KINDER'S COMMENTARY: LOOKING FOR REMEDIES TO THE REVOLT AGAINST JUDGES

My last offering detailed judicial outrages and a growing revolt against judges that bids to be a major fact of American political life over the next generation. In one sense, of course, conservative angst over judicial activism isn't new: Reaction against liberal rulings of the 1960s-era Warren court helped fuel conservative comebacks including Richard Nixon's two victories in 1968 and '72, the George Wallace insurgency of those years, the rise of Ronald Reagan and much more.

A watershed came in 1987, though, for at least two reasons. First, that was the year Missouri's own Judge Russell Clark violated what moderate/liberal commentator Edwin Yoder called "the aboriginal principle of the American founding" -- no taxation without representation -- in ordering tax increases. On appeal Judge Clark won one and lost one, and this revolutionary overturning of the American founding became enshrined in what passes, today, for American law. Nearly a decade later, neither Clark nor any other responsible party has paid any price for the outrage.

Later that summer brought Reagan's nomination to the U.S. Supreme Court of Hillary and Bill Clinton's former law professor, the distinguished scholar, Judge Robert Bork. Here America was treated to a demonstration of just how completely the left had come to rely on America's courts to enact, in Bork's words, a liberal agenda "that can't be found in the Constitution and that no legislature will enact." The Bork nomination elicited from liberals a campaign of vilification without precedent in American history: A Goebbels-like assault featuring shrill personal attacks, intentional distortions, blatant intellectual dishonesty, witness intimidation, demagoguery and lies. Visiting Cape Girardeau the following spring, Bork told an audience that the fight for his nomination was one small chapter in nothing less than "a war for control of our legal culture."

Into that war's ramparts now comes the splendid Sen. Orrin Hatch, chairman of the Judiciary Committee, pledging to fight the nomination of liberal activist judges in a second Clinton term. Speaking to the Federalist Society, a group of conservative legal scholars, Hatch offered a partial list of recent outrages, all taken from various federal appeals courts just below the Supreme Court:

In Warner v. Orange County, Judges Pierre Leval and Guido Calebresi ruled that it violated the Establishment Clause of the First Amendment -- that it amounted to the unconstitutional establishment of a state church -- for a probation officer to recommend attendance at Alcoholics Anonymous meetings as a condition for a three-time drunk driver's probation.

In the Giano case, Judge Calabresi argued, this time in dissent, that prisoners have a First Amendment right to have sexually explicit pictures of their girlfriends in their jail cells.

In the Brown case, Judge Robert Henry of the 10th Circuit wrote that a transsexual male prisoner might have an 8th Amendment right to receive female hormone injections.

In United States v. Hamrick, Judge Blane Michael joined a dissent arguing that a man who attempted to kill an assistant U.S. attorney by letter bomb wasn't guilty because the bomb was so poorly made it couldn't go off.

In United States v. Long, Judge Martha Daugherty of the 6th Circuit wrote a dissent arguing that a search conducted by police officers was invalid. Even though customs inspectors had discovered child pornography videos mailed to the defendant's address, and the police obtained a warrant and found 19 such magazines, books and drugs at defendant's home, Judge Daugherty contended there was no reasonable suspicion to search there for additional pornographic materials.

At the heart of the never-to-be-forgotten Bork nomination fight, and all these battles, is the simple question: Are we a self-governing people? Or shall we acquiesce in government by judicial command?

Once-unthinkable remedies are now openly discussed. One is term limits for judges, including even sacrosanct federal judges. Another is some kind of supermajority legislative vote to overturn court rulings that offend common sense, our legal heritage and Constitution. Far-fetched? Perhaps. So, though, was the notion, through 200 years of American constitutional history, of unelected judges' raising taxes.

The battle to preserve American liberty, framed as "Who shall judge the judges?", enters a new phase. On its outcome hinges the question of whether your grandchildren will live in freedom.

Peter Kinder is the assistant to the president of Rust Communications and a state senator from Cape Girardeau.