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Out of Order

Sunday, September 1, 1996

On January 20, 1993, Bill Clinton raised his right hand and took an oath before God and the American people that he would "preserve, protect, and defend the Constitution of the United States." Now, as the next presidential election approaches, the American people are entitled to know whether he has kept his vow. Specifically, they are entitled to know something about the records being compiled in office by the men and women to whom President Clinton has granted lifetime appointments on the Supreme Court and the lower federal courts. Are Bill Clinton's judges mostly effective defenders of the Constitution, or are they legal realists who feel free to rewrite the Constitution? Are they moderate New Democrats committed to enforcing the law, or are they left-wing "political hangers-on" with a radical and unpopular agenda for social change?

          To ask these questions is not to challenge judicial independence nor even the fundamental decency, on a personal level, of many of the Clinton judicial appointees. The decision that faces the American people is not whether Bill Clinton's judges should be impeached, or whether he should call on some of them to resign, or whether they should have been confirmed in the first place, or whether they are nice people or smart lawyers. The question is, "Given the president's record so far, can we expect a federal judiciary shaped by Bill Clinton to respect the Constitution and honor its role as the interpreter, and not the maker, of our laws?"

          There are two major problems with Bill Clinton's judges. First, they have been unwilling to follow the Constitution in a number of very important cases. And, second, when they choose not to follow the Constitution, they have all too often replaced it with radical and unpopular left-wing social policy. In area after area, Bill Clinton's justices and judges are compiling a public "policy" record that is far to the left of the president's own public statements on similar issues. Bill Clinton may present himself to the public as a mainstream moderate, but his likable justices and judges are working quietly to impose a radical McGovernite legislative agenda on the country.


Many Clinton judges have replaced the Constitution
with radical and unpopular left-wing social policy

          Bill Clinton's judicial appointments have had their biggest impact to date on the U.S. Supreme Court. With only two appointees, he has succeeded in transforming a moderately conservative Court into one that is (at best) one vote away from being an engine of radical left-wing social change. His justices are the political heirs of William J. Brennan and Thurgood Marshall, and they have gotten the better of the lightweight Republican justices imposed on Presidents Reagan and Bush by a Democratic Senate (and by liberal Republicans) after the 1987 nomination of Judge Robert H. Bork was viciously defeated. Many conservatives don't realize just how liberal Bill Clinton's two affable Ivy League justices really are. In part, this is because Justices Ruth Bader Ginsburg and Stephen Breyer are exceptionally bright and likable people. Nevertheless, in case after case they have voted for Big Government, against federalism, for a radical secular humanism that hates religion, against traditional social values, for the "rights" of pornographers and drug dealers, against private property, for racial quotas and preferences, and against the creation of a truly colorblind America.

          The two Clinton justices depart from the William J. Brennan model of liberal judicial activism in only two significant ways: first, they write (or join) opinions that are more cagey and politically astute than blunderbuss opinions such as Roe v. Wade. As a result, the public is unaware of the extent to which radical left-wing policy ideas are seeping into our court opinions. Second, they do not oppose the death penalty across the board, although to some extent they resist its implementation. In every other important respect, the two Clinton justices are the children of the Warren Court, far-left ACLU judicial activists intent on writing their own radical and elite prejudices into the Constitution.

          Many of Bill Clinton's lower-court judges (though not all) are equally or even more left-wing, but they have been unable so far to have much of an impact, both because they remain outnumbered and because the Reagan-Bush judges on the lower courts have turned out better in most parts of the country than have their brethren on the Supreme Court. If Bill Clinton wins a second term, however, this will change. In less than four years, he has filled about 25 percent of the seats on the federal judiciary. If re-elected to another term, he will have a chance to replace hundreds more retiring judges, and many of the federal courts of appeals will flip from Reagan-Bush to Clinton-Carter majorities. And depending on how lucky he gets, he will almost certainly name another one to three left-wing Supreme Court justices. This means that the few 5 to 4 wins that conservatives have managed recently will all become losses.

          Let's look at what Bill Clinton's America will then be like, and contrast it with the America he claims to want. A good way to do this is to compare the specific policies Bill Clinton says he favors with the left-wing social policies that his judges are legislating from the bench. In doing this, we should remember that not all the Reagan-Bush appointments have turned out well, nor have all of Bill Clinton's judges turned out badly. Nonetheless, the overall pattern is quite clear.

