Many conservatives reportedly chose not to vote in November to protest the Republican Party's abandonment of conservative principles. One potential consequence of that boycott could be a forfeiture of the chance to finally secure a majority of "originalist" justices on the Supreme Court.
Granted, it was going to be tough enough for President Bush to win confirmation for another conservative nominee to the court in the face of a militant minority should a vacancy occur, but now that the Democrats have control it will be virtually impossible.
This is something disgruntled conservatives should contemplate before sitting the next one out. It is also something Republicans should consider before abandoning conservative principles to the point of alienating their base.
Chris Wallace's "Fox News Sunday" interview of Justice Stephen Breyer is a sobering reminder of the impact of the elections on the judiciary. Wallace asked Breyer about his book, "Active Liberty," released a year ago in which Breyer supposedly defended his practice of rejecting "originalism" in constitutional interpretation.
In the book Breyer wrote, "Since law is connected to life, judges, in applying a test in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."
In my book, I noted that Breyer admitted he frequently makes decisions about a law's constitutionality using standards other than merely interpreting the text of the Constitution or the Framers' intent.
Breyer said, "I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history, and tradition -- believing that those help you reach a more objective answer."
I documented how Breyer's judicial approach plays out in his decisions. For example, he defended supporting patently inconsistent rulings in two separate cases involving Ten Commandments displays in front of courthouses in Kentucky and Texas based on the likely consequences of the Court's rulings.
Because the Texas monument had been on display for many years without incident he voted that it was constitutional. But the display before the Kentucky courthouse was much newer and likely to cause religious conflict, so he voted that it was unconstitutional.
It doesn't take a rocket scientist with a law degree to recognize that Breyer usurps legislative authority in rendering judicial decisions on such a basis. It is the prerogative of legislators, not judges, to weigh a law's impact on the community.
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