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Bush and Kerry
Both Wrong on Judges

Dennis Fox

October 19, 2004


A president's appointments to the federal judiciary can do more long-lasting harm to the American people than just about anything else they do short of initiating global self-destruction. As a report two weeks ago by the Environmental Law Institute reiterated, President George W. Bush's judicial appointees take a markedly different stance on environmental regulation than judges appointed by Democrats. That surprises no one, despite the common civics lesson that judges are just supposed to follow the law.

Perhaps because potential judicial appointments interest so many people, both candidates' explanations of how they would pick judges are misleadingly simplistic. If you believe what Bush and Senator John Kerry tell us, even they think judges are just supposed to follow the law. You have to read between the lines to discover neither one really means it.

During the second presidential debate, Bush gave this confused but conventional explanation:

I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.... I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

[I'm omitting here Bush's garbled discussion of the Dred Scott decision, which ignored entirely the Constitution's explicit allowance of slavery]

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.... And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

Bush's account at least has the virtue of letting us know he, too, sat through civics class.

Kerry countered by saying Bush came into office declaring:

"What we need are some good conservative judges on the courts." And he said also that his two favorite justices are Justice Scalia and Justice Thomas.

But although Kerry claimed "I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I don't believe we need a good judge of that kind of definition on either side," he went on to deliver what most would consider a liberal agenda:

The future of things that matter to you -- in terms of civil rights, what kind of Justice Department you'll have, whether we'll enforce the law. Will we have equal opportunity? Will women's rights be protected? Will we have equal pay for women, which is going backwards? Will a woman's right to choose be protected? These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law.

In the third debate, after noting Bush ducked a question about whether he wants to overturn the Roe v. Wade decision guaranteeing a woman's right to an abortion, Kerry added this:

I'm not going to appoint a judge to the Court who's going to undo a constitutional right, whether it's the First Amendment, or the Fifth Amendment, or some other right that's given under our courts today -- under the Constitution. And I believe that the right of choice is a constitutional right.

We're left with two candidates both insisting they'd appoint judges who would interpret the Constitution according to law without political bias or personal opinion. Yet somehow both already know what those interpretations should be: Bush knows a law-abiding judge won't remove "under God" from the Pledge of Allegiance, ignoring the possibility that some law-abiding judge might think Congress's 1950s insertion of "under God" into the pledge was impermissible entanglement of state and religion. Kerry says no law-abiding judge could overturn Roe v. Wade's constitutional precedent, ignoring the fact that Supreme Court justices often overturn precedent and minimizing the distinction between constitutional amendment and judicial ruling.

We can figure out from all this what kind of judges each would appoint, but it would be more honest for them simply to say they'll appoint judges likely to agree with their own approach to resolving controversial issues. And that's just as it should be.

Bush's appreciation for Justices Scalia and Thomas helps us understand how much he really wants to bring the United States into the 19th Century. Kerry prefers the 21st, but should drop the pretense that he just wants judges who'll interpret the law. As the former prosecutor surely knows, law is politics by other means. Many of the legal rights we have today became constitutionally protected only after pressure on legislators and judges by mass movements for social justice. Kerry should embrace that history rather than make believe it's irrelevant.

We have further to go, regardless of who wins the election. At a time when even John Kerry voted for George Bush's Patriot Act, whether our rights ultimately expand or disappear depends more on our own efforts than it does on theirs.

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