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Every four years since at least the 1960s, Republican leaders warned the conservative base that if they declined to support the lesser of two evils, scary liberal judges will permanently ruin their lives. “The courts will be lost forever,” they say. Not that these individuals ever have a problem with the judiciary, as witnessed by the multitude of prominent Republicans who say “gay marriage is the law of the land”and the “courts should decide religious liberty.” But these same leaders know the conservative base, the voters most likely to bolt the party as a result of non-conservative leadership, are the most revolted by the prospect of losing the courts.
The truth that nobody in the conservative movement will tell you is that at some point between the ‘60s and today — through one or several of those many elections in which we were supposed to lose the courts forever — the courts were indeed lost forever. One could debate exactly when we officially crossed that Rubicon, and as I write in Stolen Sovereignty, Robert Bork believed that time was in the ‘90s.
Regardless of the exact timing, one thing is clear: we are certainly at that point now.
Thus, the notion that we must elect a Republican president and Senate in order to “appoint better judges” and keep agreeing to the liberal premise that the courts have the power they now claim to hold, is a sure path to failure. The real reason we need a Republican president (aside from other issues such as reviving the military) is to sign legislation permanently taking the ball of the political game out of the courts’ hands by exercising Article III Section 2 and narrowing their jurisdiction. This is essentially what I demonstrate in my book — that no matter who wins in future elections, the courts will only get worse, not better. And in case you haven’t noticed, they did redefine the building block of civilization and are well on their way to redefining sexuality. Since the release of my book, just a few short weeks ago, lower courts have tossed out the most basic state powers imaginable, including measures that would protect voter integrity, protect religious liberty, defund planned parenthood, identify requirements for birth certificates, and recognize men as men and women as women in private dressing spaces.
I’m not saying we should refrain from making the best judicial selections we can when the opportunities present themselves. But if we fail to fight concurrently for judicial reform and begin reclaiming power for the states and the people’s representatives, the nomination of good judges will continue to be a fool’s errand.
Here are 12 reasons why the judiciary, as currently constructed, is irremediably broken in the short-term and long-term and must be stripped down to size if we ever hope to benefit from electing conservatives to the political branches of government:
1. Permanent imbalance on the courts: The nature of the legal profession and the culture of constitutional construction is such that every Democrat appointee is a rabid post-constitutionalist. They bat .1000 on liberal issues. Every one of them believes in codifying transgenderism and gay marriage into law and elevating those issues over our inalienable religious liberty and property rights. Every one of them believes in expanding constitutional rights and citizen privileges for illegal aliens. On the other hand, roughly half of the GOP appointees are not originalists, as witnessed by how many go along with mandated gay marriage and anti-religious liberty rulings. Even if our movement finally succeeds in clamping down on SCOTUS picks, there is no way we will ever bat .1000 with lower court picks. As I pointed out last week, four GOP- appointees on the much-vaunted Fifth Circuit gutted a common sense voter ID law, something not a single Democrat appointee should have done from a legal standpoint even if they disagreed with the policy. But this happens on a weekly basis, and consequently, there will always be an imbalance in the system against us.
2. A penny short and a day late: There is enough existing “jurisprudence” to destroy every facet of the Constitution based on liberal precedent. Likewise, there are far few judges who, like Clarence Thomas, are willing to go back to the original Constitution, even if it means countermanding decades of odious precedent. Even “good judges” will only decline to expand the bastardization of the 14th Amendment, Civil Rights Actand Voting Rights Act. We will never have enough of them to roll back existing precedent, which by itself is enough for the Left to shut down every agenda item we have in the states headed forward.
