Skip to comments.Even Some Judges Oppose Judicial Activism - (interview w. N.C. Supreme Court Justice Paul Newby)
Posted on 04/05/2005 9:05:56 PM PDT by CHARLITE
"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." Thomas Jefferson to Spencer Roane, 1821.
Interview with North Carolina Supreme Court Justice Paul Newby
Justice Newby, thank you for taking the time to acquaint our readers with your judicial philosophy. I just have a few questions for you this evening.
You ran on a platform emphasizing judicial restraint, could you elaborate a bit on how you define this and why you believe it to be so important?
Judicial restraint emphasizes the "rule of law," which means that legal precedent has meaning and must be followed, and recognizes the limited role of courts in our system of government. Judicial activism, which occurs when a judge ignores precedent and imposes his personal views, is a significant threat to our principles of self-government. Our Founding Fathers were wise men who established a system of checks and balances on the powers of government. Legislators are supposed make laws, not judges.
It is the judiciary's role to interpret and apply the law as intended by the drafters. Judges should not view themselves as super-legislators who create, revise or overturn laws at will. No one died and made a judge king. Judicial activism leads to unchecked power in the judiciary, thwarting the rule of the people and undermining self-government. It smacks of elitism and erodes public confidence in the legal system. (i.e. is there law or only the changing opinions of judges?) Our system of law grew out of the English tradition which held that the law, not the king, was supreme. An activist judiciary, in effect, sets itself up as an all-powerful king able to disregard the law and the will of the people.
This results in an oligarchy, a rule of few, which certainly undermines our most basic democratic principles.
This is an untenable situation, but a difficult one to remedy. Who has the power to check a judiciary that seems to hold the final say on every issue?
Our best option is to choose judges who are philosophically committed to and practice restraint. Otherwise, we have problems such as happened in California with the question of the constitutionality of the phrase "under God" in the Pledge of Allegiance. The insertion of "under God" was debated and adopted by the representatives of the people (Congress), and signed into law by the President. If someone objects to the phrase, the proper forum for the debate is Congress, not the courts. It is inappropriate for someone opposed to "under God" to be able to seek out an activist judge to overturn this legitimate law based on nothing more than mere personal opinion.
The problem of an unchecked judiciary is not new as highlighted by this quote from Thomas Jefferson:
"The federal judiciary: an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated."
That is certainly the editorial view of The North Carolina Conservative! One of our main motivations in starting this newspaper was to inform the voters of the views held by those who propose to lead and rule over our state.
The next question then, is obviously, do you believe judges should be appointed to the North Carolina Supreme Court as some have proposed, or voted on by the electorate?
That is an important question. The approach of North Carolina is certainly better than that of the Federal system. In 1868, our state decided that judges would be elected by the voters of North Carolina, thereby providing accountability. An activist judge can be removed from office by a simple vote of the people. However, judges serve 8 year terms which provides stability. In the Federal system, judges are appointed for life, and there appears to be no accountability.
Even though an elected system is preferable, it is not flawless; it requires an educated electorate. Voters must be aware of the candidates' qualifications and their judicial philosophies. During this last election, there were numerous offices on the ballot and few opportunities for voters to learn who the candidates were and their positions. Removal of party affiliation prevented that shorthand form of identification from being available to most voters, and campaign spending rules prevented judicial candidates from reaching voters.
The greatest threat to our electoral system is an uneducated electorate. When we have soldiers fighting and dying for our freedoms, it is not too much to ask that voters sacrifice the time to learn the qualifications and positions of the candidates. Our responsibility as citizens is to be informed before we step into the voting booth. That is why your newspaper can perform a vital service.
That is our goal, and we thank you for making it possible in this case. As you well know, articles such as this are rare in the mainstream media.
Lastly, what, in your personal view - not necessarily as a Supreme Court Justice - are some of the greatest problems facing our state?
Certainly, as a state and nation, we must continue to confront the threat of terrorism; security is vital. Likewise, our state faces incredible economic challenges as many of our traditional industries are being undermined. We must find ways to transition our citizens from our manufacturing and agricultural industries to those which are now emerging.
Even more important though, is the threat to the moral and religious environment of our state. To paraphrase Alexis deTocqueville, America is great because it is good; it will cease to be great when it ceases to be good. We are witnessing an assault on our traditional family values and religious beliefs. In the past, government has recognized the importance of the role of faith and encouraged religious practice and morality. The blessings of God have made our state and our nation strong, prosperous and free. However, activist judges seem bent on removing all references to God from our culture. How long will God continue to bless a nation that renounces Him? We need judges who will respect and honor our traditional values as well as our democratic system of government.
Again, Justice Newby, thank you for your time and your service to our state. Keep up the good work!
