The Lichfield Group

This article appeared in the July 5, 2006 issue of the Washington Times.

President Bush entered office intending to enfeeble congressional or judicial checks on executive authority. The legal theory concocted was that the Constitution erected a “unitary executive” free from restraint or superintendence by coequal branches in exercising executive power.

This article appeared in the November 15, 2005 issue of the Washington Times.

Supreme Court Justice Anthony Kennedy keenly relishes acting as an ethical or moral beacon. He boasts that the High Court’s policy encyclicals endow the Justices with greater power than elected lawmakers, with the possible exception of foreign affairs. Justice Kennedy’s playing Platonic Guardian under the umbrella of the Constitution might be redeemed if he were blessed with uncommon wisdom and dazzling insights. But his observations about the human condition are a best jejune and at worst sophomoric. In sum, Justice Kennedy illustrates why President George W. Bush should stick to Supreme Court nominees in the mold of Bork, Scalia, and Thomas.

This article appeared in the August 23, 2005 issue of the Washington Times.

Through deafening silence, President George W. Bush is squandering an opportunity to influence the United States Supreme Court beyond the simple appointment Judge John Roberts to fill the seat of Justice Sandra Day O’Connor. The President should be employing the White House as a bully pulpit to persuade the public that the Supreme Court should interpret the Constitution according to its original meaning as mandated by the rule of law and separation of powers, not to achieve particular results. Otherwise, in the manner of Humpty Dumpty, the Justices can make the Constitution mean whatever they want it to mean. They can issue moral encyclicals cramming their conceptions of virtue down the throats of the American people. The President should be enthusiastically embracing the original meaning philosophy of Judge Roberts reflected in his voluminous writings in the executive branch and on the bench.

This article appeared in the August 2, 2005 issue of the Washington Times.

The United States Supreme Court regularly transforms its “judicial power” to interpret the Constitution into liberal politics by other means. As the Nestor-like Robert H. Bork trenchantly observes in a new publication, “A Country I Do Not Recognize,” the court chronically expounds sophomoric blather anchored in the signature 1962 “Port Huron Statement” of New Left nihilists: “The goal of man and society should be … finding a meaning in life that is personally authentic,” through a “politics of meaning.”

This article appeared in the July 26, 2005 issue of the Washington Times.

I have known Supreme Court nominee John G. Roberts for 25 years. I had the privilege of working with the Mozart-like prodigy at the Justice Department during the Reagan administration.

This article appeared in the July 12, 2005 issue of the Washington Times.

The U.S. Supreme Court is too important for mediocrities. The justices chronically write ill-reasoned opinions that sow rather than dispel confusion. Insipid minds incline toward major constitutional blunders.

This article appeared in the July 6, 2005 issue of the Washington Times.

Justice Sandra Day O’Connor’s Supreme Court career epitomizes the judicial lawlessness that has regularly stained constitutional law since Chief Justice Earl Warren’s stewardship from 1954-1969. She celebrated standards of interpretation pivoting on discernments unrelated to law or legal education in which judges are no more expert than philosophers, poets, or playwrights. The nation’s maiden female justice also viscerally embraced gender discrimination claims to avenge the authentic prejudice that had blunted her professional ambitions.

This article appeared in the June 28, 2005 issue of the Washington Times.

Amidst the gathering storm over who will become the next chief justice of the United States, one candidate stands forth like an obelisk: Judge J. Harvie Wilkinson of the U.S. 4th Circuit Court of Appeals.

This article appeared in the June 14, 2005 issue of the Washington Times

By a 6-3 majority in Gonzales v. Raich (June 6, 2005), the Supreme Court sustained the power of Congress to prohibit the home cultivation and use of marijuana for medicinal use. In dissent, Justice Clarence Thomas maintained the majority had crowned Congress with omnipotence under the Commerce Clause and reduced states to wards of the federal government contrary to the Founding Fathers.

This article appeared in the April 26, 2005 issue of the Washington Times.

Senate Democrats would eagerly vote to confirm a second edition of Supreme Court Justice Harry A. Blackmun. The opportunity may arise if Senate Republicans shy from ending Democrat filibusters of judicial nominees. By requiring 60 votes for confirmation, a filibuster would force President George W. Bush to compromise his pledge to appoint Justices in the image of Antonin Scalia and Clarence Thomas. (Judicial filibusters also contradict the understanding of Article II, section 2 of the Constitution, which enshrines a simple majority yardstick for judicial confirmations; the practice rests on the alarming principle that the Senate may destroy the judicial branch by refusing to vote on any nominee).

This article appeared in the April 18, 2005 issue of the Florida Daily Business Review

Senator Bill Nelson (D. Fla.) confronts a choice between courage and cravenness over judicial filibusters. The Constitution, political custom, and prudence clamor for the courage to oppose obstructing judicial confirmations for the sake obstruction. . Revolutionary doctrines, partisan loyalty, and recklessness beckon for a craven submission to Senate Democrat insistence on frustrating confirmation of President George W. Bush’s judicial nominees. During the last Congress, Senate Democrats filibustered 10 appellate nominees to prevent confirmation votes on the Senate floor. They have threatened the same wretchedness in the 109th Congress, including nominees to the Supreme Court.