3. Lower courts matter and are even worse: So many important cases are decided in the lower courts, and those that make it to the Supreme Court are often influenced by the momentum of the lower courts. As I’ve noted on many occasions, the lower courts are even worse than the Supreme Court and that is not going to change any time this generation, thanks to Obama’s lucky timing in turning over circuits. Again, the Fifth and Eight Circuits are the only ones where there is some sanity, and as noted above, we couldn’t even get a voter ID law passed the Fifth Circuit. It has gotten so bad that in some of the most bedrock cases — where in a perfect world every judge would side with the Constitution — we can’t even get one circuit to dissent, thereby making it unlikely the Supreme Court even takes up the case. Only one circuit sided with the right to conscience in a private organization (Little Sisters of the Poor), which is the most sacred property right. The second most important court is already gone for at least a generation. Democrats have an 11-1 majority on the ever-important D.C. district court and a 7-4 majority on the D.C. circuit. And that matters little as not all the Republican judges are originalists (some have been on the wrong side of issues such as Obamacare and gun rights).
4. The next president will not fundamentally alter the balance in lower courts: Given that President Obama has remade 40 percent of the district bench and 30 percent of the appellate bench, liberals are strategically positioned in enough circuits that, when age and circuits are factored in, we are unlikely to shift the balance of any court in a major way unless we had the presidency for roughly 12 years. Meanwhile, conservatives face a judicial time bomb as cases that deal with the most destructive aspects of the Left’s agenda — tearing down immigration enforcement, state criminal codes, voting and redistricting statutes, abortion regulations and laws defining marriage, sexuality and religious liberty — are decided by Obama judges. These judges are not only redefining civilization, thereby rendering election results moot, but are also preventing us from winning elections in the first place by perpetuating voter fraud. Conservatives could never appoint a sufficient number of “good judges” fast enough to slow these leftists from locking in precedent. And as mentioned before, because almost all GOP appointees tend to accept post-constitutional stare decisis, they will not overturn such decisions. Let’s face it: these “conservative legal eagles” will not overturn Obergerfell nor will they overturn the transgender equivalent that will likely be decided soon. Only Justice Thomas was willing to fully uphold the Texas abortion laws. Justices Alito and Roberts would have remanded the case back to the lower courts to better analyze the effects of the law in limiting access to abortion. Now, it could be that these justices still fundamentally oppose the entire abortion jurisprudence and were just playing within the sand box created by Roe and Casey, albeit with a more milquetoast approach than Thomas. But it is quite likely, especially in the case of Roberts, that he would not overturn Roe v.Wade or any other breach in the 14th Amendment already universally accepted by the legal profession. This is the fundamental problem with those who believe we can win the “judicial game” by appointing better justices.
5. The Left only needs a few courts to hamper a common sense conservative agenda: Most major policy issues that Democrats will use the courts to attack are national in scope. Therefore, they can usually shop their lawsuits to specific districts and circuits, where even after four years of a GOP president, they will always find a willing audience. As for state laws, most states have multiple districts, and liberals can usually find at least one district that is willing to issue an injunction. Again, many of these cases never make it to SCOTUS, and even if they do and we successfully change the balance on the high court, it will take years to uphold every common sense policy on a state and federal level. Every deportation, defense of religious liberty, voter integrity law or abortion regulation will be encumbered in courts for years if we continue to accept the premise that courts wield such power. We don’t have the time.
6. Precedent works only one way: By the time conservatives might have sufficient GOP governance to actually make a dent in the lower courts and change the balance of the Supreme Court, we will lose power any way. No party has ever been in office for more than 12 years aside from the FDR-era. Democrats will come roaring back, as the pendulum always swings back and forth, and will continue appointing crazies to the bench. Unlike our judges who uphold even post-constitutional precedent, the Left’s judges have no qualms about overturning 200 years of settled case law and the plain meaning of the Constitution. After all, how else can you explain gay marriage, transgenderism, and overturning immigration enforcement laws? As long as there is one court decision overturning natural law and fundamental rights, our side tends to respect it thereafter. Which is why we won’t even get to this point.
