Originally created 05/21/05

The fork in the road

Check the election map; America is becoming more conservative.

Check the number of Republicans vs. Democrats in Congress in the past 20-30 years; America is becoming more conservative.

Chart the success of conservative commentators, authors and media outlets; America is becoming more conservative.

Yet, U.S. Senate Democrats think they can reverse, or at least halt, all this by holding up President Bush's judicial nominees.

Perhaps. But not for long.

For one thing, it's the president's prerogative to choose judges. It's not Harry Reid's, or that of the Senate minority leader before him, Tom Daschle.

Moreover, Americans are becoming increasingly tired of activist judges.

And, at bottom, more conservative judges would only be in keeping with the rest of the country's move to the right. The judiciary, with its lifetime appointments, is already badly out of step.

As for activist judges, liberals try to discredit the term by saying "Any judge with whom you disagree is an activist judge." Not so. We disagree with conservative judges all the time; that doesn't make them activist.

What makes a judge an activist is a proclivity to legislate from the bench: to imagine or create rights or laws not enumerated by our Constitution and legislatures, or to rewrite the laws already on the books. Activist judges substitute their judgment for that of the people - as when they strike down laws passed by voters - and their representatives.

It really is that simple.

There is no better example of activist judges than the Massachu-setts Supreme Court, which ruled in November 2003 that neither that state's constitution nor its explicit laws nor hundreds of years of convention and common law could prevent gay marriage.

That's activism. That's not adjudicating.

The tussle over judicial nominees may be the seminal battle in an epic culture war. Liberals want courts that will rule in their favor - laws and constitutions notwithstanding. They want judges who can hand them victories that more conservative legislatures won't deliver.

Liberals like Reid try to paint down-to-earth, non-activist judges as "radicals" and "extremists" and "out of the mainstream." Reid and his cohorts have no idea where the American mainstream is.

Yet, despite a conservative-leaning America, a Republican Senate, a Republican House and a Republican president - the people's representatives, we might add - liberal Democrats think they, not the president, are entitled to name federal judges.

Of course, they have no such right.

This is an important fight. Ultimately, it's about whether our courts will go left as the country heads right. About whether judges will continue their trend of not only seeking dominance over the other two "equal" branches of government, but also supremacy over all our lives.

Think that's an exaggeration? Consider: Judges, including in Georgia, are now appointing themselves gatekeepers of constitutions; if they get their way, we may not be able to amend our constitutions without their permission.

That's frightening. Consider the constitutional crisis that arises the first time we try to limit judicial power through constitutional amendment - and the courts try to stop us. What then? Who wins - the people or the judges?

This judicial battle can't just be the Democrats' last stand. It has to be all of ours.


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