Limited Government

          "The era of big government is over" (January 23, 1996).

          Or so Bill Clinton said in his last State of the Union address. Unfortunately, Justices Ginsburg and Breyer certainly have not yet been let in on the secret. Both have voted in favor of every single claim of national governmental power yet to come before them. Only a year ago, in U.S. Term Limits, Inc. v. Thornton, both Clinton justices were members of a 5 to 4 majority on the Court that struck down state-imposed term limits on Members of the U.S. Congress. As a result, the term-limit laws of 22 states, 21 of which had been adopted by the voters directly in initiatives or referenda, were declared invalid. The Clinton Justice Department filed an unusual "friend of the Court" brief to encourage this result. The fact of the matter is that Bill Clinton's Supreme Court justices killed the term-limits movement: had either of the two Clinton justices joined Justice Clarence Thomas's elegant and brilliant dissent, we would have term limits in most of the United States today.

          These votes were not anomalies. In United States v. Lopez, both Clinton justices again voted for the position that the national government has unlimited power to regulate all aspects of the nation's economic, social, and cultural life. Justice Breyer wrote the main dissent for four of the nine justices and was joined by Justice Ginsburg. He paid only lip service to the idea that the U.S. Constitution limits the power of the national government in any way whatsoever. Under Justice Breyer's interpretation of the Commerce Clause, the federal government could nationalize education curricula, local law enforcement, family law, and everything else under the sun, so long as Congress could rationally think that doing so would in some attenuated way be connected to interstate commerce. Justices Breyer and Ginsburg clearly believe that the Big Government of the Great Society and the New Deal can do anything it wants to, so long as it does not violate the Bill of Rights or its "emanations and penumbras."

          This past March, Justices Ginsburg and Breyer were again on the wrong side of an important federalism case. In Seminole Tribe of Florida v. Florida, they joined a strident dissent written by Justice David Souter that argued for overturning a 200-year-old understanding that state governments are protected from lawsuits in federal court by the doctrine of sovereign immunity. Casting aside years of settled understanding, Justice Souter argued that Congress should be able to authorize citizens to sue state governments without their consent -- a theory that reduces the states from a position of co-sovereignty to one of abject subordination. Chief Justice William Rehnquist won the 5 to 4 vote in Seminole Tribe with no margin to spare, and the dissenters promised in their opinions to try to overrule the case at the first opportunity.

          The Big Government activism of the Clinton justices also manifests itself in "separation of powers" cases since that doctrine, like the doctrine of federalism, is for them an inconvenient restraint on the unlimited power of the national government. Justice Ginsburg was one of only two dissenters in Plaut v. Spendthrift Farm, Inc., an important case that limited Congress's power to retroactively command the federal courts to reopen final judgments in private civil actions already decided. Justice Breyer weighed in with a tepid separate concurrence in the case rather than join Justice Antonin Scalia's forceful majority opinion.

          The Clinton justices are completely unwilling to enforce the Framers' written Constitution of limited powers, federalism, and checks and balances. Their idea of constitutional law begins and largely ends with a judicially dictated jurisprudence of unenumerated rights. Even the constitutionally enumerated right that protects private property from being taken without just compensation is given short shrift: Justice Ginsburg, for example, joined three other justices in dissenting from Chief Justice Rehnquist's important opinion in Dolan v. City of Tigard, which protected private property from confiscation by regulation. In that case, a municipal government was ultimately rebuffed in its attempt to force a shop owner to set aside 15 percent of her land as a public easement as a condition of receiving a building permit. Justices Ginsburg and Breyer also dissented in Missouri v. Jenkins, the Kansas City school-desegregation case. In that case, they joined an opinion that took the extraordinary position that federal judges can require local governments to raise taxes in order to fund remedial education and magnet schools.

Religious Freedoms

          "[The First Amendment] does not convert our schools into religion-free zones. . . . I am deeply troubled that so many Americans feel that their faith is threatened. . . . When the First Amendment is invoked as an obstacle to private expression of religion, it is being misused. . . . Religion has a proper place in private and a proper place in public, because the public square belongs to all Americans" (July 12, 1995).

