RUSH: So, Senator Specter sends a three-page letter to Judge Roberts, and he “raises pointed questions about two recent court decisions invalidating legislation that Congress passed under its authority to regulate interstate commerce. That power has for decades…” and for those of you in Rio Linda that, means for multiples of ten… Well, that’s going to confuse you. Never mind. “The power has for decades been used to produce expansive legislation, including environmental protections, civil rights laws, and the Americans with Disabilities Act. The current court has been trimming back that authority, however. Democrats have vowed to make interstate commerce a big issue in Judge Roberts hearings and now Senator Specter, a Republican, is suggesting that he shares the Democrats’ concerns.” Well, what’s new about that? He’s doing his best impersonation of Senator Schumer here, if you ask me. “Specter said Monday in a telephone interview from his home in Philadelphia, ‘I think Republicans have a duty to pursue this line of questioning and any relevant line of questioning. He said he was particularly upset that the court, under Chief Justice Rehnquist, had questioned lawmakers’ method of reasoning in striking down laws. Well, that’s just another way of saying Congress is incompetent,’ Specter said. He added, “I’m not suggesting we pack the court but at a minimum, [laughing] the Senate is determined to confirm new judges who respect their role.’ Democrats and liberal advocacy groups caught off guard by Mr. Specter’s letter, were elated.” Were elated. All right, let me give you just a brief explanation of this so that you understand what it is that Senator Specter is upset about.
There were two cases involving the commerce clause that the Supreme Court got right. One was called <a target=new href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287″>Lopez</a>, the other called <a target=new href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5″>Morrison</a>. The court ruled that Congress did not have the constitutional power under the commerce clause to regulate activities that didn’t involve commerce and were not among the several states. The Lopez case involved a federal law banning gun possess around schools. There was no commerce of any kind. The states are very capable of banning gun possession around the schools, and many of them do. Some states are rural and possessing guns around school such as pickups and drive-by parents dropping off their kids at school is very common. Morrison involved a federal law against violence against women. But again, it had nothing to do with commerce. It was duplicative of many state laws that were already on the books. So the commerce cause has been used by the Congress to pass all kinds of laws which don’t apply to the commerce clause such as banning gun possession around schools. I mean they had to have something to justify the law and intercede on the states’ rights to do this and they glommed onto the commerce clause, and the commerce clause — there’s no commerce involved whatsoever, and the court struck that down, said that it’s unconstitutional. Now, this is where it gets interesting, because I think Specter is simply regurgitating Schumer’s absurd view of the Supreme Court’s power — and here’s where it gets contradictory.
The liberals have argued for decades that the Supreme Court has the power to rule on the constitutionality of congressional laws. This is called judicial review, and it stems from <a target=new href=”http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm”>Marbury vs. Madison</a>. So they picked these two cases to argue that failing to uphold these laws shows disrespect for Congress and separation of powers. It’s cockeyed. Because on the contrary; In these two cases, Congress is disrespecting the Constitution itself, not the court, it’s Congress disrespecting the Constitution. Congress passed a couple of laws invoking the commerce clause where there is no commerce taking place, and the Supreme Court said there’s no commerce here. These laws are not constitutional. Now, the liberals on the one hand, including Senator Specter, love the whole concept of judicial review. This is why they’re so hell-bent on finding out what Judge Roberts thinks about overturning precedent. I was watching some idiot on television last night, I was flying home last night, and I had the TV on. It’s just miserable out there on TV at night; it’s really miserable. I’m channel surfing around, and I’ve got some dingbat, I forget who. I don’t even remember the show. I’ve got some dingbat talking about the fact that we can’t overturn — who was…? David Gregory was talking about to Bork, and this was, you know, folks, this was like trying to sink a battleship with BBs and David Gregory is trying to nail Bork in a corner about precedent. “Well, he’s… We gotta worry about precedent,” and it was all about Roe vs. Wade. “Why, if he doesn’t respect precedent, we could overturn Roe vs. Wade!” and Bork rattled off a whole bunch of cases, <a target=new href=”http://usinfo.state.gov/usa/infousa/facts/democrac/33.htm”>Plessy vs. Ferguson</a>. I could have added the <a target=new href=”http://www.pbs.org/wgbh/aia/part4/4h2933.html”>Dred Scott</a> decision.
If the court didn’t overturn itself, if the court never reversed itself, slavery would still be legal in the United States today. If the word of the Supreme Court were final, and the Supreme Court could never overturn itself, the Dred Scott decision would today still be active and we would still have slavery. So the idea! But these are uneducated, uninformed, media people who think they know it all based on Roe vs. Wade. So he’s sitting there and trying to nail Bork down on this business of precedent, and Bork just casually and calmly answers the question, and blows the case out of the park in a grand-slam home run. But the contradiction of this is striking, because on the one hand, the libs love judicial review, and that is when the court can say that’s constitutional and that’s not constitutional. Now all of a sudden the libs are upset about it. When the court said, “You cannot pass a federal law banning handgun possession within a certain area around a school using the commerce clause. There’s no commerce involved here!” They tried to vaguely say, “Well, the gun had to be bought somewhere and the gun might have been bought out of state and brought by a resident into the state,” and so forth. It was a big reach. There was no commerce involved in the actual statute. The Supreme Court overturned it. So the question to Senator Specter, Schumer, and all the libs is, “Come clean with us. Do you believe in judicial review or not? Do you believe that the Marbury vs. Madison decision, in which the Supreme Court says it is going to alone, and single-handedly determine what is constitutional and what isn’t, or do you not? And if you do, why are you focused only on these two cases when the court overturns congressional law all the time, most recently sentencing guidelines.
The court recently overturned sentencing guidelines. “You can’t do that! These are absurd. They’re out of proportion,” and here’s the answer — and that’s why you’re here, folks. You’re here for the answer. I ask the questions, and I answer them. That’s why I don’t need guests and why I don’t need to go on any other show asking me questions because I ask myself the best questions I will ever get asked and then I answer them. The answer is this. Liberals, regardless of party, want the Supreme Court to uphold Congress expanding its power over us and the states just as they want the court itself to expand its authority over us and the states. I think the question that Specter raises needs to be answered by him. The question that Senator Specter is going to pose to Judge Roberts needs to be answered by him. “Which is it, senator? Do you support judicial review, or not? Do you think the court should overturn what they think is unconstitutional, or should they not?” Yes or no. If you think they shouldn’t, then Roe vs. Wade is safe and you have no business complaining about these two cases, Lopez or Morrison. If you think that the concept of judicial review is the court grasping and holding too much power, you should tell us that you think that. But to put the onus here on Judge Roberts, who hasn’t said anything about this other than his responses on questionnaires about precedent and its value? I mean it is just… Folks, this is cockeyed. It is purely cockeyed — and it illustrates the obscene sense of power these senators think that they have. But what it all adds up to is this, and make no mistake about it. When we’re talking about a liberal — I don’t care if it’s a liberal activist or a liberal senator or a liberal judge — they believe in every institution of government getting as big as it can, at the expense of your liberty and mine, pure and simple, no other way to analyze it.
<*ICON*> <font color=”CC0000″><b>Rush’s Supreme Court Stack of Stuff …</b></font>
<a target=new href=”//home/eibessential/judicial_activism.member.html”>(The Battle for the Judiciary)</a>