Posted on 04/27/2007 10:23:42 AM PDT by The Ghost of FReepers Past
post columnist |
Court system has been hijacked by "liberal tolerance" |
By Al KNight Denver Post Columnist The Denver Post |
Article Last Updated:01/23/2007 06:50:34 PM MST |
Liberal groups that routinely use the court systems to achieve political ends often speak glowingly of the "evolving standards of decency that mark the progress of a maturing society."
This phrase was first uttered in 1958 by then Chief Justice Earl Warren in a case involving cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.
Since then, these same words have often been quoted in regard to other matters, ranging from the right to have an abortion to the need for affirmative action and even the limits that ought to apply to speech and religious freedom.
It's safe to say that by now, the public is neatly divided into two camps: one that believes the courts should continue to be a major agent of political change and the other that advocates curtailment of judicial power.
Those in the former group have long had abundant reasons to celebrate. Now, those in the latter group have something to cheer about.
A sitting judge in Missouri, Robert H. Dierker Jr., has, in his own words, broken the "code of silence to expose the liberal judicial assault." Dierker's book, "The Tyranny of Tolerance," is a compelling account of how the court system has been hijacked.
The book is a call for Americans to "wrest control of our country and our society from judicial philosopher kings" and their supporters in law schools and the mass media.
What makes the volume particularly interesting is his central argument that a misunderstanding of what constitutes "tolerance" is at the root of what is wrong with the courts.
"The liberal agenda is tolerance," he writes. "But tolerance in the liberal cosmos has a rather intolerant aura ... . Tolerant liberals are the ones who file lawsuits to kick the Boy Scouts out of public parks, to get sodomy made into a constitutional right, ... to allow abortionists to pull babies three-quarters of the way out of the womb and kill them, ... to bankrupt the firearms industry as a means of disarming a free people, to impose racial quotes on employers, to prevent the expulsion of punks from public schools," and so on.
Dierker attempts to answer the urgent question: "How much tolerance can we stand?" He does so by pointing out the very short distance between the assurance of "liberty" (a good thing) and arrival of the merely "libertine" (a bad thing). He also illustrates why there should be a much greater concern with growing judicial control of the public school system, a control that has allowed liberals to enforce, at public expense, the spread of what they call "tolerance." What has happened in public schools with the spread of political correctness, Dierker insists, can't be pleasing to anyone except radical liberals. Certainly it is of no comfort to the average parent.
He rails against the type of case filed just this week by a U.S. AIDS treatment group against the makers of Viagra, a drug for erectile dysfunction. The suit claims that recent promiscuous behavior and the spread of disease by homosexual men was prompted by or was the result of ads for Viagra. This type of "you-made- me-behave-badly" lawsuit has been previously used against the tobacco industry, fast-food outlets and gun manufacturers, among many other targets.
The author also outlines judicial excesses committed in the name of feminism, gay rights, race discrimination, abortion and concern for the rights of terrorists. On the topic of the death penalty, he offers up a particularly confused and disgraceful judicial history and finally asks whether the nation has mistakenly adopted an "evolving standard of idiocy." It's a timely question.
In the end, the Dierker recommends action - or, more aptly, resistance - by the two other branches of government that would act to limit the sweep of judicial authority, recognizing that first public opinion must be better mobilized.
His prescription isn't particularly novel, but his perspective certainly is. At a time when things aren't going particularly well for political conservatives, his book is as welcome as a spring breeze.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post's editorial-page staff. His column appears on Wednesdays. |
I am amazed this got through the squish-head editorial board at the Post. They are consistent in cheering on all such abuses of the judicial system.
“First,public opinion must be mobilized..”I agree completely,unfortunately “public opinion”is shaped and manipulated by the msm aka fifth column.I’m not holding my breath:(
How about the Mercer woman who shot her husband in the back while he lay in bed, pleaded delayed self-defense and was convicted of only manslaughter by an evolved jury; sentenced to probation and time served (about a month arranging bail) and is now suing to regain custody of their two children?
Bad laws and bad government IS paradise for bad lawyers.
Al Knight is always worth reading. His columns appear on Wednesdays. He used to be a member of their editorial board and wrote his own column twice a week. I suppose he just couldn’t take it anymore and left. At you can still read him once a week.
Good grief! I haven’t read anything about that case.
Excerpt
CHAPTER 1
THE CLOUD CUCKOOLAND OF RADICAL FEMINISM
Differences [between men and women], including the products of social inequality, make unequal treatment not unequal at all.