          Or so said Bill Clinton in a widely reported speech at a suburban Washington, D.C.-area high school. It went unremarked at the time, however, that his two Supreme Court appointees had recently voted in Rosenberger v. University of Virginia to maintain our schools as religion-free zones. The issue in Rosenberger was whether a student activities fund, which was used to support various publications by student groups, could also be used to pay for the printing costs of Wide Awake, a Christian student newspaper. By a vote of 5 to 4, the Court said yes, over the dissenting votes of Justices Breyer and Ginsburg.


Justices Breyer and Ginsburg joined a militantly secular
tirade against any role for religion in any public institution

          The opinion that they joined was a militantly secular tirade against any role for religion in any public institution. It reasoned that not a penny of public money can ever be spent on anything religious, even though public money is routinely spent in huge quantities on educational programs hostile to religion or to religiously inspired moral values. Under the ahistorical rhetoric of the dissenters in Rosenberger, it is hard to see how the courts could ever uphold government chaplains, Thanksgiving Day holidays, mottoes on our currency, school vouchers, or even tax deductions for religious organizations. The Rosenberger dissent theorizes that no government aid can ever go to any religious organization, even if the aid is equally available to comparable secular organizations.

          "I personally did not believe that it was coercive to have a prayer at an outdoor sporting event or at a graduation event because I don't believe that it is coercive to people who don't participate in it" (November 14, 1994).

          A nice sentiment, but one that is unfortunately not shared by Judges Theodore McKee and H. Lee Sarokin, Bill Clinton's two appointees to the U.S. Court of Appeals for the Third Circuit. In fact, Judge McKee wrote the en banc opinion for the Third Circuit in ACLU and Edward Ross v. Black Horse Pike Regional Board of Education, a decision that banned student-led graduation prayers throughout Pennsylvania, New Jersey, and Delaware. Judge McKee's radical opinion went further than the U.S. Supreme Court has ever gone in this area by outlawing student-led graduation prayers as well as prayers organized directly by a school principal. In order to do this, Judge McKee had to reject a directly "on point" holding of the U.S. Court of Appeals for the Fifth Circuit, which had upheld student-led graduation prayers in Jones v. Clear Creek Independent School District. Four Reagan-Bush judges dissented from Judge McKee's opinion, while every Democratic appointee on the Third Circuit joined it. Judge McKee's pro-ACLU advocacy was so effective with his colleagues that he even brought a number of the feebler Reagan-Bush appointees along with him. Bill Clinton's hopes that we could have graduation prayer were dashed by his own appointee. Now, to determine what our national policy will be on this issue, an increasingly anti-religious Supreme Court will soon be obliged to hear and resolve the conflict that Judge McKee has created between the Third and Fifth Circuits on this issue.

Racial Quotas and Preferences

          "I say to you, I'm against quotas. I'm against discrimination" (September 21, 1995). "Today, I am directing all our agencies to comply with the Supreme Court's Adarand decision, and also to apply the four standards of fairness to all our affirmative-action programs that I have already articulated--no quotas in theory or practice; no illegal discrimination of any kind, including reverse discrimination; no preference for people who are not qualified for any job or opportunity; and as soon as a program has succeeded, it must be retired. Any program that doesn't meet these four principles must be eliminated or reformed to meet them" (July 19, 1995).

          Great rhetoric but, unfortunately, there are two Clinton appointees who will not be complying with the Supreme Court's 5 to 4 decision in Adarand outlawing quotas in federal programs. Yes, that's right -- Justices Breyer and Ginsburg both dissented in that case, and Justice Ginsburg actually wrote one of the dissenting opinions. She tried to put a pro-racial-preference spin on Justice Sandra Day O'Connor's plurality opinion, and said she saw "today's opinion as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions." Translated into everyday English, Justice Ginsburg hopes to distinguish or overrule Adarand at the first opportunity.

          And what, you may wonder, ws the "moderate" federal affirmative-action program in Adarand that Justices Ginsburg and Breyer were so eager to uphold? It was an explicit racial-preference program for government highway subcontractors, a preference so blatant that even many who support affirmative-action recruitment efforts in universities have condemned programs like this one. Justice Ginsburg was so enthusiastic about this particular program that she not only authored a dissenting opinion herself but also joined two other dissenting opinions: one by Justice Souter and another, even more radical, opinion by Justice John Paul Stevens. Justice Ginsburg was the only other member of the Court to join Justice Stevens's opinion, which would appear to uphold all federal racial-preference programs of any kind that are, in his opinion, well motivated.


