Tags: Curbing | Abuses | the | Judicial | Oligarchy

Curbing Abuses of the Judicial Oligarchy

Wednesday, 23 March 2005 12:00 AM

The courts have overreached on abortion, gay rights, affirmative action, the death penalty, bilingual education, immigration, enemy combatants, law school admissions, flag-burning, ordering local governments to raise taxes, limits on political speech, prayer and the Ten Commandments in the public square, seizure of private property without just compensation, private sector hiring and firing, protecting child pornography, second-guessing the commander in chief in his conduct of war, and intervening in the electoral process. And that list is not complete.

How did we get to the point where the least democratic branch of the government has taken over the prerogatives of those whom we the people elect to act on our behalf – in city halls, state legislatures, governor's mansions, Congress and the White House? This is not just a matter of depriving the authority of elected politicians. It is a direct assault on our right to have a say in our own government as a free people.

One well-publicized example of this was the judge in Florida who effectively told the elected Congress of the United States to take a hike in issuing subpoenas in the fight to save the life of Terri Schiavo. Similarly, a judge rebuffed a congressional order for a new trial in the case. (The mainstream media also have ignored new information on Schiavo.)

Frustration with an out-of-control judiciary was evident here in Washington recently at a news conference by the Howard Center for Family, Religion and Society. Its manifesto for values voters (who were pivotal in the 2004 election) presented the case for "The Natural Family." A large part of that concern of the panelists was the fact that decisions on these issues have been made by unelected judges over the heads of lawmakers.

I asked the panel what was to be done.

Legislatures have not said same-sex marriage (for example) is OK. Congress hasn't said it. The president hasn't said it. The people, through ballot initiatives, have said the exact opposite. So I asked, Does that raise two possibilities: Impeaching judges who abuse their powers or subjecting judges, including Supreme Court justices, to the democratic process – or limited terms on the court instead of the life terms they now enjoy?

Howard Center president Allan Carlson responded that he is open to "all of the above, whatever works politically." Putting limits on judges "would require a constitutional amendment." As for impeachment, the Founding Fathers had intended it to "become a much more common event than it has become. Very few judges have been impeached. They [the framers] anticipated, I think, that quite a few judges would be impeached as sort of a regular process as a way of dealing with the bad or super-bad judges. That hasn't happened. I think what has been clear is our Constitution has a fundamental weakness relative to the judiciary. [The controls] there have not worked very well."

Janice Shaw Crouse, a Ph.D. and Senior Fellow at the Beverly LaHaye Institute of Concerned Women for America, added that based on her conversations with "people at the White House," she was convinced they are very committed to "a pro-life agenda," and she believed that "within a few months, we're going to see some changes – that those changes will be to our [values voters'] benefit [hopefully to deal with] activist judges."

Presumably, one of those "changes" would be the constitutional option of getting back to the long-held view that confirming judges requires a majority up-or-down vote – as it always did until Tom Daschle (now the ousted Senate minority leader) invented the notion that the filibuster could be used to block judges that liberals feared would consult the Constitution rather than the agendas of left-wing organizations that raise money to elect Democrats.

But back to the original question: How did we get into this predicament where judges – intended as a co-equal branch of government – rule the roost, contrary to the intent of the those who crafted our nation's founding document?

The answer may lie in a political snit at the precinct level between two Virginians two full centuries ago. For that story I am indebted to Mark R. Levin, president of the Landmark Legal Foundation.

In his New York Times best seller "Men In Black" Levin marvels at the irony in the fact that today's Democratic Party claims Thomas Jefferson as its patron saint. But that same 21st century Democratic Party and its allies have supported a strategy of bypassing the elected legislative and executive branches of government, even though Jefferson was victimized by this very same kind of judicial tyranny and spoke out against it.

It was Jefferson who said, "The Constitution ... meant that its coordinate branches [of government] should be checks on each other. But the opinion [Marbury vs. Madison] which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch."

And what brought about the Marbury vs. Madison decision? Levin goes into more detail than space allows here. So we'll try to make a long story short:

The election of 1800 resulted in the defeat of incumbent President John Adams by challenger Thomas Jefferson. Adams' Federalist Party also lost control of Congress. Jefferson's Democratic-Republicans won a majority there.