7. Good judges don’t balance bad judges: Let’s say Democrats control the process for eight years in a row and appoint 240 lower court judges and two SCOTUS picks. Then Republicans do the same in the ensuing eight years. Even if we’d miraculously defy gravity and successfully counter all 240 post-constitutionalists with 240 pure originalists in the mold of Clarence Thomas, an impossibility in itself, there is still a major imbalance. We can never win a rigged system in which leftist political ideologues manipulate rules of standing, statutory interpretation and constitutional construction in order to achieve their political outcome. There is no such thing as a Ted Cruz, R- Texas (A, 97%) or Louie Gohmert, R-Texas (A, 96%) of the judiciary. That’s the point; it’s not political. You can’t just grab cases. They have to be brought before the court, the plaintiffs have to legitimately have standing, and the outcome of the case has to legitimately create that desired precedent (not that courts have this power anyway). True originalists won’t manipulate the system to get the desired political result. There is no way to balance 50-60% of the judiciary that believes every single Democrat policy, more radical than ever before, should be enshrined into law and the Constitution. There is no conservative equivalent to codifying state recognition of transgenderism as an inalienable right. Thus, liberal judicial activism is a cancer that can only be cured with wholesale surgery, not chemotherapy.
8. Rigged rules of standing: Closely related to the previous point, for every one at-bat we have at the courts to strike down bad laws in blue states, the other side gets 50 at bats against our laws in red states. This will only get worse when we are in power at a federal level. The Left simply has a legal infrastructure that dwarfs our side and they have the ability to tie up our laws in court within days. While it took us years to even nail down the plain meaning of the most inviolable right to self-defense in Heller, the other side won mandated gay marriage on states, the most radical deviation from the Constitution imaginable, within a few years, and almost immediately in many lower courts. The same thing is happening with transgenderism, Planned Parenthood funding and “rights” for illegal immigrants. And as noted, the judicial tyrants always give them standing to sue.
In chapter five of Stolen Sovereignty, I discuss the imbalance of standing in the context of immigration. With the financial help of George Soros, the Ford Foundation, et al., groups like the American Civil Liberties Union, the Southern Poverty Law Center, the National Immigration Law Center, LatinoJustice and the 10,000 indefatigable lawyers of the American Immigration Lawyers Association, liberals have enough resources to encumber every state and federal law and every enforcement action in the courts for years. They get standing on behalf of illegal aliens and even criminal aliens. But modern standing doctrine in America states that, for the most part, U.S. taxpayers and concerned citizens do not have the same right, as their injury is said to be too attenuated or not direct enough. Despite mass immigration’s negative effects on social cohesion, labor markets, crime, schools, hospitals and public assets being obvious and generally quantifiable, courts continuously dismiss cases brought by American citizens challenging the government’s multi-decades of non-enforcement of our immigration laws. This means a crucial area of policy, one that is absolutely core to our nation’s future and sovereignty, is being decided every day in the courts in a one-sided and biased way.
Thus, even if we appoint a few more good judges and the other side loses some of the cases, they will still win enough cases to impede our entire governing agenda. To use a sports analogy, they have a perpetual first-and-goal at our one-yard line with as many tries as they want. Coupled with one-directional stare decisis, we have to win every case while they only have to win once to cement an enduring victory.
9. Senate politics ruin lower court picks: It is almost impossible to have a perfect record with lower court picks anyway. Aside from the fact that there are too few eligible judges who would actually overturn all of the corrosive stare decisis, there is a tradition whereby the senators from the respective states get to sign off on the nominees. Senate Republicans have already cut deals in their respective states to nominate mutually agreed upon candidates who are more than likely non-originalists.
