Jewish World Review March 9, 2005 / 28 Adar I, 5765
High Noon for judges: Part II
One of the big confusions in the impending Senate fight over the
confirmation of judicial nominees is that this is an issue about "liberal"
judges versus "conservative" judges. The vastly more important issue is
whether people who go into court should expect their cases to be decided on
the basis of the law or on the basis of the particular judge's own
The more we can keep judges' philosophy out of our legal system,
the more we approach the ideal of "a government of laws and not of men." But
we have been moving in the opposite direction for too long already and
recent court decisions, including those of the Supreme Court, show a
continuing trend toward judicial activism, relying on notions outside the
law and even outside the country.
Liberals have rooted for judicial activism because this activism
has favored liberal causes and liberal views on such issues as abortion, the
death penalty, gay marriage, and racial quotas. But activism can be used by
any judge for any purpose.
When Chief Justice Roger Taney said that a black man "had no
rights which the white man was bound to respect" in the Dred Scott decision
of 1857, he was turning his own personal opinion into the law of the land.
As dissenting justices in that case pointed out, free blacks had exercised
legal rights, including the right to vote, even before the Constitution was
written, as well as afterwards. Taney was making law, not following law.
Liberals seem to be taking the same myopic view of judicial
activism that they once took toward the institution of special
prosecutors which seemed like a great idea to them when special
prosecutors were going after Republicans but suddenly not so great when Bill
Clinton became the target.
The issue of judicial activism is not just an issue of the
moment. It is an enduring issue of great moment because it means the erosion
of the American people's Constitutional right to govern themselves. If
activist judges are allowed to continue to become increasingly our real
rulers, what are elections for? Just to provide jobs for politicians?
Public acceptance of judicial coups has only led to increasing
audacity in words and deeds by activist judges. Justice Anthony Kennedy's
recent decision banning the execution of murderers under the age of 18 was a
classic case in point. It was based, he said, on "evolving standards" and a
"national consensus," as well as on what people were saying in other
countries. Even if all of this were true, none of these things is statutory
law, much less the Constitution of the United States.
It is incidental that these things are not all true. What do
pretty words like "evolving standards" mean except that some people agree
with you, even if the law says nothing of the sort? As for a "national
consensus," we have elections to determine that and judges have no special
expertise as pollsters.
What all this vaguely romantic verbiage boils down to is that
judges can treat the Constitution as simply a grant of power to act as
philosopher kings and respond to whatever constituency they prefer to the
voting public. That is lawless law.
Such judicial behavior is not going to stop until it gets
stopped. This might be done with Congressional restrictions on court
jurisdiction, with Constitutional Amendments, or by the other branches of
government simply refusing to obey some judicial decisions, as President
Andrew Jackson did long ago.
Short of Constitutional confrontations, however, a less
dangerous option would be putting on the judicial bench people with a track
record of supporting judicial restraint rather than activism. But this
approach is being blocked by liberal Senators mostly Democrats but with a
big assist from Republican Senator Arlen Specter, Chairman of the Senate
Liberals understand the enduring high stakes in these judicial
nominations. But do the Republicans? Republican Senators have the votes to
change Senate rules to stop Democrats from filibustering judicial nominees.
But they are afraid the Democrats will become more obstructionist than ever
on other Senate business.
If Senate Democrats are willing to disgrace themselves in public
by blocking the functions of government during a war, so be it. Let them see
how the public reacts to such irresponsibility. Or will the Republicans
prefer to disgrace themselves by caving in?
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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.