Judges stance bol­sters McCain as con­ser­va­tives rally on is­sue

The Washington Times Weekly - - National - By Ralph Z. Hallow

Prom­i­nent con­ser­va­tives and ac­tivists are in­di­cat­ing they will put aside their dif­fer­ences with pre­sump­tive Repub­li­can pres­i­den­tial nom­i­nee Sen. John McCain and rally their sup­port­ers to his side be­cause of one is­sue: fed­eral judge­ships.

In big gath­er­ings and small, in emails and one-on-one con­ver­sa­tions, con­ser­va­tive opin­ion lead­ers fear a Demo­cratic pres­i­dent, es­pe­cially Sen. Barack Obama, will use the pres­i­den­tial power to ap­point fed­eral judges who will re­move ref­er­ences to God and re­li­gious sym­bols from pub­lic places.

They pre­dict the in­com­ing pres­i­dent likely will fill more va­can­cies on the fed­eral bench over the next four years than at any time in re­cent me­mory, giv­ing a Demo­cratic ad­min­is­tra­tion the power to shape the courts to re­flect a lib­eral world­view.

The Amer­i­can Civil Lib­er­ties Union “has been on a na­tional ram­page to re­move God from ev­ery pub­lic place: the Pledge of Al­le­giance, the Ten Com­mand­ments, plaques in court­houses, the Boys Scouts when they meet on pub­lic prop­erty,” said Phyl­lis Sch­lafly, head of the Ea­gle Fo­rum, a pro­fam­ily group that held a private meet­ing for con­ser­va­tives May 20 in a Wash­ing­ton ho­tel.

“Th­ese sub­jects should get out on the ta­ble so peo­ple un­der­stand what’s go­ing on in the courts,” she said.

ACLU gen­eral coun­sel Peter J. Fer­rara, a for­mer Rea­gan White House aide, said, “McCain said he’d ap­point peo­ple like [Supreme Court Chief Jus­tice John] Roberts and [Jus­tice Samuel] Al­ito. Obama is say­ing he’d name peo­ple like [Jus­tices Ruth Bader] Gins­berg and [David] Souter.”

Con­ser­va­tives con­sider the lat­ter pair to be the two most con­sis­tently lib­eral Supreme Court jus­tices.

“Obama is swim­ming in a sea of left-wing ex­trem­ism with the Rev­erend Jeremiah Wright [Mr. Obama’s for­mer pas­tor] and [vi­o­lent rad­i­cal ac­tivist and Obama ac­quain­tance] Bill Ayers and the rest of them,” said Mr. Fer­rara, whose or­ga­ni­za­tion is a con­ser­va­tive le­gal rights group.

With the me­mory in mind of Pres­i­dent Ge­orge H.W. Bush’s failed prom­ise to ap­point a con­ser­va­tive to the high court and the cur­rent pres­i­dent’s at­tempt to ap­point Harriet E. Miers and brief con­sid­er­a­tion of Al­berto R. Gon­za­les, Mr. Fer­rara added: “There are no guar­an­tees, and you have to take your chances on whom you pick [or pres­i­dent].”

Jeremy Gunn, ACLU free­dom of re­li­gion and be­liefs di­rec­tor, said Mrs. Sch­lafly and oth­ers are play­ing on the am­bi­gu­ity of the word “pub­lic.”

“The ACLU for 60 years has been defin­ing the right of peo­ple to ex­press re­li­gious be­liefs in the pub­lic square. The cross on a church is con­sti­tu­tion­ally pro­tected. Moved to the court­house, it is not. She doesn’t want an Is­lamic cres­cent in front of the court­house, I don’t think. She would un­der­stand per­fectly well why it would be wrong. But when it comes to her own re­li­gion, she doesn’t see it.”

Mr. Obama’s cam­paign did not re­turn a call for com­ment, but in July, speak­ing to Planned Par­ent­hood, the likely Demo­cratic nom­i­nee pres­i­den­tial said he would choose judges who have “the em­pa­thy to un­der­stand what it’s like to be poor, or African-Amer­i­can, or gay, or dis­abled, or old.”

Fed­eral judge­ships have be­come the ul­ti­mate re­cur­ring po­lit­i­cal bat­tle. The Se­nate yes­ter­day con­firmed the sec­ond ap­peals court nom­i­nee of the year, a far lower rate than Repub­li­cans had an­tic­i­pated and un­der­scor­ing the po­lit­i­cal stakes in­volved. Even with Repub­li­cans in con­trol from 2003 through 2006 they had a dif­fi­cult time get­ting ap­peals court nom­i­nees passed in the face of Demo­cratic fil­i­busters.

Con­ser­va­tives said the is­sue is so pow­er­ful that it could be worth look­ing past what they see as Mr. McCain’s other flaws. They have clashed with the sen­a­tor on is­sues such as his sup­port for strict lim­its on cam­paign fi­nance, his teaming with Sen. Ed­ward M. Kennedy, Mas­sachusetts Demo­crat, on im­mi­gra­tion and his votes against Pres­i­dent Bush’s two ma­jor tax­cut pack­ages.

The pres­i­den­tial power to ap­point fed­eral judges was also the com­mon theme of speak­ers and in­for­mal dis­cus­sion groups last week in St. Louis at the Na­tional Ri­fle As­so­ci­a­tion’s an­nual meet­ing, which drew more than 66,000 peo­ple over­all, and at which Mr. McCain spoke.

Con­ser­va­tives said they need to try tac­tics other than ju­di­cial con­fir­ma­tions to ad­vance their agenda.

Mrs. Sch­lafly said the coun­ter­mea­sures dis­cussed at last week’s “train­ing meet­ing” were Congress’ use of the U.S. Con­sti­tu­tion’s Ar­ti­cle 3 to with­draw ju­ris­dic­tion from the fed­eral courts over mat­ters such as the Pledge of Al­le­giance, the Ten Com­mand­ments and the Boy Scout Oath.

She also said Congress could adopt a bill from Rep. Dan Bur­ton, In­di­ana Repub­li­can, to re­vamp how le­gal fees are awarded “to stop this racket of the ACLU’s col­lect­ing at­tor­ney’s fees when they win a case un­der the ex­cep­tion clause, which is in­tim­i­dat­ing to lo­cal school boards or coun­ties which might have a cross on their seal or might have the Ten Com­mand­ments on their wall.”

She said in many cases the school dis­trict sim­ply re­moves the of­fend­ing sym­bol rather than in­cur the le­gal and court costs of de­fend­ing their right to dis­play the sym­bols.

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