November 12, 2003

By Doug Newman

Posted at Liberty Post, Trumpet America, The Price of Liberty
Le Chateau de Hermione, Revolution Radio and Sierra Times.

People keep telling me that, if we are to thwart the tyranny imposed by a rogue liberal judiciary, we must support President Bush and his judicial nominees. Consider the following story.

Roy Moore, chief justice of the Alabama Supreme Court, was suspended in late August for defying the order of a federal judge. Moore had placed a monument displaying the Ten Commandments in the rotunda of the state judicial building in Montgomery. Myron Thompson, a federal appeals judge with the Eleventh Circuit Court in Atlanta ordered the monument removed. Moore said “I don’t think so” to Thompson’s order and refused to remove the monument.

The First Amendment forbids Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof”. Moore, correctly, maintained that he was not Congress and he was making no law. Moreover, he was not impeding anyone's right to believe in whatever they wanted. He was merely acknowledging – by means of a monument built with private funds – the ultimate source of Alabama law and American law.

The Republicans deserted Moore en masse. Alabama Governor Bob Riley, a Republican, rejoiced that the rule of law had prevailed. The associate justices on the Alabama court – a majority of whom are Republicans – voted unanimously to suspend Moore. The Supreme Court of the United States – whereupon seven of the nine justices were nominated by Republican presidents -- rejected Moore’s appeal in the case. Perhaps the most nauseating aspect of this saga is the behavior of Alabama Attorney General William Pryor, who has been nominated by President Bush for a seat on the Eleventh Circuit.

At the time of this writing, Moore is scheduled to appear in a trial-like proceeding before a state judicial court. Several outcomes are possible. Pryor is recommending removal from office. In Pryor’s words, Moore "intentionally and publicly engaged in misconduct, and ... he remains unrepentant for his behavior...The chief justice should receive the severest penalty for his ‘sensational flouting of a valid federal injunction’.” (1)

If Pryor were a Democrat nominated for the federal bench by a Democratic president, the Republicans would be all over him like green on peas. But Pryor is a Republican, nominated by a Republican president, so he is ipso facto immune from all scrutiny. You know, like, dude, he is a Republican, so he is, like, for freedom and Christianity.

The American Center for Law and Justice -- an organization that purports to defend our religious freedom while being little more than a shill for the current administration – praises Pryor effusively.

Whenever a President nominates someone to the federal bench, we hear all kinds of highfalutin academic talk about ABA ratings, judicial temperament, etc. However, if I were a United States senator I would ask federal judicial nominees two fundamental questions.

The first was inspired by former Libertarian presidential candidate Harry Browne: can the nominee read?

The Constitution – i.e. the job description for all federal officeholders -- is not written in Finnish, Cambodian or Swahili, but in English. Can a nominee, no matter how stellar his academic credentials, comprehend that the Constitution grants federal judges no power to issue arbitrary and capricious orders such as that issued by Judge Thompson? Can a nominee read and comprehend the Tenth Amendment, which enjoins the federal government from exercising any power not expressly granted to it by the Constitution?

My second question is this: where does law come from?

Does law come from the whims and impulses of those in power? Can the order of a president or a judge have the force of law? Can government do whatever it willy-nilly pleases?

Or does law have a higher origin? Is there such a thing as natural law? (The Clarence Thomas hearings in 1991 began to broach this issue before going off on all manner of tangents about pubic hair and skin flicks.) Is there a law that is antecedent to civil government? Do people have rights given to them by God and is government’s purpose the defense of these rights?

William Pryor would fail both parts of the Little Dougie Newman Judicial Litmus Test resoundingly. Pryor obviously cannot read the First and Tenth Amendments. Moreover, as far as he is concerned, whatever a federal judge says goes.

Moore puts things this way: "Secular nations have one thing in common -- mass graves and the reason is that they believe the government is the final arbiter of right and wrong and good and evil."

For all their supposed piety, Republicans are siding with someone – Pryor -- who believes government is the source of law and are ostracizing someone – Moore – who believes God is the source of law.

Does it really matter if Republicans or Democrats pick judges and justices? Consider the record.

·         For 20 of the 22 years since Ronald Reagan took office, we have had Republican presidents and/or Republican Senate majorities.

·         For 28 of the 34 years since Richard Nixon took office, we have had Republican presidents and/or Republican senate majorities.

·         For 36 of the 50 years since Dwight Eisenhower took office, we have had Republican presidents and/or Republican Senate majorities.

The Pryor nomination is not just an isolated incident. Today we have a Republican president, a Republican Senate majority and Republican appointees filling seven of the nine Supreme Court slots. However, not one of the decisions that Republicans say they hate – decisions on abortion, school prayer, etc. -- has been overturned.

And yet Republicans – Remember: GOP stands for God’s Official Party -- still blame the long-haired, dope-smoking, maggot-infested, God-hating Democrats and their nominees for all the bad decisions that ooze out of the federal courts.

When Democrats like Bill Clinton nominate slime to the federal bench, it is the duty of Republican Senators to oppose such nominations. However, during the six of the eight Clinton years in which Republicans held a Senate majority, judicial nominations were well nigh a non-issue. While no spots on the Supreme Court came open, many district and appellate positions came open and were filled with nary a whimper from Republicans. These Republicans who rubber-stamped Clinton’s nominees are no better than Clinton himself.

While I am not going to vote for any Democrats in 2004 – I will vote Libertarian – the disreputable side of me hopes that a Democrat wins the White House. At least then those who say they believe in freedom will put up some semblance of opposition to the runaway federal government. 

For more on this story, please see this link at World Net Daily.

Permission granted to publish if you e-mail me first and if you include this hyperlink.

Freely Speaking: Essays by Doug Newman

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