Justices Breyer and Ginsburg have voted to uphold every
racial preference or quota that has come before them

          Justices Ginsburg and Breyer's votes on the racial preference/quota issue in Adarand were not at all idiosyncratic. Rather, they form part of a pattern in which both justices have voted to uphold every racial preference or quota that has ever come before them. In particular, they have dissented in every voting-rights case involving challenges to political redistricting, decisions in which race played the predominant role. This past year, they joined the minority in the 5 to 4 decisions in Shaw v. Hunt and Bush v. Vera, in which the Court threw out racially gerrymandered congressional districts in North Carolina and Texas. Last year, Justice Ginsburg wrote the dissent for four justices (including Justice Breyer) in the companion cases of Miller v. Johnson and United States v. Hayes, in which the Court invalidated racial gerrymanders in Louisiana and Georgia.

          The issue in these cases is whether it is unconstitutional to create wildly odd-shaped legislative districts for the purpose of maximizing the proportion of voters of a particular race, when such districts violate traditional districting standards of compactness and affinity of community interests. The purpose of this whole enterprise is to use federal voting-rights law to allocate congressional seats by race, so that every racial and ethnic group in the nation is proportionately represented according to their numbers in the population at large. While greater minority representation in public life is to be desired, this particular quota regime is in fact a stealthy imposition of the system of proportional representation used in places like Israel, Japan, Russia, and Germany (under the Weimar Republic). Everyone familiar with the unstable politics of those countries knows that this kind of rigid proportional representation is disastrous for social peace, because it rewards extremists and penalizes consensus building. For this reason, many have long thought that the Anglo-American tradition of allocating electoral districts geographically is better than the Continental European tradition of proportional representation.


The Ginsburg-Breyer view of racial gerrymandering
would authorize a racial quota system for Congress

          The Ginsburg-Breyer view of racial gerrymandering would authorize nothing less than a racial quota system for Congress. By enshrining a system of racial and ethnic proportional representation, it would also codify a political system of racial spoils and push us toward the unstable electoral system that has been the bane of Continental European democracies.

Crime

          "The United States cannot tolerate the rates of crime and violence which have come to be almost commonplace in the last several years. We have to intensify our efforts to reduce crime" (July 28, 1996).

          Few issues are of greater concern to most Americans than the fight against violent street crime and illegal drugs, and, as is well-known, Bill Clinton loves to boast that his administration has been tough on crime and on punishing criminals. Once again, however, his judicial appointees often seem to be seriously "off message" when criminal-law cases are before the courts. In its most recent term, the Supreme Court decided Lewis v. Casey, a major case bearing on the right of prisoners to enjoy free prison libraries and legal assistance. The case involved how broadly to read an activist opinion from the 1970s by the late Justice Thurgood Marshall, which requires state taxpayers to subsidize frivolous prison litigation by providing free legal help and library facilities. In this particular case, a federal court in Arizona issued sweeping orders to state prison officials to address the complaints of state prisoners about the quality of their legal research materials.

          Justice Scalia, writing for five Reagan-Bush justices, seized on the case as a chance to cut back on Thurgood Marshall's requirement that state governments subsidize prisoner lawsuits. Scalia argued that the federal courts had no business trying to run state prisons, and he set some common-sense limits on the bad precedent by making it inapplicable when prisoners' claims were frivolous or when prisoners were trying to bring legal action irrelevant to sentences and terms of confinement. Justice Thomas, in a brilliant concurrence, even called on the Court to overrule its offensive and nonsensical precedent. Justices Ginsburg and Breyer, however, chose to dissent from most of Justice Scalia's opinion. They joined a handwringing, meandering dissent that complained that Scalia was going too far and too fast in protecting state prison authorities and taxpayers from the desire of prisoners for good libraries.

          This same term, Justices Ginsburg and Breyer also joined a sweeping opinion by Justice Stevens in Jaffee v. Redmond that recognized a disturbing new rule that could keep vital evidence of wrong behavior from being used in federal court for either civil or criminal trials. In that case, the Court held that conversations between a patient and her psychiatrist or social worker are protected from compelled disclosure during the course of a federal criminal or civil trial. The Court's decision to exclude a sweeping new category of evidence in this case is disturbingly reminiscent of the Warren Court's great exclusionary-rule blunders in the 1960s. Every time evidence is excluded from the courtroom, the task of proving the guilt (or innocence) of the culpable becomes more difficult. To impose this burden upon prosecutors in order to protect communications not only with psychiatrists but also with social workers is sheer folly. As Justice Scalia noted in his dissent, we don't allow a testimonial privilege in federal court for conversations with parents, siblings, children, or bartenders. Why on earth would we carve out such a privilege for social workers? Sadly, the case was lost by a vote of 7 to 2.

