Posted on 03/31/2005 2:49:00 PM PST by CHARLITE
Countless conservatives fear the quickening onset of judicial activism. Challenges that never would have passed the laugh test in days of yore are passing the 9th U.S. Circuit Court of Appeals to find sympathy from our Supreme Court. We all remember Michael Newdow, aptly named “America’s least favorite atheist” by Time Magazine.
The man had the hubris to charge that our Pledge of Allegiance was an unconstitutional government endorsement of religion, due to the inclusion of the phrase, “under God.” While it is unremarkable that a wannabe Perry Mason would allege anything to argue before our nation’s highest court, the fact that Newdow got as far as he did is nothing less than an outrage.
Why such irresponsibility? Why does the 9th Circuit revel in issuing ridiculous decisions, only to be overruled time, and time again? For that matter, why does our Supreme Court feel the need to constantly expand the reach of the federal judiciary? Is it simply a matter of ideology? No. Our top judges are more addicted to power and attention than Bill and Hillary Clinton combined.
Today, influential, well-known judges are treated like rock stars. They tour America, giving a speech here, teaching a class there. Justice Ruth Bader Ginsburg will be visiting Duke Law at the end of January, and even our elite program is excited for her arrival. I can still remember seeing a fellow classmate wearing an “I love Ginsburg” T-shirt on Halloween. It was probably meant to be a joke, but law students and professors truly are judicial groupies.
Instead of fan mail, we write law review articles analyzing the most controversial and edgy decisions. Screaming hoards of Dukies, Yalies, and Harvard lawyers compete for federal clerkships, hoping against hope for the chance to become a judge’s underpaid assistant. When the Supreme Court cites a scholarly article, the lucky professor practically swoons over the realization that one of the Supremes read her paper. The state of our profession is per se absurd.
Self-deprecation aside, legal scholars are only part of the problem. When a mere trial court judge can make national news by attacking the Boy Scouts or declaring the Partial Birth Abortion Act of 2003 unconstitutional, even moderate jurists will be tempted to get creative.
Not to be outdone by the federal bench, state Supreme Courts have taken to the spotlight. The unforgettable decision of the Massachusetts Supreme Court to force their state Legislature to rewrite the law and legalize gay marriage is exhibit number one. Am I the only one left who still believes in three co-equal branches of government and the separation of powers? Judges ordering legislators to pass laws is as blatantly unconstitutional as congress writing court opinions.
Another much-discussed state Supreme Court resides in Alabama, and owes its infamy to former Chief Justice Roy Moore. The Christian conservative insisted on displaying a monument of the Ten Commandments in the rotunda of his courthouse. He ultimately defied a federal judge’s order to remove the piece at the cost of his robes. I wholeheartedly agree that the founding fathers would be livid to find their Establishment Clause being used to prohibit the display of the Ten Commandments in public places. However, I seriously doubt that we should incentivize judges, liberal or conservative, to flaunt the law as it stands.
Notably, Roy Moore paid the price for his decision. He chose to ignore a federal judge and lost his job. What penalty has fallen on the members of the Massachusetts Supreme Court for violating the separation of powers and legislating from the bench? What penalty, if any, do Supremes like Ginsburg fear?
Unlike Massachusetts, where Justices are appointed by the governor, many state’s hold elections to fill their appellate courts. If elected judges want to act as quasi-legislators, at least voters can treat them as such. Unpopular courts can be fired and replaced. However, federal judges appointed pursuant to Article III of the U.S. Constitution have life tenure during good behavior.
For sometime, congress has ignored the good behavior requirement. Even Supreme Court Justices can be removed from office through “impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” If willfully usurping the power of another branch of government fails to meet the threshold for treason, then it certainly falls under the term of “high Crime,” or “Misdemeanor.”
Should congress continue to allow unelected judges to rewrite our laws on whim, even moderate and conservative jurists will fall to the twin allures of power and fame. One controversial decision can earn a lifetime of notoriety. From the judge’s perspective, there is so much to gain and nothing to lose.
As Americans, we have a choice. We can accept the current model of the rock star, activist judge and trade our Constitution for tickets to see the Supreme Court. Or, we can demand that congress impeach the law breakers.
John T. Plecnik (JTP) is a 21-year-old law student at Duke University and a Featured Columnist at The Conservative Voice (www.theconservativevoice.com), Lincoln Tribune, a weekly newspaper in Lincolnton, NC., and various other online and print publications. He earned a Bachelor of Arts in Accounting with a Minor in Mythology and graduated summa cum laude, sharing the title of Valedictorian, from Belmont Abbey College. Email your comments to John at John.Plecnik@law.duke.edu.
Well .. somebody had to say it.
I hope everybody will make a copy of this and send it to their congress person and ask them when the heck they are going to take care of this ..??
And .. we will be holding our breath waiting .. because if they won't do the job then we will do our job and elect someone who will clean this up.
I saw Dick Armey on TV today saying congress didn't have the authority to do anything about the courts. Obviously, he's not the only person who believes that because I heard Nancy Pelosi making the same statement.
Maybe it's because they just don't want to make waves - but the courts have been making tsunamis for years and it's time to stop it.
That kids writes like he's in his 40's!
BTTT
I've always had a lot of respect for Mr. Armey but he's wrong. Perhaps he meant to say that Congress didn't have the spine to do anything about the courts.
Firstly the framers were very, very careful to make sure that Congress controled finances. Cut the judiciary budget to $1 and see what happens.
Secondly, and this is from memory so I may be wrong but Article 3, section 2 specifically tasks Congress to set the jurisdiction of the federal courts.
Google "Constitution Restoration Act of 2004" and see the bill that would have exercised that article and find, sadly, that it didn't get out of commitee.
