about the man’s mental state.

Since the charges were dropped, rallies have occurred that have featured chants of “Death to Christians,” and several clerics have suggested that they will incite their followers to murder the man. One would be hard-pressed, then, to consider that the Afghan people at large somehow have become an enlightened, tolerant bunch.

President Bush is going to be pressed to explain why we are sacrificing valiant soldiers and spending hundreds of billions of dollars if it is concluded that we simply are trading one form of extremist tyranny for another.


Upper Saint Clair, Pa.

Loopholes on the left

Conservatives need to learn. The Democrats have been exploiting vulnerabilities for six years and locking up Republican initiatives. Sen. Edward M. Kennedy’s loophole is a perfect candidate for asymmetrically guarding national security while exploiting the relativism of the left (“Teddy’s terrorist loophole,” Op-Ed, Monday).

Because it involves U.S. national security interests, terror should be defined and excluded by the United States. Therefore, anyone on the U.S. terror list should be excluded from obtaining a visa. This would still leave an opening for self-determination as defined by democratic standards.


Peyton, Colo.

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