The Fallacy of Voting Republican to Attain a Conservative Supreme Court

Silly season, a.k.a. Election 2012, is now in the history books. Voting irregularities aside, Barack Obama managed to convince enough of the electorate that his vision of monstrously intrusive government, in areas foreign and domestic, was an acceptable enough policy to warrant him a second term.

As can be expected, this has resulted in a nonstop litany of woe from Christians, both evangelical and Reformed. Ostensibly, they are bewailing the chaos that awaits the United States over the next four years, which would be perfectly understandable. Unfortunately, as can also be expected, their lamentations have taken the predictable form of eulogizing “their” Republican party and “their” golden child, Mitt Romney. The excuses and apologies have come in a steady stream: “He is a good man of impeccable moral character!”, “He’s a successful businessman who knows how to create jobs!”, “He has really, really nice hair!”, and so on and so forth. Occasionally, a more grudging excuse will manifest itself: “Well, he’s not perfect, but he was our last chance to save ourselves from going over the cliff” or “I don’t like it that he’s a Mormon, but he is still the lesser of two evils.” Either way, though, the lesson is obvious: your garden-variety Judeo-Churchian is a party hack at heart, and he will look for any possible reason to vote his county, state, and country as Red as he can.

Yet, there is another argument made in favor of the GOP, and it isn’t so easy to dismiss out of hand. Some Christians will readily admit that Romney, Boehner in the House, and McConnell in the Senate are at their core no different from Democrats. However, their eyes are focused on the Supreme Court. They point out that Ruth Bader Ginsburg definitely will be retiring before much longer and another vacancy could also very likely appear on the Court during that time. Wouldn’t it be better to have a president and Congress in place that would pick and confirm more conservative justices? How else will Roe v. Wade ever be overturned? Mitt Romney isn’t the most conservative Republican himself, but who cares? Didn’t George H. W. Bush, of Skull and Bones and “New World Order speech” fame, nominate that alleged pillar of the right, Clarence Thomas, and get him successfully confirmed? Finally, this is strategic, long-term, “big picture” kind of planning, isn’t it? Doesn’t this warrant placing the listeners of contemporary Christian music and the readers of David Bahnsen’s blog in the same category as Machiavelli?

Not bloody likely. What constitutes this great court in which so many Christians have put their faith? And why is this now considered the primary hill to fight and die on? To answer that, a little historical background is in order first.

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Beginning in the 1930s, with such dyed-in-the-wool statist justices as Louis Brandeis, Benjamin Cardozo, and Hugo Black leading the way, the Supreme Court of the United States took on a much more aggressive tone in favor of federal centralization. This trend only escalated during the Second World War and the Korean War until, in 1953, it reached a crescendo with the appointment of Earl Warren as Chief Justice. For the next sixteen years, the Warren Court would do everything in its power to infringe upon state rights, from its landmark Brown vs. Board of Education, which forced desegregation on an unwilling white populace, to Loving vs. Virginia, which attempted to eradicate the states’ anti-miscegenation laws. Beyond a shadow of a doubt, Earl and his merry pranksters were on a mission and white Christians, especially in the South, resented it. Chief Justice Warren Burger’s 1969 confirmation brought no respite, either. His tenure brought about the pro-busing Swann v. Charlotte-Mecklenburg Board of Education decision in 1971, the capital-punishment-abolishing Furman v. Georgia in 1972, and the abortion-venerating Roe v. Wade in 1973. Even such seeming victories as Regents of the University of California v. Bakke in 1978, which ruled racial quotas in universities unconstitutional, were diluted by confused and often contradictory dissenting opinions which bode ill for future rulings. Conservatives of a statist bent were in a tizzy, fretting that they would never be able to gain back their liberty through the fiat of a benevolent government.

Then a certain B-grade actor took over the Oval Office in 1981, and these same statist conservatives began to think Utopia-on-the-Potomac was possible.

Flash forward to 1987. Associate Justice Lewis Powell calls it a career. The Religious “Rite” awaits President Reagan’s replacement pick with bated breath, and they have reason to be optimistic. They have been reasonably pleased with Reagan’s first pick, Sandra Day O’Connor – particularly since she fulfilled the important cultural Marxist milestone of being the Court’s first female justice – and his second pick, Antonin Scalia, looks even better to them. Finally, the choice is announced: Robert Bork. The RR does an insanely happy jig like an old prospector who just found the mother lode.

