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.
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A constitutional right for homosexuals to marry, adopt
children, or teach in grade school may be just around the corner
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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.
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Single-sex combat units, draft registration, football
teams, and private schools may now be unconstitutional
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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.
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The last two years have seen a large number
of opinions that are contemptuous of the
values and prerogatives of the American people
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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.
Steven G. Calabresi, an associate professor at Northwestern University School of Law, worked in the Justice Department and in the White House under President Reagan.
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