Jon Christian Ryter -- Revising Law in America

REVISING LAW IN AMERICA

By Jon Christian Ryter

January 21, 2006

NewsWithViews.com

The Senate Judiciary Committee hearings on Sam Alito was a high stakes political poker game that began, slowly, like a boring penny ante poker played by amateurs. Alito attempted to assure Senate Democrats that, if confirmed, he would dispense justice to rich and poor equally. "There is nothing that is more important for our Republic than the rule of law..." Although none of the liberals voiced it, Alito had inadvertently but very precisely identified the reason the liberals would attempt to derail his nomination.

The following day Sen. Herb Kohl [D-WI] would take Alito to task on that very issue. In doing so, he would identify to every American citizen watching the confirmation hearings�if they were really listening�exactly why the Democrats have fought every conservative judicial nominee since Robert Bork. And while the left would have us believe it's been over the issue of abortion, in reality its always been about putting judges on the bench who are not afraid of applying more expansive, imaginative interpretations of what the Constitution says and what our laws mean as we adjust to the new realities of the world as a global community.

"Judge Alito," he began, "we heard a lot of discussion yesterday about the proper role of the judge in our system. Some said that a judge should favor neither the big guy or the little guy, but simply apply the law and not make the law. Based on what you said yesterday, I believe that you would agree generally with this characterization.

"However, to me," Kohl continued, "it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws...are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative. And we're here trying to figure out what your judicial philosophy is. That's probably the principle point of this hearing. If the law were so simple we would not have as many 5-4 decisions. It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today...have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings.

The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy. So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions. So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?"

"I think that the Constitution contains both some very specific provisions," Alito deftly replied, sidestepping Kohl's landmine. "And there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy. The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies. But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary. I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution..."

"These decisions to which I just referred pushed society into new directions," Kohl shot back testily, frustrated by Alito's answers�but careful not to show his frustration. "And they came about�didn't they? As a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue�which is not entirely consistent with a neutral judge simply applying the law. The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike. I'm suggesting that it's�and I would like to hope you would agree that it's�somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today. I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true? In fact, for decades, courts did not reach these conclusions. So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?"

"Well, Senator," Alito replied, "I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all. But what the judge has to do is make sure that [he] is being true to the principal that is expressed in the Constitution and not to the judge's principle�not to some idea that the judge has."

Kohl's exchange with Alito was the only intelligent Democratic t�te-�-t�te in the interrogation of Samuel A. Alito. Kohl played well to his constituents. Kohl is one of the Judiciary Committee members up for reelection this year. Sen. Ted Kennedy is also up for election this fall. But his approach to Alito was the same as it was with any other conservative judicial nominee�he was the philosophical enemy that needed to be stopped or verbally maimed. Kennedy, like Russell Feingold [D-WI], Schumer, Patrick Leahy and Joe Biden [D-DE], painted Alito as a conservative ideologue who, like Bork in 1987, would roll back Roe v Wade, women's rights, affirmative action and, that Alito was too deferential to presidential power. Sen. Ted Kennedy chose to call Alito a racist, noting that the judge "In 15 years on the bench," Kennedy noted, Alito "...has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job." In point of fact, within minutes of making the statement, Republicans were circulating details of at least four such cases in which Alito ruled in favor of minorities. "Any student in his third week of law school would know this stuff," a GOP staffer said as he passed out the rebuttal of Alito's record. "It has to be intentional." Of course it was.

From the beginning it was clear that the Alito hearing would be more contentious than the Roberts' hearing since Roberts was replacing a conservative vote on the High Court and Alito would be replacing a moderate to liberal swing vote. O'Connor, like the court's four liberals: Stephen Breyer, David Souter, Ruth Bader Ginsberg and John Paul Stevens, had signed on to the globalists agenda over five years ago to apply a more expansive, imaginative view of the Constitution by imputing a special equality to minorities not afforded to the majority in order to ensure social progress, right historic wrongs and protect the civil liberties of minorities and women that the Democrats feel are so essential to the strengthening of democracy.

Alito, who has affirmed his belief in the rule of law, is viewed as a step backward in achieving this "special" equality for cultural and racial minorities. Senator Patrick Leahy showed his disappointment and frustration in the fact that Alito had successfully run the gauntlet when he said, "No president should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of government power..." since the Democrats know that Alito's confirmation will shift the court to the right�back to the rule of law.

It is interesting to note that the Democrats, who virtually controlled both the House and the Senate from 1933 to 1994 with only a couple of brief reprieves, saw nothing wrong with Franklin D. Roosevelt's stacking the high court with the architects of the New Deal to protect the shift from democracy to socialism in America. FDR appointed more justices to the Supreme Court than any other president except George Washington. While the original Court had only 5 justices, none of them viewed the job as a lifetime berth. Washington nominated 14 justices over 8 years. All but one were confirmed within two days. The 14th, John Rutledge (who resigned from the high court in 1791 after two years and was re-nominated in 1795) was denied a second berth on the high court..

The liberal Democrat believes that the moral code of a true democracy (socialism) mandates that it's the duty of each citizen to provide for all other citizens, and that government is the natural instrument to redistribute the wealth of society. Advocates of social justice believe that current injustices to minorities should be corrected until the actual inequity no longer exists. Thus, the redistribution of wealth, power and status from the individual to the community are in the societal good. This is the core objective of the social justice advocate, and this is where the US Supreme Court�and the federal judiciary�has been headed. The liberals need judges who are willing to depart from the rule of law and take eugenic action by reinterpreting the laws based on the principles of social justice in order to ensure that all people have a similar quality of life. True social justice, the liberal falsely argues, does not penalize success or reward failure.

They believe it holds all people to the same standards regardless of their race, ethnic origin, financial condition, or religious beliefs. The concept of social justice is, of course, the principles of communism. It's an experiment that failed in the Soviet Union because communism robs not only the spirit from the man but incentivism as well. Without an incentive to achieve more than mediocrity, man quickly loses any individual initiative to strive for success because the failure receives the same reward. While the socialist society may realize what is perceived as an immediate benefit�poverty is reduced and poverty-related ills to society appear to be erased�but punative taxation that is innately unfair will result in hard-workers working less and the productivity that fueled prosperity will weaken. The economy will stagnate and chronic unemployment that cannot be solved by more government will result.

Had conservative Christians not rebelled against President Bush's selection of White House lawyer Harriet Miers to replace Justice Sanda Day O'Connor, Miers would have had a relatively uneventful confirmation hearing. And a nominee even farther to the left than Harry Blackmun would have unwittingly been confirmed to the high court. Miers would have helped the social activists dilute American sovereignty�and the United States would have been introduced to communism by judicial fiat in the form of social justice activism.

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Denying Miers a slot on the high court, and giving that bench to a rule of law jurist unfortunately will not end the utopian attempt to rewrite the rule of law with what will be media-whipped as the Christian principles of social justice as an alternative to both capitalism and communism. Social justice will simply be implemented at the appellate level until the American people wake up and demand that judges who use forms of social justice to implement the basic tenets of communism in the United States be impeached�and Congressmen and Senators who fail to accede to the demands of the voters be voted out of office, recalled, or impeached themselves.