by Gary L. McDowell
The Washington Times
January 26, 2005


There is arguably no issue of greater importance to the future of
the American republic than how the coming war over nominations to
the federal judiciary will turn out. President Bush has upped the
ante considerably and admirably by making clear his intention to
appoint to the bench only those who will take the Constitution
seriously and who understand that interpretation is not the same
thing as making public policy. He seeks those who will be guided by
the framers' original intentions rather than the moral mood of the
moment.

As if to infuriate his critics all the more, the president has
indicated that Justices Clarence Thomas and Antonin Scalia
originalists, both are his kind of judges. The very thought of
more Thomases and Scalias has left the liberal apologists for
judicial activism sputtering with rage and plotting further
filibusters in an attempt to undermine the president's
constitutional power of appointment.

The stakes could not be higher. Will the federal courts
generally, and the Supreme Court in particular, continue down the
path of creating new rights out of whole cloth without any support
in the Constitution itself giving the nation such things as the
right to privacy, the right to abortion and the right to homosexual
sodomy or will it be returned to the republican fold by
carefully-chosen and vigorously-defended nominees who are properly
committed to the idea of judicial restraint? Everyone who cares
about this battle for American constitutionalism would be well
advised to turn to Mark R. Levin's new book, "Men in Black: How the
Supreme Court is Destroying America." With a scholar's eye and an
advocate's eloquence, Mr. Levin plunges to the heart of why this is
a war that simply must be won. In place of constitutional government
of limited and enumerated powers, he argues, we are careening toward
nothing less than "a de facto judicial tyranny."

Not since Raoul Berger's seminal "Government by Judiciary" has a
book exposed so clearly the political dangers of ideologically
freewheeling and constitutionally untethered judges being allowed
indeed, encouraged to transform the Constitution. While most of
the public's attention focuses on abortion and gay rights, Mr. Levin
shows how many other areas of our basic constitutional law have been
corrupted by judges willing to supplant the intentions of the
framers with their own moral predilections.

"Men in Black" surveys a broad political landscape that has come
to be littered with the handiwork of justices who have forgotten
their constitutional place. Here one can see how the Supreme Court
has gone far beyond the right of privacy in sexual matters and has
interfered with laws on everything from immigration to restricting
virtual child pornography to the war on terror. One of the most
helpful chapters is one that makes sense of the underlying issues in
Bush v. Gore and why the Supreme Court did what it did and why it
should never do it again.

Perhaps the most important contribution of this readers' guide
to the judges' war is the story of how we got to this unhappy place.
After all, the constitutional provisions for the federal judiciary
are relatively meager. The Constitution does not really create the
federal judiciary as an institution but only creates the judicial
power, leaving most of the institutional details such as kinds and
numbers of courts, number of justices on the Supreme Court,
appellate jurisdiction and the regulation of the judicial process
to the discretion of Congress. Nor is there even any explicit
provision in the Constitution for the power of judicial review
itself. As Mr. Levin makes clear, this is not exactly the kind of
foundation one would expect for an institution that some now insist
is meant to be the moral guardian of the republic.

In part, this has come about through an unholy alliance between
left-wing interest groups and the Democratic members of the United
States Senate. Not being satisfied with telling the story of how
those senators accommodate themselves to their well-organized
ideological constituents, Mr. Levin reproduces the series of
memoranda that passed back and forth during Mr. Bush's first term,
laying the groundwork for just how the Senate would exercise its
power of advice and consent to block the president's nominees to the
federal bench.

The most lasting contribution of this fine book is its
commitment not to conservatism but to constitutionalism, to the
belief, as Alexander Hamilton put it, that the Constitution is the
embodiment of "the intention of the people" and that, in the words
of Chief Justice John Marshall, the idea of a written constitution
was "the greatest improvement on political institutions." This is a
book that should be on the desk of every senator.

Gary L. McDowell is Tyler Haynes Professor of Leadership Studies
and Political Science at the University of Richmond and is a member
of the board of the Landmark Legal Foundation.