Thirdly read what Thomas Jefferson wrote about the Judiciary as a despotic branch. Read about Andrew Jackson, when told of a SCOTUS ruling replied "Fine, let them enforce it".
Congress and the executive branch are just as equal as the judiciary....if they would grow a spine.
"Perhaps he meant to say that Congress didn't have the spine to do anything about the courts"
Perhaps you're right - because I always thought he was pretty well versed on what the Constitution had to say.
You are correct - Article III Section 2 does qualify the Congress to set the juristiction of the courts.
I also believe the Congress has to be willing to say to the judiciary - FINE, LET THEM ENFORCE IT. Which we all know they cannot do.
"I saw Dick Armey on TV today saying congress didn't have the authority to do anything about the courts."
Then Dick Armey is not only a liar he's a damned liar!
What the hell did Congress do last Sunday when they expanded the jurisdiction of the Courts if they didn't have the authority? The courts didn't say Congress' act was un-Constitutional, did they? They did what Congress told them to do and they reviewed the Schiavo case.
I hate it when the Democrats treat us like fools.
But it is unforgivable when one of our own tries to treat us like fools.
By the way, Michael Newdow is one of my neighbors and he lives in Sacramento, not Elk Grove as the MSM kept saying last year. The Elk Grove lie was meant to make you think he somehow had more standing against the Elk Grove Unified School District when he didn't.
Well .. before you blow a gasket, I was reminded that maybe Dick Armey was lamenting that the congress didn't have the will to do any more than they did.
And .. please .. can we tone down calling people names .. it's getting old!
And .. you said: "They did what Congress told them to do and they reviewed the Schiavo case". I'm presuming the "They" you are referring to is the courts - and my answer is NO THE COURTS DID NOT DO WHAT THEY WERE ASKED TO DO. THEY DID NOT "REVIEW" THE CASE. Let me clarify that by saying the federal counts only looked at the PROCESS of the trial and all the state appeals. The courts did not "review" the FACTS of the case - which is what congress asked them to do.
And .. then we have this 11th circuit court judge who basically flipped off congress and the American people by saying their court would not hear any more appeals. Translation: Shut up and go away.
So .. let's not panic - there is so much to do - none of us has the time to sit around and call people names. I just want to sit back and take a deep breath for a couple days before I start the new fight to fix our judiciary.
ping
I fear that the Executive and Legisative Branches are ceding powers to the Courts that are extra-Constitutional.
Today's SF Chronicle has a story "Judge tells EPA to regulate ballast water aboard ships" which is clearly another case of legislation from the bench.
These people are out of control. What the hell do we do if Congress and the President will not rein these dickheads in?
I think of it as the "Iranian Model" of government, except that they call their judges, mullahs.
Tom DeLay was on TV today making some very interesting statements regarding how the House judiciary committee has already been drafting legislation regarding the "good behavior" clause in the Constitution; judges will be held accountable for their actions in the Terri rulings.
Rush is talking about it now - and ripping Kennedy who has made the usual smarmy comments about DeLay.
I want to tell you Bridgette on FOX sounded quite amazed at DeLay's statement .. asking if congress can do that ..?? Good grief .. looks like she needs to be the first recipient of the "Rock Star" article.
So .. DeLay has already thrown down the gauntlet - and the dems' heads are probably exploding as we speak.
This action also will affect the 2006 election - because if the repubs get this going - they will need more repubs in the Senate to be able to reign in these out of control, activist judges. It can be guaranteed that the dems will be all over the TV screaming that the repubs are trying to SEIZE POWER.
I hope they focus on the 9th Circus in CA - because these people have made a mockery of the law by striking down everything that the people of CA have VOTED FOR.
It looks like the FIGHT IS ON to rescue America from the out of control courts.
"judges will be held accountable for their actions in the Terri rulings."
And politicians will be accountable for graft, influence peddling, fundraising at Buddhist temples, and etc.
Call me cynical, but I just don't belive anyone in Washington will accomplish this and, even if they do, whatever law they pass to reign in the activist judiciary will just be ruled un-Constitutional by that same judiciary and ignored.
If judges actually get fired, hung, starved to death, tarred and feathered, or even tersely chastised then I'll believe this.
Well .. you're not very realistic. If you want instant retribution against these judges - don't hold your breath.
Remember .. the media will vilify DeLay and all repubs. It will be a LONG HARD SLOG - but we're up to it - and we have to let our congress people know WE EXPECT YOU TO DO THIS REGARDLESS OF WHAT THE DEMS ARE SAYING.
I don't want 'instant retribution' but my opinion is that there will be hearings and committees and they'll beat around the bush at no small expense.
And if they actually do something will they have the nerve to enforce it?
I doubt it.
Well .. I just believe that WE need to compel our congress people to ACT.
We cannot just sit here and whine because they're not doing anything .. and say we have no part to play .. while WE ARE NOT DOING ANYTHING EITHER.
If you have doubts - then those doubts are based on your doubts about your ability as a citizen to influence your own govt. The secret is BUNCHES of us need to keep reminding them daily, weekly, monthly .. we cannot allow them off the hook.
To just walk away and say nothing can be done - oh woe is me .. is just too negative for me.
You are right that nagging them may work up to a point, but their typical behavior is to manage things to death.
Most of our Congresscritters want this whole thing to go away so they can get back to their normal business of aggrandizing power unto themselves and accepting graft in various forms they themselves legalized.
http://www.petitiononline.com/ijg520/petition.html
Petition to remove Greer
There are thousands of FReepers. Aren't there? We MUST start a hootin' and a howlin' and force our representatives to pay attention to WE THE PEOPLE!
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