Men in Black, written by Mark R. Levin, is available from the FrontPage Magazine Bookstore for $27.95.
There is no vacancy on the Supreme Court, but the battle over the next nominee has already begun. Hollywood's favorite group, People for the American Way, is bragging about its new war room, equipped with dozens of computers and scores of staffers to conduct opposition research on President Bush's presumed nominees and network with grassroots organizations. Other liberal groups are conducting polling and raising funds for paid television advertising.
Conservatives must prepare for this fight, but in a way that is smarter and different from the past. The Left's approach will be to smear the candidate, whomever he or she may be. Senate Democrats will seize any sentence or phrase, uttered or written by a nominee, or something relatively minor in the person's background, which can be used to paint the nominee as extreme and unfit for confirmation. Typically, conservatives will respond by defending the nominee's honor and qualifications, with limited success. And let's face it. The mainstream media prefers reporting about the attacks rather than the defenses.
While individual nominees must be defended aggressively, conservatives must do more than simply react to the Left's tactics. They must raise the ante and use the occasion of a Supreme Court nomination to challenge the increasingly activist and unconstitutional role of the Court itself, and argue against the Left's use of the judiciary to advance an agenda that the elected branches refuse to support. Conservatives must explain to the American people that Senate Democrats want activist justices who will continue to impose their personal policy preferences on society by fiat, thereby disenfranchising them and undermining the entire notion of representative government. Conservatives must tap into the public's growing frustration with the Supreme Court's increasingly radical and elitist decisions in order to build popular opposition to it.
The best guide to this approach is a timely new book by Mark R. Levin - Men in Black, How the Supreme Court is Destroying America. In a scholarly yet readable prose, Levin makes the conservative case. He argues that the time is long overdue to strip the veneer from the façade of the Court. There have been only slightly over 100 justices in our history. They've not been imbued with more wisdom or better judgment than the rest of us. Most justices have been honorable and some have been brilliant. But certain justices have also been senile, racist, and crooked. And activist Supreme Courts have given their imprimatur to such appalling injustices as slavery, segregation, and the internment of 110,000 Japanese Americans. In this context, Levin points out, it is difficult to defend the concession of power and moral superiority by the representative branches to the Court.
Levin showcases the justices' policymaking adventures with a litany of decisions wholly divorced from the Constitution. For example, the Court has ruled that cyberspace child pornography is protected free speech, but certain broadcast advertisements run prior to an election are not. Nazis marching in a predominantly Jewish neighborhood is sanctioned by the First Amendment, but not demonstrations in front of abortion clinics.
The Court has decided that non-citizens have a right to compete for civil servant jobs, be members of the bar, and receive state benefits regardless of residency requirements. And illegal immigrants have a constitutional right to public education.
The justices recently conferred due process rights on al-Qaeda and Taliban detainees, granting them access to courts, lawyers, and presumably classified information. They've held that diversity in a classroom is mandated by the Constitution. And the Court has removed virtually all religious symbols from public places.
Most recently, Levin writes, five current activist justices have announced that, when they see fit, they'll use foreign law and foreign court rulings as guideposts to making their decisions, a repudiation of the constitution's mandates and limitations, and rejection of popular sovereignty.
When the inevitable vacancy opens on the Supreme Court, conservatives would do well to not only defend individual nominees, but argue against government by judicial decree. And all Americans would do well to read Levin's book.
Editorial Note: Rush Limbaugh wrote the introduction to Men in Black. Men in Black, written by Mark R. Levin, is available from the FrontPage Magazine Bookstore for $27.95.