Judicial Activism = Judicial Tyranny

NewsMax ^ | 1/6/05 | Phil Brennan

[BobL]

Agreed - that's why the Dems have to be disposed of (politically) prior to cleaning up the courts.

[Ursus arctos horribilis]

If judges want to engage in political chicanery, let them run for political office. Otherwise, keep the hell out of politics and interpret the law as written and intended, period.

[wagglebee]

If we elected federal judges, the leftists on the west coast would basically be able to insure that the 9th Circuit stays activist forever. At least now we have a chance that Bush or another Republican would have the opportunity to appoint a law-abiding judge to that court.

[xzins]

I agree that careful thought would have to go into the design of courts, their regions of coverage, and how they are elected.

[lizma]

bump for later.

[Phatnbald]

Well arent many judges across the country also politicians ? They have to go out and get votes and they declare a party affiliation.....

how can you draw a construction from the founders when the very basis of the question had not existed at that time- stuff like cloning, or wiretaps, or software patents?

What happens when legislatures overstep their bounds?

Who is to defend the people then ?

I dont like activist judges either, but there are bad laws written all the time....

And what about way-right judges with the same bad attitudes ? I mean, there are those who think that women should have to obey men, no fun on Sundays, etc.

The right to bear arms will never, ever, ever, ever be taken away from Americans.

[BobL]

"The right to bear arms will never, ever, ever, ever be taken away from Americans."

I believe that long ago an activist Supreme Court stated that the Second Amendment applies only to state militias.

Don't think for a moment that our right to own guns will be protected without our vigilence. There are many, many, people who cannot stand that right, and to heck with the Constitution for them.

[Phatnbald]

Im not sure we should call all jurists with opinions that we disagree with "activists"- I mean, a ruling has to DO something, so EVERY judge is activist in a way....

While I agree that we must never stop protecting our right to bear arms, I'm comfortable that there is no way Americans will let a minority overhaul that right- even the leftys that I know agree with that....

[BobL]

In a legal, especially Supreme Court, sense "activist" has a VERY clear meaning. It means finding something in the Constitution that simply doesn't exist, such as the RIGHT to an abortion, or the RIGHT to gay marriage.

On the other hand, there certainly can be conservative activists on the Supreme Court. If the court, for example, found a line in the Constitution and used it to OUTLAW abortion, I would be just as enraged.

The proper answer to abortion is real clear - let the states decide, one-by-one, and the feds should only be involved if it involves their jurisdiction, such as military bases.

[Phatnbald]

I'm not that clear about the greater legitimacy of the states over the federal laws/courts. Could you not extend that to each county, or even municipality? Is the locus of rightness greater if the rules are more and more local ? The events of 1859-1865 showed that some disagreements can be so strong that only the largest authority may properly prevail. Lincoln's Cooper Union speech is probably the best stated case ever regarding what we must do when we believe ourselves to be right...

[BobL]

I can't match your history - although I do believe that Cooper Union still doesn't charge tuition (big endowment).

Slavery was an exception, and I think we were well on our way to extinguishing it without help from activist judges. Same with civil rights.

My question is regarding NOW: What issues is our elected government behaving so immoral on that the courts need to step in? (I hope that I don't get deluged)

[superskunk]

The public, the press and politicians are certainly free to criticize judges, Rehnquist added, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.

That's true, unless the judge's decisions clearly violate the constitution. Judicial privilege should never be allowed to degenerate into judicial arrogance. If it does, then that judge needs to be removed.

[superskunk]

I'm not that clear about the greater legitimacy of the states over the federal laws/courts.

The powers granted to the federal government by the constitution are few and limited. All other powers belong to the states, so long as they don't violate the constitution.

[BobL]

"...but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with."

I don't agree - impeachment is a VERY high hurdle to overcome, as we all learned last decade. If a judge makes a decision (or decisions) that is so egregious, that judge should be removed for cause. I remember a federal judge in Pennsylvania who let a big-time drug dealer off scott-free because he thought cops tend to racially profile - no other reason. Clinton tried to elevate him to Circuit Court - but the Republicans pointed to that decision and he withdrew.

[Phatnbald]

My history is not all that strong, but I'm into Lincolnalia because it was such an extraordinary time. Dont think Slavery was on its way out- it most certainly was not. If hundreds of thousands of Americans would fight to the death for it, it was not going anywhere....

In fact, the last four years have kind of freaked me out because the Red/Blue map looks awfully like the 1861 map of America...both sides are certain they are right....

And although I can imagine terrorists hurting us real bad, they can't ever win- they can't destroy America no matter what (although we should not forget that Russia and China could really do a number on us with nukes)

But if we slip into fear driven Totalitarianism, we could do it to ourselves.

I really have to disagree with most posters on FR that torture is wrong: we didnt have to torture nazis, we didnt have to torture Japanese, and we didnt have to torture Russians during the cold war, and those were all terrible threats too.

The case where we get a guy who really knows where a hidden ticking nuke is is not really gonna happen, and it has nothing to do with running everyday torture houses.

Speaking of, thats what our jail system is in many cases, and its our own people, many cases for just drugs, which is another moral issue... but dont get me started...

[Phatnbald]

you forgot the very important second clause to the line about the powers going to the states- that they also devolve to the people, hence my question about the locality issue.....

[BobL]

You've worn me out - we'll have to just disagree.

Take care.

[Phatnbald]

Funny, thats what my wife says too ;-)

[superskunk]

I agree that impeachment is a difficult process, but I don't think it should be avoided at all costs. I think that if a judges decisions show an overall disregard for the constitution, we should at least try to remove them.

[BobL]

I agree - my point being that if there are enough votes to impeach, then the judge should be impeached, since he obviously ticked off a lot of people in a very important way.