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Jewish World Review Feb. 15, 2001 / 22 Shevat, 5761

Thomas Sowell

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Cheap shot justice -- WHILE giving a talk in far-off Australia on February 1st, U. S. Supreme Court Justice Ruth Bader Ginsburg may have thought it was safe to take a cheap shot at a fellow American back home. Nor was she restrained by the fact that what she said was a lie.

Back in 1997, Congressman Tom DeLay (R-Texas) said, "when judges exercise powers not delegated to them by the Constitution, impeachment is a proper tool." He cited as an example, a judge who ordered a tax increase in Kansas City. "Do judges have the authority to raise taxes?" he asked. "Of course not."

In Australia, however, Justice Ginsburg declared: "Tom DeLay has advocated the impeachment of judges who render unpopular decisions that, in his view, do not follow the law." She added, "Mr. DeLay is not a lawyer but, I am told, an exterminator by profession."

Perhaps an academic audience at the University of Melbourne law school might find it amusing to disdain a non-academic, non-lawyer who dared to question one of the anointed, but anyone whose home has been threatened by termites might have a better appreciation of someone who did useful and vital work in the real world, even if not in the rarefied atmosphere of academia.

Justice Ginsburg's disdain was not unrelated to the very problem that Congressman DeLay complained of, arrogant over-reaching by judges who impose their own presumptions on others, while claiming to be enforcing the law.

This issue is much bigger than Justice Ginsburg and Congressman DeLay put together.

Over the past half century, far too many judges -- including justices of the Supreme Court -- have "interpreted" laws to mean the direct opposite of what the written words of those laws plainly said. You don't need a law degree to know that, when the Civil Rights Act of 1964 forbad group preferences and quotas, Justice William Brennan's "interpretation" of it 15 years later in the Weber case to permit group preferences and quotas was an exercise in raw judicial power, based on sheer gall and a defiance of anybody to do anything about it. One of the dissenting justices likened Justice's Brennan's evasion of the law to the great escapes of Houdini.

It is not a question whether group preferences and quotas are popular or unpopular, good policy or bad policy. It is a question whether courts of law become arenas for arbitrary exercises of power -- the very antithesis of law.

The people of this country have long had differing opinions on quotas, abortion, pornography and many other controversial issues. That is why we have elections at all levels of government and differing laws from one state or locality to another. But those who think themselves so far above ordinary people that they ought to impose their own opinions on the unwashed masses have supported judges who turn these political questions into constitutional issues without any basis in the constitution.

At the heart of the constitution is a separation of powers, which limits each branch of government and allows other branches of government to stop it from over-stepping its bounds. Without that, we are at the mercy of whoever happens to be the most ruthless in grabbing power. That is why impeachment has to be a remedy.

According to Justice Ginsburg, "casual use of impeachment would disserve not only the federal judiciary but also the constitutional principles that have seen the United States through its worst crises."

Who said anything about "casual" use of impeachment? What federal judge has ever been casually impeached? Even where there were charges of gross judicial corruption by bribery -- the impeachment of federal judge Alcee L. Hastings a decade ago -- the Congress took weeks of lengthy testimony, evidence and argument before removing Judge Hastings from the bench. Other judges have continued to draw their salaries while behind bars for violations of the law because they had not been impeached.

The danger is not in "casual" removal of judges but in casual lying, such as Justice Ginsburg has engaged in, not only in this attempt to distort the issue of impeachment, but also in other instances of distorting the constitution to impose her own personal ideology as "the law of the land." Nor is she the only one.

Nothing is more dangerous than the idea that some public officials are above the law. If they are, then we don't have law -- and we won't have freedom much longer either.

JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, Basic Economics: A Citizen's Guide to the Economy.


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© 2001, Creators Syndicate