Conservatives who contemplate sitting out the November 7 elections should quickly consider the number five.
Five – that is how many U.S. Supreme Court Justices will reach age 70 or older between this November 7 and the next nationwide election in November 2008.
John Paul Stevens, the eldest justice, is currently 86. He'll be almost 89 before the next President is inaugurated, and statistics alone augur for a vacancy in his seat. Justice Ruth Bader Ginsburg is now 73, and will be almost 76 before Bush leaves office. Justices Scalia and Kennedy are both 70 today, and will be 72 in January 2009. Justice Breyer is currently 68, and will be 70 before the 2008 election. Justice Souter won't quite reach 70, but he'll be close: he'll become the sixth justice 70 or older on September 17, 2009.
Therefore, the likelihood that President Bush will nominate multiple Supreme Court justices before he waves farewell from the White House lawn is very high.
Accordingly, the Senate balance following this election will play a critical role in shaping the Supreme Court for decades to come. Given the degree to which the courts increasingly govern our lives, the difference in one or two Senators may prove pivotal.
In recent years, the judicial branch's increasing importance is directly proportionate to the frequency with which liberals' social engineering schemes have been rejected in democratic debate and the marketplace of ideas.
As the left has seen its political agenda rejected by the public time after time, it has increasingly retreated to election-proof judges to arrogantly impose it from the bench, immune from recourse by outraged citizens.
For example, consider for a moment the growing portion of the public agenda dictated by the courts with each passing year. Renegade judges and Supreme Court justices have dictated that overseas terrorists are entitled to the same constitutional protections as petty domestic criminals; that the term "under God" be removed from the Pledge of Allegiance; that tobacco companies selling a legal product are liable for the voluntary choices that consumers make; that irresponsible plaintiffs can sue restaurants for their obesity; that a colorblind society is somehow unconstitutional; or that private citizens literally cannot advocate the election or rejection of candidates within the weeks preceding an election.
Indeed, the 2000 presidential election itself hinged upon the composition of the Supreme Court, something scarcely imaginable before our societal litigation explosion.
Simply put, judicial fiat has replaced democratic debate, political questions morphed into legal battles.
The question is thus: will the Senate balance allow confirmation of responsible justices, who will apply law rather than dictate law? Will our next justice be a John Roberts, or a David Souter? A Clarence Thomas, or a John Paul Stevens? A Robert Bork, or an Anthony Kennedy?
Without a conservative majority in the Senate, restoration of a Supreme Court that will focus on interpreting law, rather than inventing law to suit its elitist preferences, will be next to impossible.
To illustrate, recall the utterly shameful Senate battle over Judge Robert Bork's 1987 nomination. Judge Bork, an extremely well-qualified and humble jurist by any measure other than Joe Biden's and Ted Kennedy's, was nominated by President Reagan to replace Justice Lewis F. Powell, Jr.
Keep in mind that several years earlier, the Senate had unanimously confirmed Judge Bork to the D.C. Circuit Court of Appeals. Further, not a single one of Judge Bork's previous majority opinions, numbering over 100, had been reversed by the Supreme Court.
On naked political grounds, however, the Democrat-controlled Senate rejected Judge Bork. In doing so, the Senate commenced its descent into raw partisanship dictated by left-wing interest groups, and the term "Borking" was coined. President Reagan ultimately retreated to nominate Anthony Kennedy to the vacant Supreme Court seat.
The glaring distinctions between Judge Bork's fidelity to the Constitution's text versus Justice Kennedy's all-too-frequent judicial fiat have become clear since that time. Among other things, Justice Kennedy explicitly defended the use of foreign legal opinion in deciding American constitutional questions such as capital punishment. Also recall Justice Kennedy's endeavors into according foreign terrorists the Geneva Convention rights previously reserved for legitimate, uniformed soldiers.
The Senate's balance made all the difference.
With an eye toward the collective age of the current Supreme Court, a Bush-led alteration of the Court's membership could begin to correct this menacing trend of judicial arrogance. Senators like Ted Kennedy and John Kerry, in contrast, aim to prevent confirmation of nominees like John Roberts or Samuel Alito, and preserve the left's ability to do in court what it can't do through elections.
That is reason enough to vote on November 7.October 26, 2006