A critique of liberal jurists and their influence on the American political system provides a definitive strategy for consolidating conservative political power and for overcoming the liberal influence on the courts to restore core American values and the American way of life. Book available.
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Mark W. Smith is the New York Times bestselling author of The Official Handbook of the Vast Right-Wing Conspiracy: The Arguments You Need to Defeat the Loony Left. A former professor of law, he is a practicing trial attorney who is admitted to the U.S. Supreme Court Bar. He is also vice president of the New York City chapter of the Federalist Society, the nation’s most prominent conservative legal organization. Smith, a graduate of the New York University School of Law, regularly appears in the national media as a political and legal commentator. He lives in New York City, where he navigates the perils of liberalism with his trusty canine sidekick, Peanut.
From the Hardcover edition.
Part I: WHY WE LOSE
ONE: “Is This It?”
I was still in bed when the cell phone and the BlackBerry came to life. I tried to ignore the ringing and whizzing sounds and catch some more sleep, but the noise wouldn’t stop. It wasn’t just a few calls and e-mails, but a whole stream of them pouring in at once. I realized something must have happened—something big.
That “something big” became clear once I checked the BlackBerry: President George W. Bush had just announced his nominee to replace Justice Sandra Day O’Connor on the U.S. Supreme Court—his White House counsel, Harriet Miers. And as one of the urgent e-mails instructed me, I had a conference call about Miers in just moments—a call with the White House team defending the president’s pick.
Who on earth is Harriet Miers? I thought.
Only days earlier I had attended the formal swearing-in ceremony of Chief Justice John Roberts in the East Room of the White House, and through my work as an officer of the Federalist Society, the nation’s most prominent conservative legal organization, I knew the members of the White House team advising the president on Supreme Court nominations. Still, the Miers pick surprised me.
When the conference call began, I listened intently as the group, made up of reputable conservatives and led by former Republican National Committee chairman Ed Gillespie, made the case for Miers. They emphasized her loyalty to the president and her accomplishments as an attorney in Texas. But then something strange happened: They stopped talking, when it seemed they had only begun their case.
Maybe I was still groggy. I had jotted down only a few notes—generic comments about the nominee’s view that “the role of the judiciary should be limited” and her vow to “strictly apply the laws and the Constitution.” Surely there was more to say for Harriet Miers’s qualifications, a stronger case to make? I had yet to hear anything about Miers that convinced me that she was a committed conservative. I had publicly supported the Roberts nomination and expected to do the same for this one. I naturally began searching my mind for ways to phrase the case for Miers in the inevitable television debates I’d be engaged in with liberals. Then I realized, Forget the Left, what would I say to my friends on the Right about the pick? I struggled to convince myself that this was a good conservative candidate.
So finally I piped up with a question.
“Is this it?”
The point was, when you’re talking about the highest court in the land, the president must compile a formidable case for his nominee. The White House team hadn’t done it. And as I now listened to them repeat the same few talking points, it became clear—as it soon would to the rest of the conservative movement—that there really wasn’t more to the case for Harriet Miers.
I left the call unconvinced and a bit confused. After conservatives had spent years waiting for an opportunity to change the balance of the Supreme Court, was Miers really the best pick? Not at all.
And so, like many other conservatives, I breathed a sigh of relief when Miers withdrew her name from consideration and the president nominated a judge with unquestionably strong conservative credentials—Samuel Alito—in her place. A bullet dodged, perhaps. But relieved as we all were, no one on the Right should make the mistake of celebrating this near-miss as a victory for the conservative cause or for the country. We should be worried—deeply worried.
Think about it: How could someone like Harriet Miers come so close to sitting on the Supreme Court at a time when a Republican resides at 1600 Pennsylvania Avenue and the GOP solidly controls the U.S. Senate? The disturbing answer is this: The guidelines conservatives use to select judges, and the language we use to describe the role we want courts to perform, are so broad and vague as to be essentially meaningless; they apply to Miers just as much as they do to Supreme Court justices Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.
