c. 1996 Religion News Service

(Charles W. Colson, former special counsel to Richard Nixon, served a prison term for his role in the Watergate scandal. He now heads Prison Fellowship International, an evangelical Christian ministry to the imprisoned and their families. Contact Colson via e-mail at 71421.1551(AT)compuserve.com.)

(RNS)-Those who worry that this year’s presidential campaign will lack lively policy disputes breathed a sigh of relief when Sen. Bob Dole, R-Kan., recently dusted off the old”soft on crime”chestnut and hurled it at President Clinton.

In a speech to a gathering of newspaper editors, the Republican presidential hopeful charged that the president had flooded the courts with liberal justices who are more concerned with the rights of criminals than with those of law-abiding citizens.

The White House, chuckling no doubt, pointed out that the senator had supported all but three of the president’s 185 federal bench nominees, which does take some of the sting out of the Republican hopeful’s charges.

But the real problem is that Dole missed the point. The major issue facing the federal judiciary is not who is or who is not soft on crime, nor who is”liberal”or”conservative,”but which judges support the democratic process and which judges consider it a relic of the past. It is on this point that the battle should be joined.

As a torrent of decisions has made clear, a woeful number of powerful federal judges has determined that it is up to the courts to make laws, often in contradiction to the public will-and, of course, in contradiction to the bedrock principle of representative democracy: that our elected representatives, not unelected judges, make the laws.

Instead of ruling on laws made by legislators, many contemporary judges act like scientists in search of new legal”discoveries.”U.S. Supreme Court Justice Harry Blackmun and his cohorts”discovered”the right to privacy supporting abortion in Roe vs. Wade. In Colorado, the state supreme court discovered a new minority to be protected in a case involving homosexual rights. In the recent 9th Circuit Court of Appeals ruling, Compassion in Dying vs. the State of Washington, Judge Stephen Reinhardt”discovered”the constitutional right to assisted suicide.

All of this notwithstanding the fact that the nation’s founders did not build a system in which judges make law.

In the assisted-suicide case, voters in Washington state had specifically rejected assisted suicide. In an even more blatant disregard of the democratic system, a superior court judge in the District of Columbia determined that a provision calling for voluntary school prayer in the public schools would not be allowed to appear on a citywide ballot. This sort of judicial tyranny cuts short the essential discussions by which the populace reaches its moral consensus, which in turn results in widespread anger, disrespect for authority and perhaps even violence.

Those seeking to understand why judges believe they have the right, and indeed duty, to ignore the popular will on contentious issues need look no further than the 1992 Casey vs. Planned Parenthood decision. At the time it was handed down, many commentators believed Casey was a”moderate”decision, but they didn’t read it carefully enough. For in the opinion, we learned that abortion was a”liberty”protected by the Constitution, liberty being defined as the right to make”intimate and personal choices”that are”central to personal dignity and autonomy.”Furthermore,”the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It was a short path from Casey’s cosmic meanderings to the 9th and 2nd courts’ finding that we now have a right to hire a doctor to help us kill ourselves. Indeed, a judge who is guided by Casey’s reasoning-that the right to self definition is the heart and soul of American citizenship-will conclude that protecting this”right”is the court’s highest responsibility.

At issue in the election is whether the next president will reign in, by his appointments, the trend toward judicial lawmaking. Would that judges took to heart the words of 9th Circuit Court of Appeals Judge Andrew J. Kleinfeld who, in dissenting in Compassion in Dying vs. State of Washington, reminded us of how far off the track we’ve gone.”The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia while all the great questions would be decided by the judiciary. … That an issue is important does not mean that the people, through their democratically elected representatives, do not have the power to decide it.” But Kleinfeld’s view is on the losing end.”We the People”has increasingly given way to”We the Judges.” This issue is critical because, by anyone’s best estimate, the next president will choose at least three, and possibly four, Supreme Court justices, and perhaps a quarter of the federal bench. The debate should not be over who is tough on criminals, but which judges still believe in constitutional democracy.

LJB END COLSON