BOOK REVIEW: Disrobed

Go here to read Richard Poe’s exclusive interview with Mark W. Smith, author of DISROBED.

Fighting Fire with Fire

A Seven-Step Strategy for Retaking the Courts

DISROBED: The New Battle Plan to Break the Left’s Stranglehold on the Courts by Mark W. Smith Crown Forum 272 pages Paperback: $14.95

CONSERVATIVES have been losing the battle of the courts for seventy years. It is time to fight back, says New York litigator Mark W. Smith. In his new book DISROBED: The New Battle Plan to Break the Left’s Stranglehold on the Courts, Smith explains how conservatives can win by fighting fire with fire. We must use the weapons of the left, to wit, litigation and judicial activism.

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

Too often, conservative attorneys plea for “judicial restraint,” 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,” he avers.

Take gun rights, for instance. The case books are filled with 70 years of anti-gun decisions, most of which violate the Constitution. Conservative judges should strike them down, but “judicial restraint” prevents them. It demands that they follow precedent, and so they honor the anti-gun decisions of their leftwing colleagues. The result is a “ratcheting effect,” whereby conservative judges enforce yesterday’s anti-gun laws, while leftist judges busy themselves inventing new and ever-harsher restrictions for tomorrow.

“We must stop playing defense against the courts and instead go on offense,” urges Smith. Going on offense means casting off judicial restraint and embracing judicial activism. It is not enough to restrain leftist judges from further mischief. We must undo the damage already done. Smith proposes this seven-step strategy for retaking the courts:

• STEP 1. 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.
• STEP 2. Appoint reliable ideologues. The left uses ideological “litmus tests” to screen judicial applicants. Conservatives should do the same. 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.
• STEP 3. Use carrots and sticks. Leftist judges are rewarded with fawning media coverage and professional acclaim. Conservative judges endure smear campaigns and harsh ethical scrutiny. Under this pressure, most judges drift leftward, the longer they serve. Conservatives must use the new media, and other resources, to create counterpressure, lionizing conservative judges and vilifying leftist ones.
• STEP 4. Use legal ju-jitsu. 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, too?” asks Smith.
• STEP 5. 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.
• STEP 6. Employ incrementalism. It took seventy years for the left to undo the American way of life. It may take seventy 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.”
• STEP 7. Play to win. “Here’s my strategy on the Cold War: We win, they lose,” said President Ronald Reagan. 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.”

Amen. Every serious conservative should read Smith’s book, and prepare for the legal struggle ahead.



Go here to read Richard Poe’s exclusive interview with Mark W. Smith, author of DISROBED.



The review of Mark Smith’s DISROBED which appears on this page is reprinted here with the kind permission of NewsMax Magazine, which re-published it in September 2006.