This article appeared in the April 12, 2005 issue of the Washington Times.

The Judeo-Christian Council for Constitutional Restoration sponsored a crackling two-day conference last week to champion the impeachments of Supreme Court Justices who anguish its adherents. Featured orators claimed conservative credentials. But their bugle cry was revolutionary: the destruction of an independent judiciary with the power to declare acts of Congress and the States unconstitutional.

This column appeared in the April 5, 2005 edition of Roll Call. (subscription required)

As Paris was worth a mass for protestant King Henry IV of France, clubby relations with fellow Democrats was worth apostatizing on judicial appointments for Colorado Senator Ken Salazar.

President George W. Bush and Republican Senators should learn from Justice Anthony Kennedy’s preposterous opinion last week in Roper v. Simmons (March 1, 2005) holding unconstitutional the death penalty for loathsome murders perpetrated by juveniles younger than 18. Transforming the Supreme Court from airbrush artistry to principled reasoning in constitutional interpretation—from the rule of whim to the rule of law—will require appointments modeled after Bork, Scalia, or Thomas. Pastel versions will accomplish little or nothing.

President George W. Bush’s judicial agenda is sinking because of his refusal to expend political capital and to risk legislative crumbs to crush the Democrat filibustering of his intellectually gifted nominees.

Chief Justice William H. Rehnquist’s probable retirement in June makes the President’s persistent inactivity over judicial filibusters alarming. His pledge to appoint Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas will be thwarted if 60 votes are required to obtain a floor vote on Supreme Court nominees. Democrats successfully employed the filibuster during Bush’s first term to stymie confirmation votes on ten talented appellate court nominees without provoking the President to twist arms in the Senate to overcome the obstructionist tactic. That same unmasterly inactivity has marked the beginning of Bush’s second term.

This column appeared in the January 31, 2005 edition of Roll Call. (subscription required)

Senator Harry Reid (D. Nev.) should apologize for his ill-informed denigration of Associate Justice Clarence Thomas, a potential successor to Chief Justice William H. Rehnquist. His counterfactual and polemical indictments stain the Founding Father’s vision of the Senate as a cool and statesmanlike body as elaborated in Federalist 63.

Unwritten customs are as pivotal as textual declarations to making the Constitution flourish. As Saint Paul sermonized, the letter killeth, but the spirit givith life.

Mandatory sentencing slashes crime. The multiple decisions of the United States Supreme Court in United States v. Booker (January 12, 2005) obtusely upended mandatory Federal Sentencing Guidelines in the name of honoring both the Sixth Amendment right to jury trial and congressional intent in enacting the Sentencing Reform Act of 1984 (SRA). Congress should race to restore federal mandatory sentences, but with juries finding facts that would determine the severity of punishment.

Career criminals commit the bulk of offenses. Their incarceration forecloses new crimes. Mandatory sentencing also captures non-career criminals. That misfortune is inescapable because criminology is an infant science. Too little is known of the personalities or circumstances that earmark recidivists to risk mandatory sentencing exceptions. But the overbreadth is worth the price of protecting the innocent.

This article appeared in the February 2005 issue of Washington Lawyer Magazine.

President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Judge Robert H. Bork as seemingly inescapable vacancies arise in his second term. Senate Republicans should vote the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable. Both measures are necessary to vindicate the Constitution according to its original meaning and to overcome an airbrush artist approach to interpretation embraced by a majority of sitting Justices. Neither gambit would impair either judicial independence, the separation of powers, or appointment traditions. Furthermore, President Bush would betray his popular mandate of last November if he neglects to nominate strong philosophical conservatives to the Supreme Court, such as Chief Judge Jay Harvey Wilkinson of the United States Court of Appeals for the Fourth Circuit or Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit.

This article appeared in the January 11, 2005 issue of the Washington Times.

Slated to lead the Senate Democrats in the 109th Congress, Senator Harry Reid (D. Nevada) epitomizes the Democrat Party descent from debate to deceit in criticizing conservative Justices of the Supreme Court and distorting Supreme Court rulings. That vertical plunge in intellectual honesty thwarts constructive exchanges over the Constitution and Supreme Court appointments. Senator Reid and his colleagues should either do their judicial homework or remain silent. Nothing is as dangerous as ignorance or propaganda in action.