Bork, you see, vehemently opposes “legislating from the bench.” He has coined the now-famous saying, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.” He has severely criticized the Warren Court for engaging in judicial activism. He is considered one of the rejuvenating forces behind the judicial principle of “originalism” – a “back to the founding fathers’ intent” movement. He has served as Richard Nixon’s solicitor general. He is married to a former nun and, perhaps significantly, will convert to Catholicism himself in 2003 – that seeming to be the mandatory faith among the Court’s “con”servative wing. Finally, he is also a founding member of the Federalist Society (more on that later). What all of this ultimately means is open to interpretation, but it sure makes for good copy in the National Review.

What follows is a confirmation hearing that would warrant a “FOX NEWS ALERT!!!!” every five minutes were it taking place today. Feminist and pro-abortion groups rally the troops and open their checkbooks to fund anti-Bork protests. Ted Kennedy delivers a bombastic diatribe in the style only his family can deliver: a polemic filled with references to the various things Bork’s America would bring about: “back alley abortions,” “blacks sitting at segregated lunch counters,” “no teaching of evolution,” and the like.¹ Gregory Peck does an anti-Bork TV ad. Bork’s video rentals are discussed in depth. His momentum loses steam faster than Jimmy Swaggart loses his pants. Finally, the vote takes place. Bork is defeated, with a sizable bloc of Republicans voting against him as well.

Having been titillated by the entire media spectacle, Christians are devastated. They remain so when Reagan’s second nominee for the bench, Douglas Ginsburg (the first Jew nominated for the bench since 1965 – bonus Zionist points!), is forced to withdraw before his hearings due to allegations of past marijuana use. The seat would finally be filled by Anthony Kennedy early in 1988.

From this time forward, the Supreme Court would become ever more of an obsession among Christians, who convinced themselves that putting “their” side into the judiciary would ensure that the policies of their favorite presidents would be carried on indefinitely. These feelings only intensified in 1991, when another Senate brouhaha erupted, this time over Clarence Thomas. Despite all the salacious details regarding his affair with Anita Hill (degenerating into stories about pubic hairs being placed on Coke cans at one point), Thomas was successfully confirmed. The evangelical right had won a victory and was elated. They also relished in Thomas’s being a Negro, meaning that they weren’t racist, either. (Thomas’s comment about being forced to undergo a “high-tech lynching” had set a lot of white guilt in motion.) A future strategic template was set, and it continues on to the present time.

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For the past twenty-five years, then, Christians have been conditioned to defend Republican Supreme Court nominees with the fervor that Charles Martel once showed defending Tours from the invading Muslim hordes. In this writer’s humble opinion, that effort could be put to far, far more productive uses, such as tending a garden, raising a family, or recycling the air in their car tires. One only needs to stop and consider the futility of the entire exercise.

The first and most obvious fallacy is that, records of rulings and the vetting process notwithstanding, ferreting out any “con”servative justice is always a crapshoot at best. Justices like the Ford-picked John Paul Stevens and the Bush-picked David Souter often begin their careers on the Court as “strict constructionists,” but moderate their views so radically as to wind up siding with the Court’s liberal wing. Should such a justice decide that a Supreme Paycheck agrees with him well enough for a nice long career, as in the case of Stevens’s thirty-five year tenure, the situation is made all the worse. We have witnessed just such a flip-flop this year. Ruling on the fate of Obamacare, Chief Justice John Roberts, a George W. Bush nominee, broke ranks with the Court’s conservative bloc and upheld legislation that required individuals to purchase health insurance, reasoning that this fell within the Congress’s constitutional authority to levy taxes. Thus, the health mandate’s supporters had a five-to-four majority on the Court, and the bill was upheld. A “con”servative judge paved the way for ever-more encroaching socialism. Who knows what other tricks he has hidden up his black sleeve for the future? A future that could be very, very long, as Justice Roberts is still a relatively young man?

“Well,” says your friend in the “I Was Red State Before It Was Cool” t-shirt with a mustard stain on it, “Roberts was a disappointment, no two ways about it. But we still have Scalia, Thomas, Alito, and sometimes Kennedy! They’re a solid conservative bunch! We need to pack the court with more such justices, then we’ll have real Constitutionalityisticismness in America again! THAT’S why I voted for Romney!”

Uh…OK. But what, precisely, makes these justices so “conservative”?

One clue can be discerned in the organization to which the bloc of Scalia, Thomas, Roberts, and Alito all belong: the Federalist Society. Increasingly, this group is becoming a popular recruiting ground for all GOP presidents.

