While
it is always tempting to write about John Kerry's multiple personality disorder
on Iraq, I will address instead his statements in the second debate on the role
of the judiciary and abortion.
Kerry first mocked President Bush for promising
to appoint judges who would strictly interpret the Constitution ("originalists"),
saying that early in his term Bush said we need "good conservative judges" and
that his favorite judges were Clarence Thomas and Antonin Scalia.
Kerry's
intent was to depict President Bush as one who would politicize the courts --
something Kerry has been doing for years. But President Bush's statements are
not inconsistent. People often refer to originalist judges as conservatives because
most the judicial activism in the past 50 years has emanated from the Left.
Since
conservatives abhor judicial activism, it is no accident that most "originalist"
judges are conservatives -- though they don't believe in "legislating" their ideology
from the bench.
Liberals like Kerry don't seem to be able to grasp the distinction.
They believe that justices like Thomas and Scalia, by wanting to restore the Constitution
to its originally intended meaning, are engaging in judicial activism merely when
they vote to roll back judicial legislation proceeding from liberal activist judges.
To
be sure Justices Scalia and Thomas are conservatives, but they are first and foremost
originalists. They do not view the judiciary as a third policy-making branch.
In fact, even on the abortion question the most any originalist judge would do
is reverse Roe v. Wade. Such a reversal would not automatically outlaw abortion.
It would return the question to state legislatures, who would determine the matter
pursuant to democratic (legislative) -- not judicial, processes.
After fraudulently
characterizing the president's position, Kerry fraudulently characterized his
own. He said, "I don't believe we need a good conservative judge, and I don't
believe we need a good liberal judge."
Kerry said he would appoint judges
who would protect a woman's right to "choose." "These are constitutional rights,
and I want to make sure we have judges who interpret the Constitution of the United
States according to law."
But Kerry knows the right to "choose" is only
a "constitutional right" because an activist court wrote it into the Constitution
in 1973. If that Court had applied the principles of constitutional interpretation
Kerry is now paying lip service to, Roe v. Wade would have been decided differently.
It is completely disingenuous for Kerry to say that he is an originalist because
he would appoint judges who would protect rights grafted into the Constitution
by activist judges.
Besides, Kerry has been all over this issue as well.
He voted to confirm Justice Scalia in 1986, saying, "I support him not because
he is liberal or conservative, but because he is a legal scholar of distinction,
principle and of integrity."
Then for the next decade and a half Kerry voted
against originalist judges, such as Robert Bork. He applied a de facto litmus
test against judges believed to be pro-life, irrespective of whether they would
have rolled back Roe v. Wade. Yet during the primary campaign he explicitly denied
that he would apply a pro-choice litmus test.
This is just another one of
Kerry's specious distinctions without a difference. He would vote only to confirm
those justices who would uphold Roe v. Wade (and even partial birth abortion),
but would not apply a litmus test? Empty words, signifying nothing.
Even
more disturbing was Kerry's repeated assertion that life begins at conception
but it's not his place to legislate his moral beliefs on the rest of the nation.
"But as a president, I have to represent all the people in the nation."
Does
this mean we can't pass laws against murder, stealing, rape, slavery or pedophilia,
because they are grounded in morality -- or because not everyone -- every last
one -- agrees?
No, and we couldn't define marriage as between a man and
a woman or expand it to include same-sex unions for that matter. Both positions
are based on morality. Essentially, under Senator Kerry's incoherent formulation,
we'd almost have to settle for anarchy -- no laws at all.
But don't worry.
Kerry doesn't believe that. He believes in laws based on morality -- his version
of it -- or that of his supporters. And while his positions on judicial appointment
and abortion seem as discombobulated as his policies on Iraq, he knows where he
stands. He just can't always afford to tell us.
But be assured of this:
He most certainly would appoint unabashed judicial activists of a politically
liberal stripe who are personally pro-choice and would continue to protect abortion
as a constitutional right (privacy). Anything he says to the contrary is smoke
and mirrors.
All pages copyright David
Limbaugh 1994-2004