About the Writer: Judson Cox is a young man "from the mountains of North Carolina" who writes political commentary for several newspapers and websites. Judson receives e-mail at firstname.lastname@example.org.
Put him on the Supreme Court!
It would seem to me that it would not be without merit to establish a national association similar to the ABA, but certainly not the ABA, but perhaps made up of attorneys who have left the ABA, and headed by someone like Justice Newby to classify judicial nominees regarding their tendency to be activist or non-activist judges. This would be separate from their classification of qualified or not based on strictly knowledge of the law and court procedures, etc. This truly should be a national issue for debate with the purpose of solidifying a solution to one of the most obvious flaws in the US judicial system.
Great Post, I'll second that vote!
Superb idea. We'd need a "David Horowitz" from the legal community for that task........and I already have a candidate. It's John Plecnik, who is a law student at Duke University, and happens also to be a good friend of Judson Cox, the founder, Editor in Chief and Publisher of The North Carolina Conservative newspaper.
John Plecnik's email is: John.Plecnik@law.duke.edu
John writes splendid articles on the abuses of power in the judiciary, and he has the focus and energy to start up exactly the kind of organization that you smartly propose. Let's send him some encouragement!
Open Letter to Congress: Impeach Activist, Rock Star Judges
"For too long, congress has allowed federal judges, appointed pursuant to Article III of the U.S. Constitution, to flaunt the law. Appointed for life during good behavior, these judges, including members of the Supreme Court and 9 th U.S. Circus Court of Appeals, are vulnerable to impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Just like the president, they can be impeached by a majority vote of the House of Representatives and convicted by a two thirds vote in the Senate. The time has come for good conservatives and true patriots to demand that congress impeach the activist, rock star judges.
Last Thursday, Rush Limbaugh gave a nod to this 21-year-old student from Duke. The king of conservative radio read my column, Rock Star Judges Usurp Power for Fame, over the air on his nationally syndicated program. Millions listened. Many replied. And I am left with a sense of hope that we can make a difference. We can force congress to perform its duty and protect the Constitution from a judiciary run amuck."
Item:I heard Rush read John's entire column on the air that morning. I was driving, but I went right to the article upon arriving home, and posted it on FR - not from mensnewsdaily, but from another web journal. It is now posted on quite a lot of e-zines.
It would seem that that is the function of "separation of powers". Judicial review is an artificial construct of the Judiciary that usurps the power of the Legislature and the Executive.
The Founders deliberately made the Judiciary the "weakest" branch of government for a good reason - they saw its potential for harm.
It's not that we need better judges on the courts, but that we need better politicians in Congress to oversee the courts.
Judicial activism will never stop as long as we have Congressmen and Senators who use the "skirt" of the court to hide behind on difficult issues.
You mean, put him on the other Supreme Court! :-)
Amen to that! Paul Newby is the best there is.
New judge won't discuss inquiry
By MATTHEW EISLEY, ROB CHRISTENSEN AND AMY GARDNER, Staff Writers
Now that federal prosecutor Paul Newby of Raleigh has been elected to the state Supreme Court, he won't reveal what has happened with a federal investigation of his campaign.
It doesn't matter, he says, because he's starting his new job as soon as this week.
By law, some federal employees, including Newby, can't run in partisan elections. They are free to run in nonpartisan races.
The Supreme Court race was officially nonpartisan. But Newby sought and trumpeted an endorsement by the state Republican Party.
Someone complained about Newby's campaign activities to the U.S. Office of Special Counsel, which polices the political activity of federal workers. One of Newby's opponents, Rachel Lea Hunter, publicized the agency's inquiry. Newby confirmed the inquiry last month.
But now Newby, 49, won't discuss it. He said the investigation is an internal personnel matter. He also said he won't long be a federal employee, so the probe is irrelevant.
"Part of winning the race is leaving the job," he said. "I'm gone. It's just not a factor."
Newby's take didn't sit well with one politico following the case.
"If you can break the Hatch Act and reap the rewards, what a worthless law that is!" said Christina Jeffrey, a visiting professor of political science and public administration at Coastal Carolina University in Conway, S.C. She is a friend of Hunter's who once ran a Georgia organization called Operation Integrity, which investigated public officials.
"If we were serious," Jeffrey said, "the punishment would be loss of the ill-gotten gains -- to wit, the job one obtained by cheating."
Newby was elected to an eight-year term on North Carolina's Supreme Court. Among other duties, the high court decides whether to punish state judges for unethical conduct.
When asked whether the voting public has a right to know what happened with the campaign investigation, Newby said: "I'm just not going to comment. I don't see that there's a reason to."
Hunter's camp disagrees. "As an elected official of the highest court in North Carolina, one would expect Newby to voluntarily reveal information if he has nothing to hide," said Hunter's campaign spokesman, Cameron DeJong.
