Courts Swing Like A Pendulum Do’

Courts Swing Like A Pendulum Do’
Vol: 9 Issue: 28 Friday, June 28, 2002

So which is it? Is believing in God unconstitutional or not? The Supreme Court ruled yesterday that school vouchers for religious education is Constitutional. But pledging allegiance to America as ‘one nation under God’ is not, according to the 9th Federal District Court of Appeals. One hears of a judiciary that swings left, or swings right, but in America, it swings like the pendulum on a clock, back and forth, without ever stopping in the middle.

Is it Left? Or Right? Or What?

Decades of Democratic rule in Congress resulted in a judicial population whose worldview leans further left than the American mainstream.

When the White House fell to the Democrats after the Reagan-Bush years, the Congress fell to the Republicans in the next off-year election cycle. Consequently, the last decade has witnessed a lot of re-stacking of the judicial benches with conservative jurists.

For 12 years, every judicial appointment made by the Republican White House faced an uphill Congressional confirmation process by the Democratic majority. Many qualified jurists never made the cut. The most famous of these failed GOP appointments gave America a new adjective.

Destroying a judicial candidate’s reputation as a pretext for rejecting a candidate by dredging up some irrelevant past peccadillo and hammering away at it until the candidate is too damaged to even return to his previous occupation was called “borking”.

Why Do You Think They Call It Dope?

Ronald Reagan nominated Robert Bork for the Supreme Court back in 1987. Bork disclosed that as a student in the 60’s, he experimented with marijuana.

The problem with Bork was that he didn’t deny inhaling — by the time the hearings were done, so was Bork.

It was only the fourth time in the 20th century — to that point — that a Supreme Court nominee had been rejected by the Upper House.

Reagan later nominated Douglas Ginsburg, who withdrew his name from consideration after nine grueling days. Ginsburg also admitted to experimenting with marijuana in the 60’s.

The Democratic leadership in the Senate accused the Reagan administration of stacking the court with ‘potheads’ — but this was before 1992.

(Post-1992, being a pothead meant a good job in a new administration who quietly reversed the standing White House drug testing policy to exclude administration officials).

But it was too late for Bork or Ginsburg.

Public Lynching

President Bush’s nominee, Judge Clarence Thomas, was eviscerated during his Supreme Court confirmation.

The Democrats couldn’t find anybody who would accuse Thomas of smoking marijuana in the 60’s, but were able to find Anita Hill. She was Judge Thomas’ devoted legal clerk who followed him from job to job for more than a decade.

Until Thomas went before the Senate confirmation hearing to become the first black Supreme Court Justice.

Hill, (who is also black) testified that despite her record of following Thomas throughout his career, she was a long-time victim of sexual harassment by her mentor.

(Hill testified that Thomas never actually harrassed her directly, but used double entendre and innuendo, making her claims subjective at best).

After lengthy televised hearings in which Thomas claimed he was being subjected to a high-tech lynching, he was barely confirmed by a vote 52-48 in October 1991. Thomas’ reputation never recovered.

But, then came the Clinton years. Previous experimentation with marijuana became an asset, as the shirt-sleeved, tousle-haired policy wonks took over the Oval Office. The GOP took the majority in both Houses, and the shoe was on the other foot.

Fewer judicial appointments were blocked, but Zoe Baird, Kimba Wood, and Lani Guinier were all rejected by the GOP dominated House — Baird and Wood for hiring undocumented aliens as nannies [Nannygate, remember?] and Guinier for being so far to the left that, on removing her name from consideration, Clinton himself said he had “come to realize she endorsed views that I, myself, cannot embrace.” Baird and Wood were under consideration for AG and Guinier as assistant AG.

Still, Clinton saw 369 of his judicial nominees approved, even with the GOP control of both Houses. The Republican record during the Clinton years saw 240 Clinton nominees make it to the federal bench, while only one was rejected.


As a consequence of two decades of judicial appointments based on political ideology rather than judicial qualifications, the American judiciary was populated by judges who were appointed based on their political worldview, rather than their judicial record.

This has all but deadlocked the Supreme Court, as evidenced by the Florida election debacle.

When the Democrats recaptured control of the Senate [with the defection of Jim Jeffords to their side], successful judicial nominations by the Bush administration became newsworthy simply because they were so rare.