          Justice Breyer cast two other noteworthy votes in criminal cases this term. First, he joined two separate opinions in Felker v. Turpin that sought to water down the new federal law for expediting the application of the death penalty. Second, he joined the dissent in an important 5 to 4 decision on whether police can apply a property seizure law designed to discourage prostitution. Had the dissenters' view prevailed, the customers of prostitutes would have been able to protect their cars from confiscation by co-registering them with the very wives they were betraying.

          There are countless lower-court criminal-law opinions by Clinton appointees that are deeply disturbing. To mention just one example, consider United States v. Hamrick, decided by the Fourth Circuit Court of Appeals, where Clinton appointee M. Blane Michael joined a dissent that would have exonerated a defendant who had mailed a bomb to the U.S. Attorney who had prosecuted him. Judge Michael was of the view that the bomb was not a "deadly weapon" within the meaning of the federal criminal law, because it was badly made and didn't cause too much damage when it exploded!

          As these examples illustrate, this administration is appointing some disturbingly fuzzy minds to the federal bench. Once again Bill Clinton's tough talk on crime is revealed to be nothing more than talk. His judges are rapidly bringing us back to the bad old days of 1960s Warren Court liberalism.

Mainstream Values

          "When I sought the presidency, I said that I wanted . . . to put mainstream values back at the heart of social policy. . . . [W]e're moving in the right direction to reassert and reinsert into American life mainstream values. And, I believe the initiatives of our Administration have played a role in that" (October 13, 1995). "I know not everybody's going to be in a stable, traditional family like you see in one of those 1950s sitcoms, but we'd be better off if more people were" (September 9, 1994).

          Mainstream values? Stable traditional families? So far, Bill Clinton's justices and judges have voted to: strike down his own liberalized policy on "gays in the military" as unconstitutional; require that gays be given special rights under certain state and local civil rights laws, thus forcing private landlords, elementary-school boards, and employers to associate with militant gays even if they don't want to; oppose an important Utah statute that regulates abortions after 20 weeks; and, incorporate a particularly strident and unreasonable version of the failed Equal Rights Amendment into the federal Constitution. And, they have managed to do all of this in just the last two years!

          Let's take these "mainstream values" judicial opinions one at a time. As is well known, Bill Clinton shot himself in the foot shortly after he was elected by attempting to change the U.S. military's long-standing policy of refusing to allow homosexuals to serve in the military. After an enormous public uproar, he was forced to back down by moderate liberals like Senator Sam Nunn and Colin Powell, the chairman of the Joint Chiefs of Staff. In November 1993, he signed a statute creating a new "don't ask, don't tell" compromise policy; it was designed to quell public outrage by keeping outspoken gay individuals out of the armed forces, while making clear that the military should not pursue the expulsion of gays who did not commit homosexual acts and who did not discuss their private sexual activities and inclinations.


A constitutional right for homosexuals to marry, adopt
children, or teach in grade school may be just around the corner

          Since then two federal courts of appeal have heard cases on this issue. In Stefan v. Perry, the D.C. Circuit voted 6 to 4 that the long-standing pre-1993 policy of excluding homosexuals from the military did not violate the Constitution. Bill Clinton's sole appointee, Judge Judith Rogers, voted to invalidate the policy, as did all the Carter appointees. All of the Reagan-Bush appointees voted to uphold the policy. On April 5, 1996, the full U.S. Court of Appeals for the Fourth Circuit voted 9 to 4 to uphold the constitutionality of Bill Clinton's own "don't ask, don't tell" policy. Amazingly, both of Bill Clinton's appointees to that Court, Judges M. Blane Michael and Diana Motz, voted to strike down his own quite liberal policy as unconstitutional.

          But Judges Rogers, Michael, and Motz are by no means out of step for the Clinton judiciary on these matters. Last May, Justices Ginsburg and Breyer joined a 6 to 3 majority in Romer v. Evans. In that case, gay-rights groups had challenged a ballot initiative passed by Colorado voters that overrode all attempts by Colorado towns to enact special civil-rights protections for gays. Had the two Clinton justices joined the three dissenters in that case, Colorado's policy of legalizing homosexuality but not granting it preferential status would still be good law.