10. Conservative court victories pale in comparison to sweeping losses: When we win in the courts, they are narrow victories. When the other side wins, they are sweeping social transformations across the board, such as Roe, Obergefell, disparate impact, criminal justice “reform” etc. What about guns and Heller? Heller doesn’t matter that much anyway because we won on the politics of the issue and red states could still do what they want. It’s only blue states that are effected by keeping Heller intact, but remember, even six years after Heller and McDonald, these states are still not enforcing the Constitution and blue states are banning weapons and completely denying the right to carry to residents. Even John Roberts has shown a reluctance to grant cert when there is no circuit split, and the circuits are so bad, they all chip away at Heller. Thus far not a single circuit has ruled our way on right-to-carry or so-called state assault weapons bans. And don’t forget that the benefits of going on offense in Citizens United and some regulatory cases pale in magnitude to the liability of the courts on de-civilization through disparate impact, gay marriage, transgenderism and anti- religious liberty edicts. The sweeping victories for the Left in redefining fundamental rights, natural law and state powers overwhelm any fleeting and narrow victories conservatives might get from a powerful judiciary, in an alternative universe, striking down liberal laws. And as we learned from Obamacare, those victories rarely happen.
11. Supreme Court is not equally divided: It would have been one thing had a liberal judge on the Supreme Court passed away, instead of Scalia. The replacement of that judge, coupled with Scalia’s remaining on the court, would have increased the possibility of swaying the balance in many (but not all) cases. My concern, however, is that raising the specter that everything hinges upon the next Supreme Court justice pick will exhaust all of our political capital … for nothing. To begin with, it will be almost impossible to replace Scalia with a conservative if Democrats hold the Senate. If Republicans maintain a small majority in the Senate, they will have to pull the nuclear option and abolish the filibuster in order to get an originalist confirmed because no Democrat will agree to confirm a true constitutionalist, making it impossible to garner the requisite 60 votes.
Then what? After all that political investment, the Left will still have a 5-4 (and sometimes 6-3) majority on most critical issues, particularly the religious liberty and cultural Marxist issues in which Kennedy is 100% as bad as Elena Kagan. All we would have done is raise the specter of the importance of the court and legitimize its power as the ultimate council of revision, yet we would be forced to submit to all the bad decisions that we had just legitimized. And meanwhile, the lower courts will continue to build momentum for new and radical frontiers of social transformation. Unless another liberal justice dies within the next two years, there will be no more vacancies with a GOP president because Kennedy and Ginsburg won’t retire if Trump wins. To the extent there is a slight shift from the right, Kennedy will continue shifting even further to the Left and the existing problems with Roberts on some issues will become more apparent.
12. Solve the problem wholesale and follow the Constitution: The Judiciary doesn’t have this power anyway so why not go back to the way it was supposed to be rather than raise the specter and legitimacy of the judiciary as the council of revision … and then lose anyway? Stripping the courts of power over societal issues, especially the lower courts, would cost as much political capital as it would to confirm a single justice. Either way, we’d have to blow up the filibuster. Isn’t it better to expend that capital towards actually solving the problem and restoring our system of governance rather than try to repeat 50 years of failure attempting to game an illegal system?
For how much longer will our side continue to legitimize the judicial power grab?
20 years ago, jurist extraordinaire, Robert Bork, made the following trenchant observation:
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
That was at a time when the redefinition of marriage was a long-term fear and the issue of transgenderism wasn’t even contemplated. That was at the foot of the mountain of so much of the radicalism in the lower courts we are seeing today and it was before Obama was able to remake so many circuits in astounding fashion. On net, most of us would go back to the judicial threats of the ‘90s any day of the week — relative to what we are dealing with today. Yet, Bork , understood the judiciary was terminally ill in its entire culture.
For how much longer will our side continue to legitimize the judicial power grab? For how much longer will our side allow the courts to redefine the relationship between man and government, the contours of fundamental rights, natural law, and national or state sovereignty?
There is a better way — a way that addresses the fundamental failure of our strategy for the past 50 years. I invite everyone to join me in educating our elected officials that the ultimate power over broad societal and political questions, and the power of the judiciary itself, lies with their branch of government, certainly not within the exclusive and final jurisdiction of the unelected courts.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.