Tuesday, May 27, 2008

Keep G-d in the Pledge of Allegiance

One Nation, Understaffed: Notice the Senate Dems’ silence on the Pledge.
From National Review Online (July 8, 2002)

A week has passed since a Ninth Circuit panel held that the Bill of Rights bars the government from requiring children to pledge their allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under G-d, indivisible, with liberty and justice for all (4 U.S.C. § 4). As the intense public reaction to the panel's decision in Newdow v. U.S. Congress begins to settle, it is important to focus on the deeper crisis in our federal appeals courts arising from the Senate Democrats' campaign to obstruct President Bush from empanelling new appeals-court judges.

I have studied approximately ten thousand federal appeals-court opinions. In all fairness, Newdow is reasonably argued. Senior Judge Alfred T. Goodwin, writing for the majority he comprised with Judge Stephen Reinhardt, the Ninth Circuit's most liberal judge, published an opinion that is coherent and well written, cites appropriate authority, including legislative history from 1954, recognizes and confronts opposing authority, and makes a reasonable argument for the belief that the words "under G-d" infringe constitutional concerns. The opinion assesses the plaintiff's claims by gauging them against three traditional judicial yardsticks for deciding challenges under the First Amendment's Establishment Clause: (1) the "endorsement test" discussed in County of Allegheny v. ACLU (492 U.S. 573 [1989]); (2) the "coercion test," which was introduced in Lee v. Weisman (505 U.S. 577 [1992]); and (3) the classic three-pronged "Lemon test" named eponymously for Lemon v. Kurtzman (403 U.S. 602 [1971]).

On the day the news broke that the "Court in San Francisco" had decided to excise the words "under G-d" from the Pledge, it was fascinating watching liberal United States senators racing to the news microphones to beat conservative Republicans in condemning the panel's holding. Sen. Joseph Lieberman (D, Conn.) reacted quickly: "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it." Sen. Robert W. Byrd (D., W. Va.) stated, "I hope [Goodwin's] name never comes before this body for any promotion, because he will be remembered." And Senate Majority Leader Tom Daschle (D., S.D.) raced to garner headlines by terming the court's decision "just nuts."

The Democrats' race to denigrate the decidedly liberal Newdow opinion was striking. If Sen. Lieberman desires assistance in "remember[ing]" an even more "senseless, ridiculous decision issued by a court at some time," he could be pointed to either of the two opinions handed down by the Florida supreme court during the height of the chad-counting controversies. The first of those decisions was reversed by a unanimous United States Supreme Court. Surely he must remember. Similarly, Sen. Byrd's promise to "remember" the "Goodwin" name if it ever comes up for promotion is so much bluster. Senior Judge Goodwin is 79; what promotion awaits him?

Sen. Daschle, too, speaks in hyperbole. For a federal opinion that truly is "just nuts," he could better turn to the 1996 decision by federal district judge Harold Baer Jr., a Clinton appointee in the Southern District of New York. Judge Baer turned a simple drug trial into national news when he rejected police evidence, including 75 pounds of seized cocaine and four pounds of heroin with a combined street value of $4 million, along with the drug courier's taped confession. The police had uncovered the evidence after becoming suspicious while watching four men rapidly approach a double-parked car with Michigan license plates, load two heavy duffel bags into the trunk while barely speaking a word to the driver, then flee as the officers approached them. In Judge Baer's opinion, the police had no basis for suspicion: "[R]esidents in this neighborhood tended to regard police officers as corrupt, abusive and violent. . . . [H]ad the men not run when the cops began to stare at them, it would have been unusual." After coming under withering criticism, even from Clinton, Judge Baer reversed himself. "Just nuts" indeed.

Thus, there appears to have been an unspoken agenda in the liberals' rush to condemn Newdow. Why the outrage among those who regularly defend the constitutionality of flag burning, justify federally funding "artists" who depict viciously offensive scatological images, and otherwise endorse court decisions that employ casuistry to set recidivist felons loose so they may violate society anew?

It seems clear that the Democrats' hasty race to pledge allegiance under G-d — and note that these primarily were the Democrats of the Senate, not of the House — has been sparked by their fear that Newdow will cast greater light on their role in stonewalling President Bush's nominees to the United States appeals courts. Since entering office, President Bush has nominated at least 30 federal appeals-court judges, but the Senate has confirmed only 9. While rejecting one Bush nominee, the Judiciary Committee has bottlenecked 20 others, primarily for ideological reasons. Of the first 11 judges the President nominated on May 9, 2001 for the appeals courts, 8 remain unconfirmed. In Michigan, for example, Democratic senators Carl Levin and Debbie Stabenow have refused to approve any Bush nominee to the Sixth Circuit. In California, Democrats Barbara Boxer and Dianne Feinstein have bottlenecked the president's choices for the Ninth Circuit. Meanwhile, amid Senate stonewalling, older federal judges continue to reach semi-retirement ("senior status"). In the Sixth Circuit, which normally empanels sixteen active appeals-court judges, there are now seven vacancies.

The vacancies raise concerns that appellate panels are being seated improperly and are not reaching decisions fairly reflecting impartial justice. Consider that many Newdow critics pointed to Senior Judge Goodwin's semi-retired "senior status." In fact, even when the circuits are fully empanelled, semi-retired senior judges often serve with distinction, much as dissenting Senior Judge Ferdinand Fernandez did on Newdow. Nevertheless, by playing politics with the appellate judiciary, Senate Democrats have weakened respect for the judiciary and perpetrated a growing national contempt of court.

At the height of the presidential balloting controversy in late 2000, Justice Stevens wrote in a dissent that many quoted out of context: "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. . . . Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Here we go again. The American flag survived Texasv. Johnson (1989) and United States v. Eichmann (1990), the two Supreme Court decisions that permitted flag burning as a form of constitutionally protected expressive speech. If anything, our flag is more revered today, and the flag-burners played an important part in sparking our passions for the Stars and Stripes. Similarly, regardless of whether the federal courts ultimately adopt the reasoning of Newdow or of the Seventh Circuit's conflicting opinion, Sherman v. Community Consolidated School District 21, the Pledge has taken on new meaning for a generation that had recited it perfunctorily.
Old Glory has emerged with glory. The Pledge will prosper under G-d. Our concern ultimately must focus in the direction that the pledging Senate Democrats fear we will look: at the concerted logjam that blocks the president's appointments to the federal appeals courts. The imperative of an honorable appellate judiciary that impartially guards the law lies at the core of our nation's values. For the sake of the flag and the republic for which it stands, the Senate must begin ratifying and empanelling.

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