The Society was founded in 1982 by a group that included Robert Bork and future Reagan attorney general Edwin Meese. Its goals are summarized on the “Background” section of its official website:

[T]he Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles and to further their application through its activities.²

In short, the group acts as the activist arm of the “strict constructionist” movement, whose membership is especially prone to making an idol out of the Constitution. This activist role is further spelled out at the end of the section:

[T]he Federalist Society provides opportunities for effective participation in the public policy process. The Society’s ongoing programs encourage our members to involve themselves more actively in local, state-wide, and national affairs and to contribute more productively to their communities.³

Members of the Society bemoan the “liberal activism” of the Warren and Burger courts. I do, too. Yet it’s difficult to see how their brand of activism would be any sort of improvement. A group that believes ANY state exists to preserve “freedom,” rather than to perpetuate itself by any means necessary, is immediately suspect. Moreover, its claim that it stands for a judiciary that must “say what the law is, not what it should be” rings hollow when one considers that any court will be hidebound by the curse of “precedents,” no matter how noble their intents might otherwise be. Indeed, the liberal wing of the Court has long maintained that their refusal to overturn Roe v. Wade is entirely in keeping with Constitutional principles. There is enough evil that has been allowed to be enshrined in the “rule of law” as it is that a group that swears there will be no more evil passed under its watch shouldn’t impress anyone.

Another thing that shouldn’t impress anyone is a look at the Society’s current board of directors, a rogue’s gallery of GOP hacks if there ever was one. They include:

• Chairman (and founding member) Steven Calabresi, who worked in the Reagan and Bush I administrations, was a speechwriter for Dan Quayle, and endorsed Rudy Giuliani for president in 2008⁴
• Vice chairman (and founding member) David M. McIntosh, Republican representative from Indiana from 1995 to 2001, whose claim to fame was jumping on the deregulation bandwagon that was epidemic in the Clinton years, focusing on the health and food industries⁵
• Senior vice president (and founding member) Lee Liberman Otis, former chairman of Yale University’s “Party of the Right”⁶
• C. Boyden Gray, former legal counsel for Presidents George H. W. Bush and George W. Bush, and co-chairman (with Dick Armey) of the Koch Brothers-financed FreedomWorks. He also briefly served as a clerk for Earl Warren at the beginning of his career⁷
• Michael Mukasey, Jewish former attorney general for George W. Bush, champion of the Patriot Act, wiretapping, and waterboarding, and an avid supporter of both Rudy Giuliani and Joe Lieberman⁸

Does this sound like a roster of allies to you?

Even more off-putting is the website’s “What People Are Saying” section. Among the expected platitudes from such typical sources as Ronald Reagan, Dick Cheney, and Richard Thornburgh, we come across the following laudation from Alan Dershowitz (!!!):

It is a great pleasure for me to be in front of the Federalist Society. I am a tremendous admirer of this organization. I agree completely that it has served an enormously valuable function, in getting the debate going about the meaning of the constitution. The fact that there are two sides to the debate is evidenced by my presence here, today, but your contribution to stimulating a debate, to getting us on the other side to think more clearly about our issues, and to presenting to the American public issues…has performed an enormously useful function.⁹

Dershowitz, of course, is infamous for calling for the complete and utter suppression of any organization that does not toe his Zionist line to a T. The fact that he identifies as a “tremendous admirer” of the Society therefore speaks volumes.

If the Society’s website offers no solace, neither does one of the group’s rallying cries: “energy in the executive!” Rather an odd cry for the judiciary to be taking up, but hey, Republican presidents seem to dig it. The phrase comes from The Federalist Papers, No. 70, “The Executive Department Further Considered,” written by the centralization guru Alexander Hamilton:

Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.¹⁰

Such a philosophy of government has obvious appeal to any president looking to free himself from the dictates of Congress and to rule as a king. As Paul Craig Roberts has put it:

The battle cry of the Federalist Society is “energy in the executive.” The society has its origin in Republican frustrations from the days when Republicans had a “lock on the presidency,” but had their agenda blocked by a Democratic Congress. The Federalist Society set about producing rationales for elevating the powers of the executive in order to evade the checks and balances the Founding Fathers wrote into the political system.¹¹

So much for the Society’s commitment to preserving the separation of governmental powers. It’s hardly surprising, though. If racial integrationists had such a problem with the “separate but equal” provisions of the Jim Crow laws, why shouldn’t governmental integrationists feel the same way about the various branches?