James Taranto (OpinionJournal, January 3, 2005) has highlighted Senator Reid’s continued assault on Justice Clarence Thomas’ credentials in Reid’s December 26, 2004 interview on CNN’s “Inside Politics.” He owlishly pointed to the Hillside Dairy case as exemplary of Thomas’ unfitness. According to Senator Reid, Justice Antonin Scalia had penned a “well reasoned” dissent in Hillside Dairy dazzling with the earmarks of a Harvard graduate, as contrasted with Thomas’ “poorly written” counterpart smacking of an “eighth-grade” composition. Moreover, the Senator sermonized, Thomas’ dissent had sinned by questioning the Supreme Court’s employment of the Commerce Clause to invalidate state laws that burdened interstate commerce, whereas Scalia had respected constitutional precedents.

This article appeared in the November 30, 2005 issue of the Washington Times.

President George W. Bush has acclaimed Associate Justices Antonin Scalia and Clarence Thomas as models for Supreme Court appointments. Associate Justice Stephen Breyer, the flip side of Scalia and Thomas, underscores President Bush’s judicial wisdom. In a series of lectures at Harvard University on November 17, 18, and 19, 2004, styled “Our Democratic Constitution,” Justice Breyer celebrates an extra-constitutional and pliable standard of interpretation indistinguishable from rule by Platonic Guardians. His teaching that “active liberty” as conceived by a French political philosopher in 1819 should inform Supreme Court edicts makes the case for President Bush’s likely appointees better than the President himself.

Senator Arlen Specter (R. Pa.) has not earned elevation to the chairmanship of the Senate Judiciary Committee. It will stand at the commanding heights of the Republican Party agenda during President George W. Bush’s second term. Three major tasks will confront the chairman: confirming Supreme Court nominees; ending unconstitutional filibusters that thwart judicial confirmations by simple majorities; and, passing legislation to strengthen the President’s power to wage war against global terrorism. In all these respects, Mr. Specter is not the superior choice. The chairmanship should crown a Senator whose loyalties to the Republican Party mainstream are unwavering and enthusiastic.

Chief Justice of the United States, William H. Rehnquist, may soon retire because of ill-health or otherwise. President George W. Bush’s appointment of a successor could mark a turning point in constitutional law every bit as momentous as the appointments of Chief Justices John Marshall, Roger B. Taney, or Earl Warren.

With so much riding in the balance, President Bush should honor his campaign pledge to appoint Supreme Court Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas. Senate Democrats should renounce use of the filibuster against a Supreme Court nominee as a subversion of the constitutional requirement of a simple Senate majority to confirm. If that renunciation is not forthcoming, the Senate Republican majority should vote that such filibusters are unconstitutional and thus unenforceable to prevent a Senate floor vote on a judicial nominee.

If you covet fossilized constitutional law and orchestrated Supreme Court decisions, then cast a ballot for presidential candidate John Kerry.

In appointing Supreme Court Justices, Mr. Kerry avowed during the third presidential campaign debate to insist that nominees affirm the Roe v. Wade (1973) abortion decree and button their ears to any overruling. Indeed, the White House aspirant maintained that his High Court appointees would oppose reconsideration of any precedent that recognized a constitutional right, and Kerry amplified: “I’m not going to appoint a judge to the Court who’s going to undo a constitutional right, whether it’s the First Amendment, or the Fifth Amendment, or some other right that’s given under our courts today—under the Constitution. And I believe that the right of choice is a constitutional right. So I don’t intend to see [Roe v. Wade] undone.”

Movement is afoot to make the Constitution pivot on Marxist-like class distinctions when private property is taken for public use. The endeavor should be smartly defeated. The Constitution was framed under an inclusive political philosophy which celebrated the Benjamin Franklin’s axiom that if we do not all hang together, we shall all hang separately.

The government routinely destroys the blighted housing of the poor for urban renewal by wielding the power of eminent domain. The indigent are uprooted and frequently distraught, but are paid “just compensation” as required by the Fifth Amendment.

Larry Flynt celebrates pornography over political speech. That preference is deplorable, yet understandable.

The United States Supreme Court echoes Flynt’s debauched speech hierarchy. That echo is constitutionally obtuse and incomprehensible. When commercial depictions of sexual acts or organs intended to arouse are more scrupulously protected than issue advertising in federal elections, the First Amendment has been turned on its head and folly has been crowned.

Modern warfare clashes with individual justice. As President John F. Kennedy said of life, war is unfair.

Many of the brave die by friendly fire or enemy treachery.

Terrorists expose innocent civilians to death by employing hospitals, ambulances, or mosques as instruments of war.

Private property destroyed to thwart an enemy attack does not require government payment of just compensation.

The United States must fight global terrorism by Queensbury rules while the enemy indulges every savagery and abomination known to mankind.

That daftness is the subtext of the Supreme Court’s decision last Monday in Rasul v. Bush (June 28, 2004) entitling Guantanamo Bay alien detainees in the war against Al Qaeda and Taliban to challenge the legality of their detentions in federal courts through writs of habeas corpus and sister federal laws. Congress should not tarry in amending these statutes to withhold their benefits retroactively from aliens held in military custody as erstwhile combatants against the United States.