Dec. 9, 2005
 
GUEST COMMENTARY: The Alito Confirmation: A Battle Over Legal Culture
 
By Edwin Meese III
 
Washington, DC (Special to HNN) --Unable to attack Judge Samuel Alito's impeccable credentials, liberal groups and some Senate Democrats are now trying to portray Judge Alito as a "far right" judge who will "threaten civil rights," "undermine women's rights," and "crimp civil liberties."
 
This is the typical scare game these groups play with any nominee who does not have a record of pushing their radical agenda through the courts. Judge Alito's confirmation battle pits his opponents, many of whom are advocates for unrestrained judicial activism, against defenders of the Constitution and judicial restraint.
 
The American people are becoming increasingly frustrated with activist judges who make, rather than interpret, the law. A host of recent examples demonstrate that it's past time for a healthy and open debate over the role of courts in our society.
 
Take for instance the Pledge of Allegiance decision by the U.S. Ninth Circuit Court of Appeals. Based in San Francisco, this is one of the least respected courts in America, as evidenced by its record of activist judges making law from the bench. Its 2003 ruling in *Newdow v. U.S. Congress* held that a California school district violated the First Amendment by beginning each day with the recitation of the Pledge of Allegiance.
 
This alleged First Amendment violation stemmed from the words "under God" in the pledge. Judges on the Ninth Circuit decided that those two words rendered the Pledge a violation of the First Amendment, despite the fact that the daily recitation of the Pledge was voluntary. So, according to the Ninth Circuit, the Pledge of Allegiance, which has been a part of our social fabric for over 50 years, is unconstitutional if recited in school.
 
Consider another outrageous decision from this past summer. Cities have long had the power of eminent domain, by which they could force a property owner to sell to make way for a road, park or other public project. In *Kelo v. City of New London*, the Supreme Court declared that cities could seize private property and sell it to another private party, so long as the action was taken in the name of "economic development."
 
The decision has had immediate and unsurprising results-much to the detriment of ordinary property owners. One month after the *Kelo* decision, the Oakland City Council evicted tire store owner John Revelli from his property and locked the doors to his shop. The city wants to hand over the land to a national retailer ... which plans to redevelop the site ... by putting in a tire store.
 
The message to family businesses everywhere is clear: you could be next.
 
According to published reports, the city has also seized dozens of other parcels so a private developer can make money putting in condominiums and apartments. Not that long ago our government used to crack down on the Mob when it went around making people offers they couldn't refuse. Post-*Kelo*, it's the government that's now getting in on that racket.
 
Sadly, examples of such judicial activism abound. In recent years, our nation's courts struck down laws aimed at protecting children from pornography because of supposed infringements on pornographer's purported "First Amendment rights" and on several occasions ruled that voluntary, student-led prayer at school events and activities is not permissible.
 
With rulings this like these, is it any wonder that polls, such as one by the American Bar Association, show the American people have lost confidence in the judicial system? The ABA found that more than half of Americans thought that "judicial activism has reached the crisis stage." In his confirmation hearings, Chief Justice John Roberts, pledged to follow a more limited role and exercise judicial restraint. His overwhelming majority support in the Senate demonstrates that the days of judicial activism are reaching the beginning of the end. And for the country's future citizens, including home and small business owners, that is refreshing news.
 
Edwin Meese, former United States Attorney General, is chairman of the Center for Legal and Judicial Studies at The Heritage Foundation.