A three-judge panel of the Ninth Circuit Court of Appeals surprised most conservatives and even a few liberals when it ruled that California’s recall election could not go forward on October 7 as scheduled, overruling a district judge and effectively overruling the California courts, which had rebuffed all legal challenges to the recall, and California voters who had followed the provisions of their state’s constitution to put the recall on the ballot.  The panel agreed with a bevy of leftist and minority groups, which had argued that the use of punch-card ballots in California counties with large minority populations made any election held before those voting machines were replaced a violation of both the 14th Amendment’s Equal Protection Clause and the Voting Rights Act.

The decision was, of course, absurd.  It should not have come as a surprise, however, because it faithfully represents trends in American law and politics that have been apparent for decades.  For at least 40 years, the federal judiciary has been the indispensable ally of an increasingly ascendant leftism.  The federal courts have both imposed leftist ideals on an initially recalcitrant public—as in Roe v. Wade and this summer’s decision discovering a hitherto unknown constitutional right to homosexual sodomy—and protected leftist gains from political or legal counterattack (as in the decision striking down California’s Proposition 187 or this summer’s Supreme Court decision sanctioning government discrimination against whites).  For more than 40 years, the federal courts have stopped viewing the Constitution as a mechanism to protect states from the encroachments of federal power and have viewed it instead as a means to increase the power of the federal government, in general, and the federal judiciary, in particular.

It is not ironic but fitting that the precedent cited by the panel was the favorite recent Supreme Court decision of the “mainstream right,” Bush v. Gore—fitting, because the ability of the federal judiciary to move America to the left has been made possible by the feckless opposition of the mainstream right to what has become an imperial judiciary.  As I wrote in these pages nearly three years ago, “The U.S. Supreme Court’s attempt to ensure the ‘equality’ of all votes is sure to invite further federal intervention in state elections.”  Such concerns were brushed aside in the euphoria to speed up the ending of the Clinton years and the coming glory of a second Bush administration.  Now, however, the American people have to bear the brunt of a judicial weapon that can be wielded whenever a leftist politician loses a close election or is threatened by an uppity electorate.

The reversal of the panel’s decision by the entire Ninth Circuit hardly removes this weapon from the arsenal of the left, despite claims at National Review Online that “The sun shines brighter on the golden republic today because in court, law prevailed over politics.”  The Ninth Circuit’s decision mainly turned on the plaintiffs’ failure to meet the exacting standards required for injunctive relief, heightened in this case because the plaintiffs were seeking to enjoin an election where voting (by absentee ballot) had already begun.  The Ninth Circuit did not reject the Equal Protection claim based on Bush v. Gore: “That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.”  And the court noted that the plaintiffs “have shown a possibility of success on the merits” of their claims under the Voting Rights Act.

One of the greatest challenges facing true conservatives is to devise a new strategy that will rein in the federal judiciary and reduce its power to constitutional dimensions.  The strategy that conservatives have been using for decades—patiently waiting for Republican politicians to appoint the right type of judge—is an abject failure.  At least since Nixon, Republican presidential candidates have promised to appoint conservatives to the bench.  The result: a constitutional right to homosexual sodomy invented by Reagan nominee Anthony Kennedy, who was described to me by a high-ranking Reagan-administration official at a Federalist Society gathering in 1989 as being “as good as Bork.”  So far, President Bush has not even been able to figure out how to get reliable conservative nominees through Senate confirmation.  Until we figure out how to replace our imperial judiciary with a republican one, the left will continue to win the Culture War and most political battles as well.