The Court’s “rite” wing, in their actions, have proven that they have taken this tenet very much to heart, both on and off the bench. Some examples:

• In 2006, a screenwriter sent out a hypothetical scenario in which Maine wished to secede from the union to all nine Supreme Court justices and asked their opinions on it. Antonin Scalia responded that the Civil War settled once and for all times that there is no right for any state to secede and that the Supreme Court would refuse to hear any such case that would be brought up.¹²
• Clarence Thomas has proven himself hostile to the Fourth Amendment, which prohibits unwarranted searches and seizures. He has voted with the Court to uphold drug testing on public school students involved in extracurricular activities, dissented in a case that prohibited warrantless searches when not all parties involved gave permission, and has voiced support for the concept of “in loco parentis,” which he defines as “parents delegat[ing] to teachers their authority to discipline and maintain order.”¹³
• As can be expected, Thomas toes the straight Congressional Black Caucus line in regards to blacks. On the subject of Brown v. Board of Education, he has stated, “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.”¹⁴ In a concurrence on one case, he stated that the Missouri District Court “has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority.”¹⁵
• While serving in the Reagan administration, Samuel Alito penned a 1984 memo that stated: “…top officials should not be subject to lawsuits in any circumstances, including when they knowingly violated the law.”¹⁶
• As stated before, John Roberts voted to uphold Obamacare.
• Scalia is well-known for his fondness for the Babylonian Talmud. He has corresponded with several Chabad Lubavitch rabbis on the topic, freely admitting to one his “fascination with Jewish law.”¹⁷ In the Caperton v. A. T. Massey Coal Co. Supreme Court case of 2009, Scalia favorably quoted a Talmudic maxim and saw fit to further describe it as a “divinely inspired text.”¹⁸

The list could go on and on. Does this sound like a group that would dare to overthrow any provision in the Patriot Act, should that case ever reach their level? Do you trust them to do the right thing on Roe v. Wade? It’s mighty hard to read anything but the Talmud in this quote from Scalia, taken from a 60 Minutes interview:

You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.¹⁹

Psychology is not my favorite field, but it’s difficult not to read a Freudian slip into that statement. Scalia reveals his true nature.

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As we can see, the hope of obtaining biblically-oriented Supreme Court justices is exceptionally slight, given the current crop of “con”servatively indoctrinated lawyers to choose from.

This behooves us to ask a much more fundamental question, though: why is this an issue for Christians at all?

Why are we wasting precious time and resources trying to get a heathen court stacked in our favor?

There can be little doubt that the high courts of man serve as a blasphemous parody of the judgeships God Himself ordained as His preferred government for biblical Israel. The purpose behind this can be found in Judges 2:16-19:

Nevertheless the Lord raised up judges, which delivered them out of the hand of those that spoiled them.

And yet they would not hearken unto their judges, but they went a whoring after other gods, and bowed themselves unto them: they turned quickly out of the way which their fathers walked in, obeying the commandments of the Lord; but they did not so.

And when the Lord raised them up judges, then the Lord was with the judge, and delivered them out of the hand of their enemies all the days of the judge: for it repented the Lord because of their groanings by reason of them that oppressed them and vexed them.

And it came to pass, when the judge was dead, that they returned, and corrupted themselves more than their fathers, in following other gods to serve them, and to bow down unto them; they ceased not from their own doings, nor from their stubborn way.

These judges were meant to be enforcers of the Lord’s laws, will, and heritage by whatever means necessary – including and especially militarily. That, needless to say, will never happen with any of the courts with which we have been cursed. Even if it were within their constitutional role, a guy like Clarence Thomas would be far, far more concerned about leading a war to make the world safe for Monsanto and/or miscegenation than he would to combat abortion. His track record, both legal and personal, speaks for itself.

What treatment can we expect from any and every court that man, in his hubris, has decided will trump God’s law? Paul lays it out very succinctly in 1 Corinthians 6:1-8:

Dare any of you, having a matter against another, go to law before the unjust, and not before the saints?

Do ye not know that the saints shall judge the world? and if the world shall be judged by you, are ye unworthy to judge the smallest matters?

Know ye not that we shall judge angels? how much more things that pertain to this life?

If then ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church.

I speak to your shame. Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren?

But brother goeth to law with brother, and that before the unbelievers.

Now therefore there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? why do ye not rather suffer yourselves to be defrauded?

Nay, ye do wrong, and defraud, and that your brethren.

A court of man is interested in your filthy lucre and nothing else. The higher the court, the higher the fee schedule will be. Sending one or two “good” judges into such a system is like sticking a needle into the manure pile and then going to recover it a couple of years later – assuming you can still find it, it will be so coated with rust and corrosion as to render it useless.

Folks, we know the entire rotten world structure is untenable, to put it mildly. We also know that if we play the world’s game on the world’s terms, the world wins. Therefore, our best strategy is to teach our own children God’s laws and the penalties that arise from breaking them. By this means, and only by this means, can we hope to build strong communities of racially homogenous, like-minded Christian volk, which are going to become ever more necessary as things collapse all around us.

The David Bahnsens in our midst will not thank us for pursuing this path. And for that I am eternally grateful.

 

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