          Some conservatives have been tempted to read the Court's confused opinion in Romer, which Justices Breyer and Ginsburg joined without comment, quite narrowly. This is almost certainly a mistake. The opinion contains opaque references to the illegality of "status discrimination" -- a key issue in the "don't ask, don't tell" cases heard so far by the D.C. Circuit and the Fourth Circuit. If the Court pursues this idea of outlawing "status discrimination," and if it continues to view any failure to treat homosexuals like heterosexuals as being evidence only of "irrational animus," then there is no reason to think that a constitutional right for homosexuals to marry, adopt children, and teach in grade schools is not right around the corner. The Court's meandering opinion and the silence of the five justices who joined it offer no assurance whatsoever that any differential treatment of homosexuality is still allowed. Those conservatives who took comfort in the Court's refusal to say it was applying "strict scrutiny" (the highest level of judicial scrutiny) to classifications based on sexual orientation are being misled. The Court is applying strict scrutiny in this case, without acknowledging candidly that it is doing so.

          The "mainstream values" of the Clinton judges don't end with issues bearing on homosexuality. In Leavitt v. Jane L., the Court voted 5 to 4 to summarily reverse a decision of the U.S. Court of Appeals for the Tenth Circuit that invalidated those portions of a Utah state law that prohibited abortions after 20 weeks, except where the mother's life or medical health will be seriously threatened or where the child will be born with "grave defects." The case arose because under Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Utah statute was unconstitutional insofar as it prohibited abortions before the fetus is "viable" outside the womb.

          The Utah law, however, clearly provided for the "severability" of its other provisions in the event that one part of the law was ruled unconstitutional. The Tenth Circuit had willfully refused to sever the statute so that abortions after 20 weeks could be regulated. Five Justices joined a rare, short per curiam opinion summarily reversing this as blatant error. This short opinion reflected nothing more than the long-settled idea that even after Roe v. Wade, the states can still regulate third-trimester, "post-viability" abortions so long as no "undue burden" is placed upon the mother's right to protect her own life or health. Justices Ginsburg and Breyer, however, dissented. They claimed variously that the Court should defer here to the Tenth Circuit, that summary reversal should be used rarely, and (implicitly) that the issue was not important enough to merit a grant of certiorari and a summary reversal. Do they intend in a Clinton second term to try to extend the near-total right to abortion in Roe to third-trimester abortions or to infanticide? Why would anyone with "mainstream values" join an angry four-justice dissent in an easy severability case like this?

          Then, of course, there is the Court's "mainstream" opinion by Justice Ginsburg in United States v. Virginia where the Court held that the Virginia Military Institute, an all-male military academy funded by the state of Virginia, could not constitutionally exclude women. This case is remarkable less for its invalidation of the all-male program at VMI than for its writing into the Constitution a particularly extreme version of the Equal Rights Amendment -- which had failed to win popular support and passage through legitimate channels in the 1970s and early 1980s.


Single-sex combat units, draft registration, football
teams, and private schools may now be unconstitutional

          Justice Ginsburg wielded the Fourteenth Amendment's Equal Protection clause to create a new standard of strict scrutiny for gender classifications, while using a milder label that minimizes the political fallout for liberals in the White House and in Congress. Henceforth, says Justice Ginsburg, gender classifications require "an exceedingly persuasive justification" and are subject to "skeptical scrutiny." They may not be used to do anything that in the view of the justices "creates or perpetuates the legal, social, or economic inferiority of women" nor may they rely on anything that in the view of the justices involves an "overbroad generalization about the different talents, capacities, or preferences of men and women." Thus if American society thinks that single-sex draft registration or combat rules are desirable, it is going to have to say something "exceedingly persuasive" to a "skeptical" Justice Ginsburg. If American society wants single-sex sports teams at its state schools, it must have something "exceedingly persuasive" to say to a "skeptical" Justice Ginsburg. If American society wants to offer charitable tax-exempt status to a private women's college or to a Roman Catholic Church priesthood, it is going to have to say something "exceedingly persuasive" to a "skeptical" Justice Ginsburg.

