If conservative- and libertarian-minded voters aren't convinced by the argument that the GOP is the party of smaller government, then perhaps they can understand the importance of having Republicans in charge when it comes to federal court appointments. The way most Republicans would like to combat America's continuing slide into the abyss of socialism is to take away the most powerful weapon liberals have: the court system.

However, those who would have us vote for the "lesser of two evils" so that the courts can be packed with conservatives are wrong if they think it actually works that way. A Republican president offers no assurance that conservative judges will be appointed. Likewise, a Republican Senate is no guarantee that strict constitutionalists will be confirmed.

Of the nine justices currently sitting on the U.S. Supreme Court, seven - Kennedy, Souter, Thomas, Scalia, Rhenquist, O'Connor and Stevens - were nominated by Republicans. The two nominated by a Democratic president - Breyer and Ginsburg - were virtually unopposed by Republicans in the Senate. (Ginsburg was confirmed by a vote of 96 to 3 and Breyer was confirmed 87 to 9.) This means that Republicans are responsible for the current make-up of the Supreme Court.

One of the recent crucial decisions handed down by this Republican court validated the most tyrannical measures of the Bipartisan Campaign Reform Act. The High Court's ruling in December of 2003 upheld the law's ban on soft money donations - restricting how citizens may spend their own money - and let stand the bill's redefinition of what constitutes political advertising - limiting what citizens may say. As a result, the "lesser of two evils" approach helped weaken freedom of speech in this country.

And let us not forget about Roe v. Wade, perhaps the most immoral and destructive Supreme Court decision of all time. Seven justices supported a woman's right to murder her unborn child. Of those, five - Blackmun, Powell, Brennan, Stewart and Burger - were nominated by Republicans while only two - Douglas and Marshall - were Democratic nominees. The two dissenters, Rhenquist and White, were nominated by a Republican and a Democrat respectively. This is the legacy of the "lesser of two evils," a legacy of judicial abuse that Republicans are, in essence, continuing to encourage.

Of course, judicial abuse isn't limited to the Supreme Court. In a recent example of poor judgment, President George W. Bush appointed William Pryor to the 11^th Circuit Court of Appeals. This was a recess appointment - congressional members were on vacation and were therefore unable to give an up or down vote - but that isn't the issue. The problem with Pryor is that he is an enemy of states' rights and was instrumental in removing Judge Roy Moore from the Alabama Supreme Court.

Moore, as you may recall, was the chief justice who refused to honor a federal court decision ordering the removal of a monument to the Ten Commandments from the Alabama courthouse last year. Pryor, then serving as the state's attorney general, filed ethics charges against Moore. "At the end of the day, when the courts resolve those controversies, we respect their decision," Pryor said. "That does not mean that we always agree with their decision." He claimed that he personally believed the monument was constitutional, but he apparently believed his loyalty to the federal courts superceded his loyalty to the Constitution. States' rights and the cause of liberty were dealt yet another blow, and now our Republican president has rewarded Pryor's obedience with a federal judgeship.

The problem with the judicial system today is that erroneous decisions are allowed to weaken the safeguards against the tyranny of a strong, centralized government. Among these protections is the benefit of states' rights. When the Constitution was ratified it was done with the understanding that the various states would retain most of their sovereignty. The Constitution was carefully written so that the powers of the federal government would be, according to James Madison in Federalist No. 45, "few and defined," while the powers remaining to the states would be "numerous and indefinite."

One fact that is too often overlooked is that most provisions in the U.S. Constitution, including Bill of Rights, were never meant to be binding on the states, a fact made perfectly clear in the 10^th Amendment. Even the 14^th Amendment failed to extend these provisions to state and local governments. It wasn't until the mid-1920s that the Supreme Court began using the "due process clause" of the 14^th Amendment to force the states to abide by constitutional limits that up until then only applied to the federal government.

No court decision - from the Supreme Court on down - has the ability to alter the meaning of the U.S. Constitution. Just as the legislative and executive branches must function within the boundaries set forth in that document, so is the judicial branch prevented from expanding the scope of its own authority.

The Founding Fathers never intended the courts to have the kind of power they wield today. Alexander Hamilton assured us of this in Federalist No. 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

By assuming that the restoration of our republic can only come about with Republicans stacking the federal courts in their favor is to concede that we are indeed living under a judicial oligarchy. Besides, history clearly demonstrates that Republican courts have only served to expand federal control, not curtail it.