BOOK REVIEW: The Battle for Our Courts

by Richard Poe
Tuesday, October 24, 2006
8:10 pm Eastern Time

The Battle for Our Courts

by Richard Poe

September 2006

AFTER CONSISTENTLY losing the battle of the courts for 70 years, it’s time to fight back, says New York litigator Mark W. Smith. In his just-released book, Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts, Smith explains how conservatives can win by wielding the weapons of the left: litigation and judicial activism.

“The right will never thwart the liberal legal assault until we abandon our own self-defeating tactics,” warns Smith, who also wrote The New York Times best seller, The Official Handbook of the Vast Right-Wing Conspiracy.

Too often, he writes, conservative attorneys employ the losing strategy of pleading for “judicial restrain”, urging judges to stick to the letter of the Constitution, to the original intent of the framers, and to the authority of legal precedent. This is a losing strategy, says Smith.

“Even if we could miraculously convince every judge in America that he must never overstep his authority and must simply `follow the law’, we’d have done nothing to get rid of all the existing liberal legal precedents”, says Smith.

Smith uses gun rights as an example. The casebooks are filled with 70 years of anti-gun decisions, most of which violate the Constitution, he says, but “judicial restraint” prevents conservative judges from striking them down. It demands that they follow precedent so they honor the anti-gun decisions of their left-wing colleagues.

He describes the result as a “ratcheting effect”, whereby conservative judges enforce yesterday’s anti-gun laws, while progressive judges busy themselves investing new and ever-harsher restrictions.

“We must stop playing defense against the courts and instead go on offense,” urges Smith. He says it’s not enough to cast off judicial restraint and to embrace judicial activism. It is not enough to restrain leftist judges from further mischief — it’s important to undo the damage already done. Smith proposes a seven-step strategy for retaking the courts:

– Set clear political goals. Whether we like it or not, judges are “de facto legislators”, writes Smith. Conservative judges must understand that their mission is to advance the conservative political agenda.

– Appoint reliable ideologues. The left uses ideological “litmus tests” to screen judicial applicants. Conservatives should do the same, he says. Every judicial candidate should be required to divulge his views on the big issues, such as property rights, immigration, gun rights, national defense, and so forth. Only conservative loyalists should win appointments.

– Use carrots and sticks. Smith suggests that leftist judges are rewarded with fawning media coverage and professional acclaim, while conservative judges endure smear campaigns and harsh ethical scrutiny. Under this pressure, most judges drift further left the longer they serve. Conservatives must use the new media, and other resources, he says, to create counter pressure, lionizing conservative judges and vilifying leftist ones.

– Use legal jujitsu. Through judicial activism, conservatives can turn the leftists’ favorite legal precedents against them. “If a judge can force a state or city to raise taxes, why can’t a judge order a state or city to cut them?” asks Smith.

– Litigate. Judges need cases in order to make rulings. Litigators supply those cases. Currently, most litigators serve the left because that’s where the money is. Once conservative judges begin aggressively awarding damages to victims of leftist social policies, many litigators will switch sides in order to get a slice of the pie.

– Employ incrementalism. It took 70 years for the left to undo the American way of life, Smith argues, and it may take 70 years to restore it. Judicial activists of the right must be patient, fighting the left “one case, one decision, and one precedent at a time.”

– Play to win. “Here’s my strategy to win the Cold War: We win, they lose”, President Reagan once said. Conservative jurists need to become “judicial Reagans.”

“Allowing the left to pillage our cities with the weapons of judicial activism while we stand there offering the flowers of judicial restraint is a path to dismal failure”, writes Smith. “A new tactic is required.”

Richard Poe is a senior fellow at the David Horowitz Freedom Center. His recently released book, co-authored with David Horowitz, is The Shadow Party.

Posted to this page 10.24.06