Adams, as a lame duck, signed the Judiciary Act of 1801 (passed by the lame duck Federalist-controlled Congress) just three weeks before Jefferson was to take over. Adams also sent to the outgoing Federalist-controlled Senate 16 new judgeships, and they were confirmed before he left office.

However, Adams' time ran out before all of the commissions could be delivered to some of the designees. Jefferson blocked delivery of the remaining commissions and when his party assumed congressional control, those lawmakers passed the Judiciary Act of 1802 which, among other things, abolished the 16 new judgeships.

William Marbury, one of the 16, filed suit – along with others – in federal court seeking an order to Jefferson's secretary of state, James Madison, to deliver his commission to him. The case ended up in the Supreme Court, whose new chief justice, John Marshall, had been nominated by President Adams and confirmed by the Federalist Senate.

Marshall, long a rival of Jefferson in local Virginia politics, handed down the decision. Here was his chance to rebuff Jefferson's efforts to put his stamp on the judiciary.

However, Marshall also knew that if he arbitrarily ordered the commissions delivered to Marbury and others just because he was chief justice and Jefferson wasn't, the new president "would order Madison to ignore the Supreme Court's writ and the Court's authority would be seriously weakened." He also feared that if he were seen as using the Court merely to protect his party's interests, Jefferson and his partisans in Congress "could denude the Supreme Court of authority and ... he, as chief justice, could be impeached and removed from office."

Marshall's decision in Marbury, writes Levin, "was a master political stroke. Marshall stated that Marbury, consistent with legal doctrine at the time, had something akin to a property right to the office to which he had been nominated and confirmed. Marshall also said that the federal judiciary should be able to issue an order directing the appointment of Marbury, but because the Constitution did not enumerate such an original right for the Supreme Court, the Court was powerless to do so."

Thus, "Marshall went well beyond the specific rules in the case. He said that the Court has the responsibility to set aside acts of Congress that [in a Court majority's opinion] violated principles enumerated in the Constitution."

The shorthand label given to this Supreme Court-made authority is "judicial review," Levin writes. "And this," he adds, "quite literally, is the foundation for the runaway power exercised by the federal courts to this day. What is far less recognized is that Marbury started out as anything but the ominous precedent it has become."

So, that's what started us on the road to where we are today. The question is what to do about it. What options are available to us in 2005?

As Carlson told me at the recent news conference, the framers intended that impeachment would be the method for controlling judges. It has not turned out that way, and Levin enumerates several ways in which the power to remove judges has been diluted over the years, even though "[k]knowingly doing harm to the Constitution, in my view, is not the sort of ‘good behavior' framers envisioned justifying continuance in office."

One idea he thinks would work is giving judges fixed terms in office, with Supreme Court justices appointed to fixed staggered terms of 12 years, with three years intervening between terms. Sitting judges and justices could be renominated and subject themselves to a new confirmation process.

The "most meaningful" step that could be taken, in the author's view, would be congressional veto power to override Court decisions – perhaps a two-thirds vote of both houses.

Those are ideas to consider. I'm not a lawyer. All I know is that as I write this, judges are making life-or-death decisions for Terri Schiavo, and the Washington Times reports that Senate Majority Leader Bill Frist may not have the votes he thought he had to use the constitutional option (which opponents call the "nuclear" option) to give President Bush's judicial nominees a fair up-or-down vote.

Short term, Levin believes President Bush could give recess appointments to the seven judges the Democrats threaten to filibuster and to any Supreme Court nominees denied an up-or-down vote. Their appointments would run out at the end of 2006, putting the issue squarely on the front burner for the election season of that year, setting up liberal obstructionists to be "Daschled" (if you will) at the ballot box.

It is precisely because the courts have become so politicized by reaching for powers that belong to other branches of government and to state and local governments that judicial nominations have become so emotional and political. The same political left that has cheered the courts' power grabs has seen fit to block judges that won't play their game of creating policies through the judicial backdoor that they cannot get through the legislative and executive officials, who are answerable to the people.

What is going on gives new meaning to Jefferson's words in 1820 – long after he was out of office: "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

Wes Vernon is a writer and veteran broadcast journalist.


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The courts have overreached on abortion, gay rights, affirmative action, the death penalty, bilingual education, immigration, enemy combatants, law school admissions, flag-burning, ordering local governments to raise taxes, limits on political speech, prayer and the Ten...
Wednesday, 23 March 2005 12:00 AM
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