Catharine MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law Journal, 1991
This most illiberal Court has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law.
Justice Antonin Scalia, dissenting, United States v. Virginia (1996)
DO YOU THINK JUDGES should be able to write freely about the law? Do you think that judges should sound the alarm if radicalism threatens to hijack the legal system itself?
Do you think judges should be truly independent of any dominant legal elite?
I believe that judges can and must write freely about the law, and that they have a positive duty to resist political forces that try to take over the legal system. I believe that judicial independence actually means more than never having your salary cutthat it means speaking and writing about threats to that independence from any source.
I have taken an oath to support the Constitution of the United States. I cannot in good conscience sit idly by and watch the destruction of that Constitution by a judiciary that is no longer independent. Despite a tradition of silence by judges on such topics, I can no longer keep quiet about what I, as an insider, have seen happening in, and to, our courts. I may be accused of unethical conduct and threatened with professional discipline, as I was in the past. If that is a risk I must take, so be it. Others before me have taken much greater risks in defense of republican government.
I have witnessed liberal totalitarianism on many fronts as both a lawyer and a judge, but it is fair to say that I probably would not have written this book if I had not had my own, very direct run-in with the tyrants of tolerance. That unpleasant personal experience forced me to do some serious thinking about what is happening to American law, how it is happening, and who is making it happen. And finally it convinced me to write this book, and to accept whatever consequences came from publishing it.
That run-in occurred when I dared confront one of the most active elements of liberalism: the radical feminists.
“MANIFESTING BIAS”
If Social Security is the “third rail” of American politics, then sex is the third rail of American law. Anyone who touches it, except in the manner approved by the tyrants of tolerance, is fried. In this realm, the tyranny of tolerance is best described as rule by the radical feminist cadre of liberalism. Like the rest of the illiberal liberals, femifascists display single-minded devotion to imposing their tyranny on the American peopleand will viciously punish those who resist.
I learned this from painful experience.
In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limitations that now barred the employment claims.
I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.
Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.
In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”
I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.
Although I did not expect liberals to applaud my opinion, and I probably expected a certain amount of controversy, I was comfortable with the complete freedom judges have had historically to say what they thought about the law. When writing opinions, especially on issues where precedent is unclear or conflicting, judges have a unique opportunity to criticize the parties’ theories and to explain or instruct the public concerning the state of the law. I felt particularly comfortable because my dicta did not control my legal analysis of the main issue. I was doing nothing unusualor so I thought. (My opinion is included as an appendix to this book, so you can see exactly what I wrote.)
Prepared for public criticism, I was unprepared for what actually happened. The opinion did not become the subject of open debate, but rather, I learned later, radical feminists began working behind the scenes within the St. Louis legal community to attack my integrity and accuse me of official misconduct for writing the opinion. (Never mind that, to this day, no competent lawyer has contended that I distorted the law in reaching the result that I reached.)
Copyright © 2006 by Robert H. Dierker Jr.
No wonder; I confused two cases.
The Mercer woman was acquited as she had an expert witness who conviced the jury that the gun they struggled over was tampered with by someone before it became letal and had a hair-trigger.
The case I meant to cite was a minister’s wife who had messed up their bank account; her name was Winkler.
letal - lethal, sorry.
What possible use are these tomes? What greater wastes of money than to buy one?
Alec Baldwin's abuse is nothing compared to some of the verbal abuse I've personally seen and heard from school administrators who also use the System (truancy court, police, social services) to sink a family who they know has no money or resources to fight back.
Regarding Alec Baldwin...I think what he said was terrible. However, in context, he was mad precisely because he wanted to have a relationship with his daughter and felt he was being manipulted by her and her mother. Yes he is a brat and there is no place for talking to any child that way. But no way should he lose any parental rights unless he was unwilling to admit his error, he has a history of physical and or extreme verbal abuse, he is not the biological parent, or he has a problem with substance abuse. That said, any teacher who talks like that to kids should be fired. I'm not a Baldwin fan and what he said was horrible, but I imagine he really is being played with by the ex and the daughter. He is being sufficiently and properly embarrassed. Hopefully that will fix the problem.
bump
We need to take back our courts. Unfortunately, about as many liberal judges hvae been appointed by Republicans as by Dimmycraps.
Yes. How pitiful is that? At least conservatives kept a close watch on Bush and didn't let him appoint Miers.
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