More smoke and mirrors -- Kerry-style

Posted: Oct 12, 2004 12:00 AM

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.

Besides, Kerry has been all over this issue as well. He voted to confirm Justice Scalia in 1986, saying, "I support him not because he is liberal or conservative, but because he is a legal scholar of distinction, principle and of integrity."

Then for the next decade and a half Kerry voted against originalist judges, such as Robert Bork. He applied a de facto litmus test against judges believed to be pro-life, irrespective of whether they would have rolled back Roe v. Wade. Yet during the primary campaign he explicitly denied that he would apply a pro-choice litmus test.

This is just another one of Kerry's specious distinctions without a difference. He would vote only to confirm those justices who would uphold Roe v. Wade (and even partial birth abortion), but would not apply a litmus test? Empty words, signifying nothing.

Even more disturbing was Kerry's repeated assertion that life begins at conception but it's not his place to legislate his moral beliefs on the rest of the nation. "But as a president, I have to represent all the people in the nation."

Does this mean we can't pass laws against murder, stealing, rape, slavery or pedophilia, because they are grounded in morality -- or because not everyone -- every last one -- agrees?

No, and we couldn't define marriage as between a man and a woman or expand it to include same-sex unions for that matter. Both positions are based on morality. Essentially, under Senator Kerry's incoherent formulation, we'd almost have to settle for anarchy -- no laws at all.

But don't worry. Kerry doesn't believe that. He believes in laws based on morality -- his version of it -- or that of his supporters. And while his positions on judicial appointment and abortion seem as discombobulated as his policies on Iraq, he knows where he stands. He just can't always afford to tell us.

But be assured of this: He most certainly would appoint unabashed judicial activists of a politically liberal stripe who are personally pro-choice and would continue to protect abortion as a constitutional right (privacy). Anything he says to the contrary is smoke and mirrors.