Walter B. Jones to Present 'Campus Defender' Award; Major Announcement to Be Made!
Dear Friends and Voters:
As many of you know, I was honored by the Duke College Republicans and Congressman Walter B. Jones on Wednesday evening, as I was the recipient of the first Walter B. Jones Campus Defender award. As I indicated to the group, I am both honored and humbled to receive such recognition from both Congressman Jones and the Duke College Republicans and I will certainly cherish the award.
While some members of the public may not believe that anything can be done or that it is not an important issue, I am here to tell you that IS an important issue, for both students and faculty alike. It does not matter what a persons political affiliation is or the color of their skin, but NOBODY should be subjected to ridicule, harassment, intimidation, threats or other forms of abuse merely for airing their views on a particular issue. You and I may or may not agree with the views expressed. But we are free to express our own views, in support or against. We let the marketplace of ideas compete. It's the essence of our constitutional right under the 1st Amendment right of the US Constitution to speak out. Thats what America is all about.
And Congressman Jones led the way in proving that something CAN be done about this problem. I applaud his efforts and know that he is going to keep fighting for both our right to express ourselves on campus and in the pulpits of our religious institutions.
For those of you who are unfamiliar with the ways of Washington, our legislators frequently slip things into pending legislation. So it was with a senator named Lyndon Johnson. It used to be in America that our rabbis, ministers, pastors and other religious officials could speak their minds in church, including commentary on political matters. Finding himself the object of such criticism, Senator Johnson inserted a provision into a pending bill prohibiting such conduct under the Internal Revenue Code. And we have been saddled with the rule ever since.
Unfortunately, the IRS cannot police the rule and its been haphazardly enforced, depending on the political party in power. Regardless of whether the views are expressed by those on the left or the right, its time to end this nonsense. Congressman Jones will once again introduce a bill to do so. Many prominent individuals, including some who have lent their name to the efforts to get the government out of our educational system, have already joined this effort. For those who are interested, I would encourage you to contact your legislative representative in Washington to lend their support and vote.
As for myself, I took the liberty of using the Duke forum to announce my own plans. Many of you are well aware of the problems that were experienced in the last election. During my campaign tour and in emails or other contacts, I have continued to receive support as well as complaints regarding the existing system. Because of these discussions, I have decided that our state needs to have its own policy/think tank that will be dedicated to the issues that have arisen.
Consequently, I have asked Dr. Christina Jeffrey to assemble and head up the board. I am pleased to report that she has obtained not only prestigious individuals to serve on the board, but also has received commitments from many donors to fund the institute.
The institute will be called the Carolina Liberty Foundation and it will be located in Charlotte. Why Charlotte? I have had discussions with individuals in both North and South Carolina and issues common to both have surfaced. Charlotte is an ideal location to service both areas.
Some of the goals of the foundation will be as follows:
1. To offer a yearly award to the Duke College Republicans that will be given to the recipient of the Walter B. Jones Campus Defender Award to encourage others to get involved and continue standing up for our 1st Amendment rights on our college campuses;
2. To enable educators at all levels to obtain training and certification in liberty studies as well as more traditional course work. It is our hope that Christian educators will look to us for school headmasters, teachers, guidance counselors, coaches, fundraising consultants, etc.
3. To assist good people in grant-writing, management and curriculum development for charter or private schools so that such institutions can be created. We'll also teach, however, independence and the importance of schools positioning themselves to be self-supporting and not beholding to government largess for their very existence.
4. We will have weekend and summer school programs modeled on Morton Blackwell's Leadership Institute--linked to it if possible-- to prepare our college students to enter student government, journalism and politics and then to move on to real government, journalism and politics.
5. We'll set up our own private accrediting board to accredit home schools, not for government purposes, but more for the peace of mind and self-assurance of those who home school. We'll also teach courses for home schoolers at our headquarters as well as online.
6. To offer fellowships to liberty-minded professors so that they can continue their research in an academic/think tank environment. Necessarily, such professors or others can address public policies, politics or other important issues affecting both states.
7. Finally, we will be a resource for students and faculty who are threatened, intimidated or otherwise have their constitutional rights violated by faculty and administrators. We will find allies and lawyers for them and help them to fight back.
Its an ambitious program.
Another idea that has been developed is one of either aligning with or creating a political action group. I have been approached or contacted by many good people who seek political office. However, they complain of a lack of party interest, support and funding. The political action committee will help find and fund liberty-minded political candidates, regardless of the persons political party affiliation.
The third issue is one regarding my own candidacy. Some critics believe that I should perhaps aim my sights lower and that the Supreme Court of our state is out of reach. As I previously noted, being a trial judge is not the same as appellate work. I have given the idea thought and I simply am not interested in trial work at this time. I also served for ten years on an intermediate appellate court. I have done that. I now want to serve at a different level. That leaves our state Supreme Court.
