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Right Wing Rationale for Two and a Half Branches of Government

Reported by Judy - May 8, 2005

If you wonder where the right wing came up with its rationale for the need to rein in what they see as a runaway federal judiciary, look no further than Mark Levin's book Men in Black: How the Supreme Court Is Destroying America.

First, of course, you have to get past the title. The part about men in black, when two of the nine justices are women. Levin never explains how he failed to notice that some Supreme Court justices are women. Perhaps he grew up on a farm in Georgia and doesn't know what a woman looks like (yeah, you know the post I’m referring to).

Or perhaps Levin just never lets facts stand in his way.

Having read the book, I'll go with No. 2.

Levin's book provides the intellectual underpinnings (such as they are), the rationale, the facts, and the agenda of those who want to pack the federal courts with right-wing judges. Part of that agenda is adopting the "nuclear option," ending senators' rights to filibuster against judicial nominees, in order to clear the way for George Bush to name the most conservative judges he can find. Other pieces are more presidential use of recess appointments, more impeachment of judges, and limits on the issues judges can rule on.

With the goal of promoting the nuclear option in view from the beginning, Levin attacks "radicals in robes" for making laws rather than interpreting the constitution and claims "activist judges" are thwarting the will of the people in order to advance their own liberal agenda. "The judiciary, operating outside its scope, is the greatest threat to representative government we face today," Levin claims. He blames "activist judges" for court rulings that conservatives detest concerning the Pledge of Allegiance, abortion, gay marriage, and so on.

Levin's special target is Justice Anthony Kennedy, a conservative appointed to the high court in 1988 by Ronald Reagan. Somewhere along the way, Kennedy seems to have lost his conservative bearings, having voted with the majority to ban the death penalty for minors and to overturn a Texas sodomy statute, a ruling that conservatives worry will lead to the court striking down bans on gay marriage.

Rather than "activists," Levin says, judges should be "originalists," who would interpret the constitution according to what the framers of the constitution intended. For Levin, the constitution has a fixed meaning, fixed within the context of the time in which it was written - the late eighteenth century, when men were men, most blacks were slaves, women didn't matter outside the home, and the only internet was the string on Ben Franklin's kite.

Levin claims to be able to determine what all the framers of the constitution had in mind for the judiciary by pointing to portions of the Federalist Papers, which express the views of just three framers, James Madison, Alexander Hamilton, and John Jay, and by pointing to the constitutional convention's rejection of a provision that would have sent every bill to the court for its approval after congressional passage. Such a wide-ranging legislative veto is hardly the same as judicial review of cases brought to the court on appeal.

What Levin pushes for is a judiciary that, rather than being a branch of government equal to the legislative and the executive, is only half a branch. The high court would lose its power to review the constitutionality of laws because Levin says the founders never expressly gave it that power. Without judicial review, no power would exist to stop Congress from passing laws that in effect repealed the bill of rights. The judicial check on the power of the other two branches would go the way of quill pens and powdered wigs.

What the framers intended, of course, was everything that is on the right-wing's political agenda and nothing that is on liberals' priority list. Gone would be the right to privacy (the basis for rulings permitting abortion, consensual sex among people of the same sex, even the sale of contraceptives) since the bill of rights does not list a right to privacy. On the other hand, government would be free to mandate religious speech in public schools or to give tax money to church schools in the name of school choice because, according to Levin, the Declaration of Independence mentions God so the founders must have meant it was OK to pray in school.

A constitutional lawyer as well as conservative talk radio host, Levin tries to give his work a scholarly shine by using footnotes, but his footnotes are so much window-dressing. He sometimes footnotes several individual words in one sentence to make his work look more respectable. He confines his sources to people at conservative think tanks such as the American Enterprise Institute and the Cato Institute. He fails to provide proper context for Democratic use of the filibuster against a few Bush judicial nominees by ignoring Republican rejection of President Clinton’s nominees. He plays fast and loose with quotations, saying George Washington called for a national prayer "to God," when Washington’s actual words were to "a great and glorious Being," the words of a possible deist.

Levin undermines his own argument along the way. Levin's first chapter is a rogue's gallery of senile, incompetent, or allegedly corrupt judges seemingly included to make the point that judges are fallible. By pointing out throughout the book that judges are unelected and hold office for life unless impeached for misconduct, however, Levin inadvertently makes the case that judges should receive maximum scrutiny from the Senate and that senators unhappy with a presidential nominee should be able to block it indefinitely until someone better is nominated.

He also loses ground by being so inconsistent in the application of his belief in a limited role for the judiciary. Although he thinks judges are guilty of judicial tyranny, Levin defends the Supreme Court decision in Bush v. Gore that stopped the counting of Florida ballots. He says the Republican court was only trying to rein in a "rogue" Florida court, not put George Bush in the White House. Levin says the court didn't need to get involved at all because the Republican Legislature in Florida could just have named Bush the winner. In what must be a sign of dyslexia, Levin titled the chapter on the Florida recount, "The Courts Count the Ballots." Except, the court said, "Don’t Count the Ballots." (Another dyslexic chapter title is "Liberals Stack the Bench." Democrats have held the presidency eight years out of the last twenty-five and somehow they’re stacking the courts?)

The far right has done a good job of picking up Levin’s arguments. Albert Mohler, one of the promoters of Justice Sunday, and James Dobson, chairman of Focus on the Family, have adopted Levin's vocabulary, using words such as "activist judge" and "judicial tyranny." Dobson has called Justice Anthony Kennedy "one of the most dangerous men in America, if not the most dangerous man in America" because of the rulings Levin cited. Both Mohler and Dobson frame the filibuster issue in terms of "blocking people of faith" from judgeships, following Levin’s discussion of blocking of a conservative Catholic judicial nominee, and they warn, as Levin did, against referring to international law in judicial opinions. Listen to Mohler's interview of Dobson before last month's Justice Sunday for a rundown of Levin talking points.

Other than serving as a crib sheet for right-wing idealogues, Levin's book might be a useful read for journalists covering the filibuster issue and judicial confirmations. For Americans who believe in the importance of three branches of government, each checking each other, and an independent judiciary, Levin's book is a waste of time.

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