Fear of Judicial Fiat

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

An extremely important debate is going on within both parties today that will have a very important impact on our nation’s future political direction. The basic question is: Why did President Bush win and why did Senator Kerry lose?


There are many different ways this question can be answered. Many will look at it in purely geographical terms. Why did Mr. Kerry lose states that Vice President Gore won? Others will look at it in organizational terms. Why was Mr. Bush better able to turn out his base?


Others will frame the question tactically. For example, was it is mistake for Mr. Kerry to bring up Mary Cheney’s sexual orientation during the last debate? Many will also say that it all boiled down to the candidates. Mr. Bush was just a better candidate than Mr. Kerry.


The answers to these questions will do a lot to determine who the nominees of the respective parties will be in 2008. If Democrats conclude that Mr. Kerry was just a bad candidate, but everything else was fine, then they will simply look for someone who has whatever Mr. Kerry is perceived not to have or lacks whatever baggage he is thought to carry.


The post election debate will also determine congressional strategy. Because many Democrats believed that the 2000 election was essentially stolen from them and that Mr. Bush was therefore not a legitimate president, they felt justified in following a scorched earth policy. They blocked his judicial nominations, threw roadblocks in front of many of his initiatives, and resisted cooperation even on measures they basically supported, such as Medicare drug coverage.


Right now, Democrats seem to be leaning toward the idea that Mr. Bush’s victory is based primarily on turning out religious nuts to vote for him. These people are viewed in certain Democratic quarters as the American Taliban. It is thought that if they gain political power, not only will abortion and gay marriage be banned, but so will dancing, rock and roll, and any movie with an “R” rating.


This is nothing but nonsense, but is commonly believed in places like Hollywood and New York’s Upper West Side. They really believe that Mr. Bush is the ayatollah and it’s only a matter of time before all women are walking around in burkas. No wonder they fought Mr. Bush so strenuously.


The truth is that the issue of values, which motivated many of Mr. Bush’s supporters according to exit polls, has much less to do with religion than Democrats believe. Ironically, the real problem is that liberals have imposed their beliefs on America in exactly the way they imagine that conservatives want to do. In many cases, the real frustration isn’t even with the liberal goal, but they way they achieved it.


Consider the most divisive issue of all: abortion. Had the courts left it alone, the states would gradually have changed their laws, with some being very permissive and others maintaining tight restrictions. This would have eventually led to one of two outcomes. Either it would stabilize, as people moved to states that suited their moral or religious beliefs, or it would have pressured Congress to adopt something that probably would look much like the trimester system we have today.


But the democratic process was not allowed to operate. It was too time consuming, too messy, and too uncertain for those who wanted legalized abortion immediately. So the Supreme Court imposed it by fiat, thus leaving those against abortion or even just uncomfortable with it feeling disenfranchised, as if their views count for nothing. Moreover, the lack of a legislative solution also means that there is no way to tinker with the system to fix obvious flaws, such as the problem of partial birth abortion, without reopening the whole question of abortion for debate.


A similar situation has arisen over gay marriage. Liberals are too quick to assume that all opposition to it is based solely on hatred of gays, when in fact it is based more on a fear that the courts will impose it by judicial fiat without the consent of the people.


Consequently, there are growing numbers of voters who are secular in their beliefs, but find themselves within the values coalition. They oppose making abortion illegal, but also oppose Roe v. Wade. They have no problem with gay marriage, but are appalled that a single court in our most liberal state is effectively imposing a national policy allowing gay marriage. Such people are not prudes, but don’t want their children viewing nudity or listening to profanity on the public airwaves.


If Democrats conclude that there is nothing to the values issue except religion, they will be very mistaken. Unfortunately, they may conclude that they will have to rely even more on the courts to impose their agenda in the future, thus making the fight over Supreme Court appointments even more bitter.



Mr. Bartlett is a senior fellow at the National Center for Policy Analysis.


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