Kerry claims he opposes gay marriage but voted against the Defense of Marriage Act, which would protect other states from having to recognize Massachusetts' same-sex mischief. He opposes legislation to maintain the traditional definition of marriage and praises judges who presume to redefine it.
Kerry's paradoxical position can be explained by saying he is a judicial supremacist who believes unelected judges should have final say on controversial social policies. He and other liberal Democrats know that many of their policy objectives can be achieved only with the cooperation of activist judges.
Antonin Scalia and Clarence Thomas are the only Supreme Court justices who eschew judicial supremacy and believe in relying on the actual text of the Constitution and statutes. They are the only justices who have coherent legal philosophies respected by legal scholars and are the most reliable defenders of constitutional rights. It was Scalia who wrote the majority opinion for the two big cases of 2004, decisions that guaranteed a criminal suspect's right to a fair trial.
In Crawford v. Washington, Scalia affirmed the constitutional right to confront witnesses. In Blakely v. Washington, Scalia led a 5-4 majority in affirming the right to a jury trial, as opposed to allowing judges to impose extra-long sentences based on evidence never submitted to a jury.
When the president said Scalia and Thomas are examples of judges who base their judgments strictly on the words of the Constitution, he was stating just what Americans expects from their judges. The alternative is for judges to base their decisions on personal political views and supremacist attitudes.
It's not that Scalia and Thomas always agree; they don't, and they have had some sharp disagreements so far in 2004. Justice Ruth Bader Ginsburg agreed with Justices John Paul Stevens, David H. Souter and Stephen G. Breyer more often than Thomas agreed with Scalia. What makes Scalia and Thomas seem similar is that they are the only Supreme Court justices who actually do their jobs the way judges are supposed to.
The president says, "We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order." When a Supreme Court vacancy occurs, we expect the president to stand down the Daschle Senate and appoint another Scalia or Thomas.
Kerry has flip-flopped on what sort of litmus tests he might apply to his appointments, but it seems clear that he wants to appoint judges who will remake U.S. culture by court order. He just won't admit it on national television, and speakers at the Democratic National Convention were indeed "issued muzzles," as U.S. Sen. Zell Miller, D-Ga., charged on "Meet the Press."
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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