          As Chief Justice Rehnquist (in his concurrence) and Justice Scalia (in his dissent) both pointed out, this anti-democratic, elitist nonsense has nothing at all to do with the very important subject of the equal rights of women. Justice Ginsburg made no effort in her opinion to explain why she thought VMI was unconstitutional while single-sex combat units or football teams were O.K. That is because she is not interested in equal rights for women in the sense that most Americans would understand that term. What Justice Ginsburg wanted to do all along, and did do, in the VMI case was to lay the doctrinal groundwork for a final assault on all remaining classifications and social practices, both public and private, wherein any distinction between men and women is made according to gender. She does not identify a single gender classification or social practice, either public or private, that she is definitively willing to approve. The door is being flung open to a massive judicial assault on our sexist military services, football teams, private single-sex schools, and religious organizations.

The V-Chip

          "I call on Congress to pass the requirement for a V-chip in TV sets so that parents can screen out programs they believe are inappropriate for their children. When parents control what their children see, that is not censorship. That is enabling parents to assume more personal responsibility for their children's upbringing" (January 23, 1996).

          Bill Clinton likes to leave voters with the impression that he is concerned about inappropriate television programs aimed at children. Unfortunately, Justice Ginsburg did not agree in the Supreme Court's recent Denver Cable case. In that case, the law in question sought to modify the public-access policy governing local cable networks that required them to broadcast indecent programming without restrictions. Astonishingly, Justice Ginsburg was one of only two justices on the Court who voted to hold unconstitutional every single restriction before the court that was aimed at suppressing indecent programming available to children watching TV. Justice Breyer's more moderate opinion would uphold a restriction like the V-chip, but not a reasonable requirement that people who want to subscribe to indecent programming must do so by taking some affirmative step to sign up for it. Evidently Justice Breyer is more concerned about the privacy rights of adults who watch indecent programming than about the rights of children who may accidentally see such programming on cable TV.


The last two years have seen a large number
of opinions that are contemptuous of the
values and prerogatives of the American people

          Justices Ginsburg and Breyer's extreme solicitude for the consumers of pornography is shared by both of Bill Clinton's two appointees to the D.C. Circuit. Judges Judith Rogers and David Tatel were on the dissenting side of a 7 to 4 en banc decision that upheld a federal law restricting the broadcast of indecent material to the hours of 10 p.m. to 6 a.m. All seven judges in the majority were Reagan-Bush appointees, while all four of the dissenters were appointed by Presidents Clinton or Carter. It is by no means clear to me that this law would survive review on the Supreme Court today, given Justices Ginsburg and Breyer's views on indecency, the First Amendment, and the rights of children.

          As I hope I have made clear, the U.S. Supreme Court is now dangerously adrift. The last two years have seen an increasingly large number of opinions that are contemptuous of the beliefs, values, and prerogatives of the American people as well as of the democratic process itself. The Clinton justices have almost always been on the wrong side of these cases, and in many instances they have joined minorities of four in support of propositions that are ludicrous and offensive. Although Justices Souter, Kennedy, and O'Connor deserve some of the blame, the other three Reagan-Bush justices have been stellar. Justices O'Connor and Kennedy have joined those three to produce some very important 5 to 4 victories in fighting off racial quotas, allowing religious speech, curbing Big Government, protecting private property, and fighting crime. If Bill Clinton is re-elected and replaces any of those five justices with another "moderate" like Justices Ginsburg and Breyer, then every single conservative victory of the last 28 years will be at great risk of being overturned. The Warren Court ended when Richard Nixon won the presidential election of 1968; the presidential election of 1996 will determine whether the era that Nixon inaugurated is now to be replaced by a new burst of radical left-wing judging.

          But what are we to make of Bill Clinton's role in all of this? Is it remotely plausible to think that he doesn't realize how far to the left his own justices and judges are of his own public statements on issue after issue? No, it is not plausible. Bill Clinton is a former professor of constitutional law, a Rhodes Scholar, and a graduate of Yale Law School. He knows perfectly well the views of the justices and judges he is nominating.

          Obviously, these are very difficult times for anyone who believes in a restrained, law-abiding federal judiciary. There is, however, one consoling thought. If Bill Clinton is re-elected, he will have a mandate from the American people to rein in Big Government, protect religious speech, oppose racial preferences, preserve mainstream values, fight indecent television programming aimed at children, and fight crime and drugs. Which jurist could Bill Clinton possibly name to the Supreme Court whom he could count on to do all of the things that he says he wants done? The answer is obvious: renominate Judge Robert H. Bork.