Currently, there are almost 100 unfilled seats on the judicial bench. The confirmation process is all but non-existent, as the Democrat-controlled majority has systematically blocked almost every judicial nomination Bush has sent to the Hill.

The US Court of Appeals has four vacancies out of twenty-eight seats. There remain 14 unfilled seats on the Federal Court of Appeals.

An examination of the voting records of the various parties over the past decade is interesting. For example, during the entire 105th Congress (1997-1998), every Democratic Senator voted 100% of the time for Clinton’s nominees. In that same session, all 55 GOP Senators voted for Clinton judges more than 90% of the time. And 12 Republicans joined the Democrats in voting for Clinton’s nominees 100% of the time.

Thus, during 1997-1998, over half the Senate (57 members) supported Clinton’s choices 100% of the time.

Since 2001, the Democrats have opposed Bush judicial nominations 100% of the time.

America’s Judicial Crisis

This is all pretty dry stuff, but the two court decisions handed down this week draw attention to the judicial crisis created by two decades of partisan politics.

The same 9th Court of Appeals in California who ruled “one nation, under God’ was an unconstitutional endorsement of religion also ruled that the religious use of marijuana by the Rastafarians is constitutionally protected.

Meanwhile the Supreme Court heard an appeal of a lower court ruling that denied an Ohio school voucher program for religious schools.

It ruled 5-4 Thursday that with using public funds to pay for students to attend religious schools posed no constitutional problems.

The court endorsed a 6-year-old pilot program in inner-city Cleveland that gives parents a tax-supported education stipend. Parents may use the money to opt out of one of the worst-rated public schools systems in the nation.

So, here we have it.

The Pledge of Allegiance is unconstitutional, says the 9th Circuit, while the Supreme Court says school vouchers for attending religious schools is not.

Are both courts reading the same Constitution?

Actually, the phrase ‘separation of church and state’ doesn’t exist in any of the Founding documents. The phrase originated in an 1803 letter written by Thomas Jefferson who was at the time addressing a very narrow issue that in no way even resembled the modern understanding of the term. Today, this extra-Constitutional doctrine is construed to mean any exercise of religious beliefs in public is unconstitutional.

(Unless one is a Rastafarian with a hankering to smoke a joint).

The Constitution is supposed to be above political considerations, which is why the Founders created an independent judiciary.

How independent is a judiciary whose appointments are based on their political worldview? How independent is a judge who owes his confirmation to a vote in which 100% of one party votes for him and 100% of the other party votes against him?

We’ve seen a glimmer of the Clinton legacy to America; endless scandal, moral equivalency, judicial deadlock, and a partisan loyalty so demanding that America seems to have three classes of patriot — Republican lawmakers, Democratic lawmakers and Americans.

Both parties have focused on grabbing a decisive majority in the Congress to the exclusion of all else at a time when America faces the greatest threat to its liberty in US history.

Previous world wars presented a threat to European freedoms – and by extrapolation, threatened democracy everywhere.

But this one threatens us directly.

Bible prophecy outlines the geopolitical alliances that will exist in the last days. It foresaw a revived Roman Empire, the rise of Islam, the restoration of Israel, the developing global government, and the global economy — thousands of years in advance. But on the question of America’s role in the last days, the Bible is silent.

Where is America in Bible Prophecy?

America is the most blessed nation on the face of the earth — particularly in the years since World War II.

In gratitude for those blessings, we’ve declared God ‘dead’, we’ve declared Him unConstitutional, and we have extended religious protection to every faith except Christianity.

We live in a country in which the President of the US can call Islam ‘a religion of peace hijacked by a few terrorists’ and be applauded as ‘enlightened’ — but the same President cannot praise Christianity for fear of running afoul of a non-existent Constitutional ‘doctrine’ that views ‘separation’ as synonymous with ‘abolition’ — but only when applied to Judeo-Christianity.

Where is America in Bible prophecy? Why are Russia and Europe found there and not America? Scripture does provide a clue in the Words of Jesus.

“For unto whomsoever much is given, of him shall be much required” [Luke 12:48]

This entry was posted in Briefings by Pete Garcia. Bookmark the permalink.

About Pete Garcia

Christian, father, husband, veteran, pilot, and sinner saved by grace. I am a firm believer in, and follower of Jesus Christ. I am Pre-Trib, Dispensational, and Non-Denominational (but I lean Southern Baptist).

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