Published August 08, 2007
LOS ANGELES – Mitt Romney was right.
No, I’m not switching sides, and I don’t agree with him on many issues, but unlike the loud-mouthed and ignorant Jan Mickelson, talk show host on WHO in Iowa, Romney understands a few things about the Constitution and the rule of law that Mickelson and his kind need to learn.
Mickelson’s conservative gabfest is apparently a must-do stop on any Republican Presidential contender’s effort to win the Iowa caucus and make his way to the White House. Why that is, I can’t say. It should be a much-miss.
I’ll admit that when I read all the headlines about Romney supposedly losing it in an off-air confrontation with a talk radio gabber, I was curious. The way the story came out, the cameras were taping the off-air as well as on-air encounter even though the former Massachusetts governor and Iowa front-runner didn’t know it, and Romney was barely out of the studio before Mr. Mickelson had posted the tape on his website, thinking he had gotten the best of the guy.
So the Romney folks, in what was said to be an effort to make lemons into lemonade, sent it to a friendly blogger to spin in their direction, and within hours, it was everywhere, this being the Internet campaign.
The Romney people needn’t have worried. Their guy looks like a constitutional scholar. Mickelson comes off as a complete fool.
The first skirmish was on the subject of whether the president of the United States is bound by the decisions of the United States Supreme Court. Sound like a no-brainer? Not to Mr. Mickelson.
“I want a president who will tell the Supreme Court when it leaves its constitutional boundaries, to go take a Flying leap, and meet me in the back and we’ll settle this like men. Because that is what this country is crying for, and we don’t have to amend the constitution [to overrule] aberrant Supreme Court rulings, if the guy at top, and the political class will assume their constitutional authority…”
And do what? Place themselves above the rule of law? Pick and choose which decisions they agree with and which they don’t, and only abide by the ones they like?
Does that mean FDR should have ignored the limits on executive power because he didn’t agree? That Eisenhower was free to decide whether to enforce Brown v. Board’s prohibition of segregation? That Nixon shouldn’t turn over the tapes because he didn’t want to? And that President Hillary Clinton is free to disobey the decisions of the Roberts Court after giving the man a pounding on the White House lawn?
Does that mean that President Clinton should have declared his Vice President Al Gore the winner in 2000 because he (and a good many Constitutional scholars) thought the Court was wrong to halt the recount in Florida?
Say goodbye to a stable democracy. It would be ludicrous if so many people didn’t listen to this guy, and the hundreds of others you find around the country who are his clones, and take them seriously. It would be a joke were it not for the fact that all the Republican candidates for president kiss his behind in their efforts to woo his audience.
Fools on both sides of the aisle need to be labeled as what they are, lest people start taking them seriously.
It got worse. Mr. Mickelson, who is neither a Mormon, a lawyer, nor a veteran political strategist or candidate, took it upon himself to instruct Mr. Romney, who is all three, on what he was doing wrong in his campaign and what his religion says.
According to Mr. Mickelson reading of Mormon law, “your Church has as its official position for forever on this issue, it says, A member of the Church of Jesus Christ of Latter Day Saints must not submit, perform, encourage, pay for or arrange for an abortion. If you encourage an abortion in any way you may be subject to Church discipline.”
Gov. Romney tried his best to explain to his non-lawyer, non-Mormon questioner the essential difference between religious law and secular law, between Church and state: “the great thing about this country is that individuals who run for secular office are not implementing the policies of their church, they are doing what they think is right for the nation.”
He cited examples, like the Church’s prohibitions on adultery and drinking alcohol, and asked Mr. Mickelson whether it was his position that because these were staples of Mormon theology, a Mormon politician should be bound to enforce them on everyone else as secular law.
“My religion is for me. And how I live my life. My Church, the leaders of my Church, who I know well, and who I have been, a leader of my Church, say with the same vehemence that we have our own beliefs, we also vehemently believe other people should be able to make their own choices.”
Mr. Mickelson’s response? “No, no.”
“What I was trying to get to,” Mr. Mickelson responded, “was people who will reject your Mormonism on a theological basis, would put up with that and might vote for you, if they thought you were a morally consistent Mormon…. If they don’t think you are a morally consistent Mormon they are not likely to hold their nose…”
Who are these people, who will only vote for someone whose religion they accept “on a theological basis,” who will have to “hold their nose” to vote for someone of a different faith and only be willing to do so if that person is willing to enforce his faith on everyone else in a “morally consistent” fashion?
Forget about the internal cocntradictions in Mickelson’s logic; consider the idea that people will accept a candidate of a faith they disagree with only if he tears down the wall that makes that faith irrelevant to his actions as president?
I know, say Mickelson “who you are going to try to appeal to, and it includes Catholics, and evangelicals,” leaving the unmistakeable impression that Catholics and evangelicals are as biased and intolerant and ignorant as he is.
I hope not. What has been stunning about this campaign, to date at least, has been the willingness of Democratic primary voters to look beyond gender and race and judge their candidates on their merits. In what must be one of the silliest comments she has ever made, Elizabeth Edwards, who I respect a great deal, said recently “we can't make John black, we can't make him a woman” as if being a white male were a disadvantage in politics when to date, it has been a virtual qualification for high office.
In that context, it is particularly distressing to see a so-called opinion leader like Mr. Mickelson openly acknowledging that Catholics and evangelical Christians who vote in Republican primaries are biased against a candidate because of his religious belief, and would have to “hold their nose” to vote for him because they have different views of the Trinity or the Second Coming.
For the sake of Republicans, I certainly hope not. Mr. Romney, and all of us, deserve better than that.
Last night, I found myself at a gathering at Pepperdine University Law School to hear Justice Samuel Alito deliver the William French Smith Memorial Lecture. The topic was advocacy before the Supreme Court; the other participants included Pepperdine Dean Ken Starr, Constitutional Law professor Doug Kmiec, and noted Supreme Court advocate Carter Phillips, who clerked for Chief Justice Burger when I was a law clerk for Justice John Paul Stevens. I had been invited by my old classmate and friend David Hiller, now the publisher of the Los Angeles Times but quite a few years ago, my classmate and buddy in law school.
What all of the participants, as well as my host, had in common was their years working together for Bill Smith in the Reagan Justice Department; I of course, worked tirelessly against Reagan’s election as president. But all of us shared something much larger, that goes beyond politics: respect for the Supreme Court and its processes of decision making and the fundamental understanding that the decisions of the Court are final not because we always agree with them, but because the rule of law requires no less.
Pepperdine University is a Christian University affiliated with the Churches of Christ, but there was not a single mention of religion as a basis for Supreme Court decision making. I’m afraid Mr. Mickelson would have felt very out of place.
Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.