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The Free Congress Commentary:
By Paul M. Weyrich
If there is the proverbial silver lining to the cloud which has been hanging over American citizens since November 7th, it is that perhaps finally the public is aware of the ultimate importance of the judiciary in this country. Whether at the state or Federal level, the courts have become the arbiters of not just what is legal or illegal but what is permitted or forbidden, even what is right and wrong. The Founders of this nation never intended this to be the case. They wanted the judiciary to interpret the law, not to make the law. It was legislative bodies, elected by the people, which were to make the laws. Then when questions arose as to what those laws meant, it was to be up to the judiciary to look at the legislative history and to interpret what it was that the legislative body which passed the law had in mind. Little by little the courts began to make laws. Some became bolder and bolder, acting without any legislative authority whatsoever. The Founders believed that if this happened, those in the executive branch and legislative branches of government would rise up and keep the judiciary in check. It hasn't happened. It hasn't happened because those in authority are only too happy to have the judges make their decisions for them. That way they can escape responsibility. They can protest mildly, but in the end they can point to the judges and blame them. The Founders of the Republic completely misunderstood how much the politicians would be pleased to escape the responsibility for which they were elected in the first place. Since we are stuck with a system now where the courts, even when good judges rule, end up with more and more responsibility because it is thrust upon them, it should be clear that citizens must pay attention to the kind of judiciary they are getting. In the case of the Federal judiciary, that means paying attention to who the President nominates and the Senate confirms. For two decades now the Free Congress Foundation has been active on this front. First it was with Supreme Court nominees. Then with nominees to the Federal Courts of Appeals and then even Federal District judges. Beginning a couple of years ago, Free Congress also began to organize a nationwide coalition of grassroots groups to whom they supplied information on judicial nominees. These groups in turn contacted their Senators and made their views known. Tom Jipping and his staff, working with Oklahoma Senator Jim Inhofe, can be proud of the record they compiled in the 106th Congress. Thanks to their combined efforts, President Clinton was prevented from naming more than 30 activist judges to the Federal judiciary. Moreover, the second session of the 106th Congress set a record for the fewest judges confirmed. And even more importantly, the balance of power in the Federal appeals courts which is very close in most circuits between liberal and conservative judges was, for the most part, preserved. This means that if there is a Bush Presidency, the stakes are very high. The newly emboldened liberal Senate will do everything it can to block "strict constructionists," or those who just interpret the law and don't try to make the law, from getting confirmed. It matters greatly the kind of people who sit on the Federal bench. George Bush recognized that and said so during his campaign. So did Al Gore in reverse. The battle over the courts, and thus over our liberties, is going to be the major war zone for the four years ahead. Let's hope the American people are paying attention to the courts now, as we suggested, because this is going to be brutal! Paul Weyrich is president of the Free Congress Foundation
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