Eight more Clarence Thomases

Posted: Feb 09, 2001 12:00 AM
After repeatedly accusing John Ashcroft of essentially belonging to the Klan and harboring a secret desire to take away women's right to vote and to murder them personally in back-alley abortions, the Democrats on the Senate Judiciary Committee made it clear that there would be no more Mr. Nice Guy when President Bush sends up his first Supreme Court nominee.

Meanwhile, The Washington Post seems to have brought its old Kremlinologists out of retirement to predict the next vacancy on the Supreme Court. The paper recently noted that Justice Sandra Day O'Connor "has hired law clerks for the terms beginning next October and in October 2002." But on the other hand she's "said to miss (her) friends and family back home in Arizona," she's had cancer, and at 70, she certainly isn't getting any younger.

It seems safe to predict that President Bush's first Supreme Court nominee is going to set off World War III.

A lot is at stake for liberals with the court. If they lose a liberal vote, they will be forced to fight political battles through a messy little system known as "democracy." Somewhat disappointingly, it's impossible for conservative judges to wreck the country for liberals like liberal judges wrecked it for us. Liberals are just being hysterical when they moan about Roe vs. Wade and should be ignored.

There is really no such thing as a judicial activist on the right since the whole point of being a strict constructionist is that you don't hallucinate when reading the Constitution -- and the Constitution simply doesn't say anything at all about most things anyone could possibly care about. Conservatives always knew they had to win at the ballot box; liberals prefer to skip voting and win by judicial fiat.

Notwithstanding the claims of addled feminists, for example, when Roe vs. Wade is finally overturned, abortion won't be illegal. All that will happen is the court will abandon the preposterous fiction that the Constitution says anything at all about abortion. Abortion just won't be a constitutional right anymore, and you people can do what you like in your own states.

Since liberals can't just say that they hate democracy because democracy requires persuasion and compromise rather than brute political force, they accuse any potential "strict constructionists" of being closet slavery supporters. Ludicrous ad hominem attacks on conservative nominees are then used as a basis for the respectable press to refer to the nominee as "divisive." You are "divisive" if you have been the victim of McCarthyite slanders from the left.

On the basis of historical precedent, the odds that Bush will appoint a strict constructionist -- or someone who doesn't hallucinate when reading the Constitution -- are less than 50/50. Not because there is anything the matter with Bush, but because our judges go bad and theirs never do.

Presidents Reagan and Bush had five shots to appoint Supreme Court justices who did not have visions of an imaginary penumbras and emanations clause, and you can see how well that's worked out.

Last term, a majority of justices discovered a novel constitutional right to stick a fork in a baby's head. You can read the Constitution for yourself -- it's not very long -- and see that there is nothing about abortion, suction devices or brains.

The reason our judges go bad and theirs don't is that it apparently takes an obsessive devotion to the Constitution to actually read it before issuing opinions. Judges are essentially government bureaucrats, and the natural tendency of all government bureaucrats everywhere is to continually arrogate more and more power to themselves.

That's why the framers gave very little power to judges, sharply limiting the topics on which the judiciary is permitted to rule. That is also why judges are forever coming up with stratagems to ignore those limits.

Inventing preposterous constitutional rights is evidently more fun than doing what judges are supposed to do, which is deciding tedious Railroad Act cases.

There are, consequently, any number of ways the Supreme Court will wreck the country if Bush appoints another David Hackett Souter rather than another Clarence Thomas. Superb a justice as he is, it would be virtually impossible for another eight Clarence Thomases to wreck the country for liberals.

But it's definitely worth trying. Bush ought to find eight more just like Thomas. For one thing, it would be really cool to have an all-black Supreme Court. But mostly it would be nice to go back to living in a democracy again.