This column by ACRU Senior Legal Analyst Ken Klukowski was published on September 23, 2012 on Breitbart.com.
A Bush White House insider's memoir discusses a source of electoral energy untapped so far this year. Mitt Romney could have an entirely new route to win votes away from Barack Obama if he talks to the voters about the Supreme Court and federal judges.
Tim Goeglein was the White House liaison to the conservative movement. He's written a book--The Man in the Middle--recounting many interesting stories of the life of a Christian conservative in President George W. Bush's White House.
If there's one criticism of the book, it's that there are no scandalous details. There are stories that could be told about a number of the individuals discussed in the books that would make for interesting reading, but Goeglein doesn't go there.
Those who know the author are quick to tell you that's Goeglein's style, though. The only moral failings he discusses are his own, which he does with laudable candor and humility. For others he chooses to speak of their commendable qualities and positive contributions, leaving to others to discuss the flaws that prove them all too human.
Goeglein understands that the two currencies in politics are competence and loyalty. Having been trusted by George W. Bush and brought inside his White House, Goeglein was not about to repay that trust with a tell-all account of dirty laundry.
Written in a conversational style, Goeglein also makes the critical point rejected by some Republicans--that economic issues are social issues. Speaking of the sanctity of life and marriage and the need to preserve religious liberty, he writes, "we continue to articulate a way of life that is in fact vital for the continued cultural and economic vitality of America... that the best social science will always be in accord with healthy, intact families and biblical morality; that such moral strength gives our country the best outcome for the healthy growth and prosperity of children."
But perhaps the most interesting part of the book for purposes of the 2012 election consists of the chapters dealing with Bush's two Supreme Court appointments. Goeglein received a nightime phone call informing him that Chief Justice William Rehnquist had died, and the book gives a play by play of what followed--along with a similar account when Justice Sandra Day O'Connor announced her retirement--right up through the days that their successors John Roberts and Samuel Alito were sworn in.
These accounts reveal two things relevant to Romney's presidential run against Obama.
First, nothing supercharges the Republican base more than a judicial nominee to the Supreme Court who is held forth as an originalist--a judge who will interpret the words of the Constitution consistent with their original meaning. Such a judge interprets and applies the Constitution as it is written, not according to the judge's personal policy preferences.
The second lesson is that as a whole the American people want judges who constrain themselves to the words of the Constitution. A solid majority of the American people reject judicial activism, whereby judges ignore provisions of the Constitution that they don't like (such as the Second Amendment right to bear arms) or create out of thin air rights not found anywhere in the text of the Constitution (such as rights to abortion and same-sex marriage). Moderate voters line up with conservative voters in wanting judicial restraint from the bench.
Citizens can disagree on issues, but when something is a constitutional issue it means We the People have taken it out of the hands of our elected representatives, removing it from public debate. As a people that enjoys deciding our own course for future events, Americans rightly reject the idea that judges should decide issues by declaring their personal political priorities are rooted in the Constitution, and thus beyond the reach of the voters.
The courts have not been enough of an issue in this election. Tim Goeglein's book contains lessons for what Mitt Romney and his team can do to make the case in a way that will energize his base and also persuade some moderates, and force President Obama on the defense to explain why he thinks activist judges are good for Americans and our freedoms.
Many of the biggest issues of our lifetimes are being decided by the courts, from fiscal issues like Obamacare and government takeover of the banks, to social issues such as religious liberty and racial issues, to security issues like terrorism, military power, and even immigration. The American people deserve to know what sort of judges both candidates would put on the bench, and the impact the Supreme Court will continue to have in our daily lives.