RUSH: I want to take a stab one more time here at this philosophy that I have of the court, because a lot of people continue to ask me, both in the e-mail and we’ve had some phone calls, “What do you want this fight for? Who needs a fight? That’s not going to accomplish anything! What do you need a fight for?” By the way, I’m grateful for all these questions, because it gives me an opportunity to explain it again, and I will take as long as I need to try to make myself clear. It’s one of the beauties of a radio talk show. You have three hours to get it done. You don’t have to worry about getting it done in 22 minutes on television. But, look, let’s go back to this guy, the first call of the day, the liberal Ben in Charleston, South Carolina. He was a nice guy, but he said that looking to the Constitution for modern application of law is as silly as looking at the Bible. Now, the Bible is not the Constitution, but ignore that for just a second, because his point is — and Justice Breyer probably believes the same thing. The Constitution, as originally written, can’t possibly answer all of our modern issues and problems, and so that’s what gives them the excuse to start searching for validation in foreign law or just to substitute their own personal policy preferences in their decisions and call that law, and that’s horrible, and that is tragic, and it is dangerous. Because the Constitution’s purpose — and this is why I keep saying that we need remarkable, educated people that understand the culture of this court and where it is and how it’s gotten here.
If we’re seriously going to change it, and just tallying votes while great, if they’re the right votes is not the point, because if we don’t do something about this notion that the Supreme Court is the final arbiter on political and social matters in this country we are going to be up a creek without a paddle. That’s not the purpose of the Supreme Court. The Supreme Court is not to decide all of these political issues, and yet that’s what it’s evolved to, and people on both sides of the aisle eagerly await Supreme Court decisions because that’s the final word; that’s where real victory or shattering defeat takes place, and that’s an abomination of the Constitution and of the court. The purpose of the Constitution is not to answer all of our modern issues and problems. It establishes certain principles and institutions through which society can and does make changes. You can amend the Constitution. You can elect people to Congress to pass laws that affect modern life, and the states, they’re supposed to have a major role in governance, too. They’re supposed to have great latitude to do the same thing. Here’s where we differ with the activists, the judicial activists. We don’t believe that nine lawyers on the Supreme Court have the authority to make changes for all of us, not in political matters and not in social matters. Their function is to interpret the Constitution and the law, not make policy. They’re not elected. They’re appointed for life. They’re not accountable. The Constitution says “we the people” not “we the judges.” The judges have appropriated “We the People,” and say it’s up to them. Nine lawyers, nine lawyers in robes!
So the answer to the question, “Well, where does the debate come in?” John Roberts, one of the things that was great about his confirmation hearing — and I played this bite earlier this week. In 44 seconds in an answer to Dick “Turban,” John Roberts nuked Dick Durbin, Ted Kennedy, Patrick Leahy, all of the left’s version of the purpose of the Constitution. He nuked it, in 44 seconds. That’s why you have the debate. You don’t want to just elect a president, do you? You have campaigns. That’s where the ideological case is made. That’s where it’s explained to the American people who you are, what you believe in, what you stand for, what you hope to achieve, what your agenda is. Well, the court is out of control. It is doing things it was never intended to do. So we need nominees that are going to up there and say that to these people so the American people can hear it. Let the Democrats go nuts. We know that the Supreme Court is the last refuge for the left, that’s the only place liberalism can become enshrined in our culture because they can’t win at the ballot box. Well, if it can’t win at the ballot box it ought not be enshrined in the culture, but it’s being done so by virtue of activist judges. So you have a confirmation hearing and you get a judge like Roberts who went up there, looked at Senator Leahy. “The little guy is not always going to win with me. If the Constitution says the big guy wins, the big guy wins. The Constitution is what matters.” He said that to Senator Durbin, not Leahy, and Durbin had no retort to it. Roberts’ 44-second answer was like showing Dracula the cross, and those are the things that advance the movement, not just establish votes and so forth.
If our view of the court is, as conservatives, is “Okay, the court is the final repository for decisions on political and social matters. We’re just going to make sure that we have the votes on that court so that we win,” that’s not a win. That still isn’t changing the culture of the court. That’s not changing its role and structure. What we need are five justices, eventually, who are going to say, “This is none of our business. We’re not taking this case. This is for the states is to decide. This is for the Congress to decide. We’re not taking this case, and not only we’re not taking the case, we’re not going to go elsewhere outside the boundaries of this country, the borders of this country to find an answer to it. That’s not the purpose of this court.” That’s the objective. That’s where hopefully we’re heading. Now, some people may be happy. “If we get a 5-4 majority, 5-4 conservative, then we’ll have all these answers and, yeah, we’ll put a stop to liberalism, but we’re not going to change the culture of the court.” Which means that eventually the libs will get their nominees on and it’s going to swing back and forth. There’s an opportunity here to do much more, and that’s all I’ve been trying to say, and this is not a brief against Harriet Miers and her qualifications, I just don’t know what they are, and I have no idea if she feels this way about it, and if she does, that she would say so.
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