Its sad to say, but I continue to hear complaints of corruption and other misconduct. I also hear complaints from our judicial system about the lack of funding. One way to do something about the existing system is through the office of the Supreme Court. The next opening will be in 2006 when Chief Justice Lake retires. I am pleased to announce my candidacy for that seat.
PAID FOR BY RACHEL LEA HUNTER FOR SUPREME COURT
P.O Box 332 | NW 1251 Maynard Road | Cary, North Carolina 27513
Ph. (919) 386-0246 | Fax 877-572-9790
Dear Friends & Voters:
I thought that I would provide an update. I have received many offers of prayers and good wishes. Thank you all. Your efforts are sincerely appreciated.
I have watched the party gyrations and have noticed more internecine fighting among the county GOP, especially in Wake and Orange Counties.
Another individual is bemoaning the fact that a scant 40 people showed up for their annual dinner. It takes no imagination to wonder why when the NC GOP and its county affiliates are in such disarray.
All it takes is a few of them to show up at a precinct meeting, get elected to some post and they are in charge of things. They then proceed to ban or attack or otherwise challenge anyone else who is not of like mind. Such is how autocrats and tyrants behave.
Until the party becomes something other than a private club, until the party and its thugs stop attacking decent individuals, until the party elects real leaders, nothing will change. I am waiting until the party elections. If the same old crew is in charge, I will do as many others have already done and leave.
Speaking of the party, our current leader, Mr. Blount has sounded off once again. One of his current missives rails at our state attorney general for defending UNC. Although his notice of the issue of "college abuse" as I've termed it is welcome, his rant on the attorney general is misguided. One may take issue with Mr. Cooper over certain things, but defense of the university is not one of them. Last time I checked our laws, they indicated that a state school, as an agency of the state, must be represented by our state attorney general. And an attorney is bound by ethical rules to zealously represent his client. Also, the client is the person who is control of the litigation and an attorney is bound to respect the clients wishes. One would think Mr. Blount would know these simple facts. It again substantiates my belief that we need a change on Hillsborough Street.
I also observed that Vernon Robinson has thrown in his name in the race for the chairmanship. Although I have been accused in various places of controlling Mr. Robinson, nothing could be further from the truth. Its my understanding that he was acquainted with my campaign manager, Cameron, before I ever arrived. He and Cameron talked and Cameron simply sent out a press release on his behalf that inadvertently had my name on it from my campaign. Other than the connection of Cameron, I do not know him and cannot comment on his vices or virtues. I do not know if he is the one to lead the party or not, but things are so bad, that any change is a welcome one. Therefore, I wish him well in his endeavors.
I also have finished (finally!) the Federalist Papers and have re-read Frederic Bastiat's The Law. I've now moved on to the writings of Thomas Jefferson. In reading these books, some things have struck me. As I previously mentioned, our times and culture may have changed, but not human nature. Mr. Jefferson and others were keen students of this fact and knew the good and bad aspects of human nature. That is why the Constitution was devised. As Thomas Jefferson said, "In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution."
How far we have strayed from that simple idea as embodied in that document. Those in the so-called "Republican" party were adherents to a smaller federal government, less taxes and less intrusiveness by the government. Not so anymore. As the chairman of the Republican party once said, the aim of the Republicans is just to not spend as much as the Democrats. In fact, non-war spending under the Bush administration has grown twenty percent (20%), compared to the previous administration. Our government commenced a war on pretenses that those on the left and the right have challenged. Contrary to what my detractors have said, the government has locked up citizens (anyone remember José Padilla?) and granted to itself all kinds of powers that were previously unthinkable.
What doctrine is that? If there is a hope for the future, we need to stop squabbling over meaningless things and return to our roots. Until we regain that footing and adhere to our principles, I fear for the party and our country.
Regarding my health, I have met with my doctors and surgery is scheduled for May 5 at Duke University Medical Center in Durham, North Carolina.. The surgery itself is gruesome to describe. It will be a long procedure and an even longer recovery. But as my doctor said, I do not really have any options in this matter. The tumor has robbed me of not only my hearing, but has begun to affect my ability to taste food, has caused a tingling sensation on the right side of my face and results in a real loss of balance when I am tired. However, after my surgery and recovery, I plan to be back in an action and will keep you posted as to my progress!
PAID FOR BY RACHEL LEA HUNTER FOR SUPREME COURT
P.O Box 332 | NW 1251 Maynard Road | Cary, North Carolina 27513
Ph. 877-893-3713 | Fax 877-893-3713
Copyright 2004. RACHEL LEA HUNTER FOR SUPREME COURT