David Limbaugh

While it is always tempting to write about John Kerry's multiple personality disorder on Iraq, I will address instead his statements in the second debate on the role of the judiciary and abortion.

Kerry first mocked President Bush for promising to appoint judges who would strictly interpret the Constitution ("originalists"), saying that early in his term Bush said we need "good conservative judges" and that his favorite judges were Clarence Thomas and Antonin Scalia.

Kerry's intent was to depict President Bush as one who would politicize the courts -- something Kerry has been doing for years. But President Bush's statements are not inconsistent. People often refer to originalist judges as conservatives because most the judicial activism in the past 50 years has emanated from the Left.

Since conservatives abhor judicial activism, it is no accident that most "originalist" judges are conservatives -- though they don't believe in "legislating" their ideology from the bench.

Liberals like Kerry don't seem to be able to grasp the distinction. They believe that justices like Thomas and Scalia, by wanting to restore the Constitution to its originally intended meaning, are engaging in judicial activism merely when they vote to roll back judicial legislation proceeding from liberal activist judges.

To be sure Justices Scalia and Thomas are conservatives, but they are first and foremost originalists. They do not view the judiciary as a third policy-making branch. In fact, even on the abortion question the most any originalist judge would do is reverse Roe v. Wade. Such a reversal would not automatically outlaw abortion. It would return the question to state legislatures, who would determine the matter pursuant to democratic (legislative) -- not judicial, processes.

After fraudulently characterizing the president's position, Kerry fraudulently characterized his own. He said, "I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge."

Kerry said he would appoint judges who would protect a woman's right to "choose." "These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to law."

But Kerry knows the right to "choose" is only a "constitutional right" because an activist court wrote it into the Constitution in 1973. If that Court had applied the principles of constitutional interpretation Kerry is now paying lip service to, Roe v. Wade would have been decided differently.

It is completely disingenuous for Kerry to say that he is an originalist because he would appoint judges who would protect rights grafted into the Constitution by activist judges.

David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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