In fact, as much as I admire and respect Chief Justice Roberts and Justice Alito, I cannot celebrate their confirmations in themselves as major victories for conservatism—and neither should you. Even with Roberts, Alito, Scalia, and Thomas sitting on the Supreme Court, we have only four conservative justices out of a total of nine. And that’s at most: As conservatives have learned the hard way, supposedly conservative jurists have a way of “evolving” to the left once they ascend to the bench. That’s no accident—and you’ll see why in this book.
In any case, conservatives can’t make the mistake of believing that a mere two appointments to a single court—even to the Supreme Court—will magically fix all the problems in the courts and stop the Left’s legal assault on America. The deeply uncomfortable but undeniable truth for conservatives is one the Harriet Miers saga highlighted: We still don’t get it when it comes to the courts.
In the days after the White House conference call—even after Miers withdrew—I kept coming back to the question I had asked Ed Gillespie’s team: Is this it? Is this the way the conservative movement is going to address the courts even after being outgunned and outmaneuvered by the Left for some seventy years, ever since liberals began dominating the judiciary? Is this the strategy—mouthing platitudes about “respect for the rule of law” and “judicial restraint” and “strictly interpreting the law”?
Is this it?
Sadly, I concluded, yes, it is.
And the nation will continue to suffer if conservatives don’t come up with an entirely new—and radically different—battle plan for the courts and American law.
This book is that battle plan.
The Secret Weapon
These days conservatives rail against the courts, and with good reason. Liberals win victory after victory after victory in the judiciary—advancing a radical agenda that could never win approval in the democratic process. Consider: Today’s law permits the starving of a woman in Florida but not of a dog; permits aborting an unborn child but criminalizes the destruction of spotted-owl eggs; permits the consideration of race in law school admissions but does not allow wardens to consider the racial composition of prison gangs in making decisions about cell assignment; considers minors too immature to be executed for murder but more than capable of deciding whether to have an abortion without consulting parents; grants more legal protection to the “right” to abortion—which is mentioned nowhere in the Constitution—than to the right to property or right to bear arms, both of which are identified in the Constitution; and forbids laws banning virtual child pornography but permits federal laws criminalizing the running of political advertisements in the months leading up to a federal election.
American courts have gone so far as to increase taxes, ban nativity scenes in public parks during Christmas, mandate the approval of gay marriage, declare the recitation of the Pledge of Allegiance in public schools unconstitutional because it contains the phrase “under God,” prevent public schools from inviting clergy to give nondenominational prayers at graduation ceremonies, compel states to provide free taxpayer- funded public education to illegal immigrants, restructure election districts, resolve presidential and gubernatorial elections, and second-guess presidential decisions about how to fight a war.
And the Left continues to achieve extraordinary success in the courts even now, despite the sharp right turn the nation has taken over the past quarter century; despite Republican control of the White House, both houses of Congress, and most state legislatures and governorships; despite the fact that Republican presidents have appointed most of America’s federal judges; and despite the fact that for the past thirty years seven of the nine Supreme Court justices have been Republican appointees—something that should temper the enthusiasm of conservatives who rejoice in the mere ascension of John Roberts and Samuel Alito. Conservatives rightly recognize that what Alexander Hamilton once called the “least dangerous branch” of government has instead become the most dangerous branch.
Something is wrong here—something is very wrong.
In the popular Harry Potter books and movies, the game Quidditch revolves around the Golden Snitch—a small, winged ball that zips around the playing field. Basically, when a player captures it, the game ends and his team wins.1 The courts have become the Golden Snitch of American politics: If one party captures the courts, that team wins. The party then has the ultimate power: to strike down laws that the elected branches enact and to shape American society for years to come. And the frightening truth is that the Left has held the Golden Snitch for some seventy years, despite the Republicans’ success at the polls.
No conservative who is being honest with himself can deny how badly we’re getting beaten in the courts. The question, then, is: Why do we keep losing? How does the loony Left, discredited virtually everywhere and in countless respects, keep using the legal system to advance its radical social and political agenda seemingly at will? The conservative movement includes many sincere, intelligent, earnest representatives committed to keeping liberal judges from destroying “the land of the free and home...
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