Jewish World Review April 26, 2005 /17 Nisan, 5765

Thomas Sowell

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Disinformation on judges | The future of the legal and political system of this country may be on the line when two judicial nominees that the Democrats refused to let the Senate vote on in the last Congress are being again submitted for a vote. Both are currently members of their respective state supreme courts — Justice Janice Rogers Brown from California and Justice Priscilla Owen from Texas.

Why is this particular vote so important?

It is important, in the first place, because the fundamental issue is whether the Senate will be allowed to vote at all, to fulfill its Constitutional duty to "advise and consent" on judicial nominees by voting them up or down.

Democrats are dug in to prevent a vote. The big question is whether the Republicans will wimp out. Senate Republicans have the votes but the question is whether they have the guts.

Undoubtedly there will be a political price to pay if the Republicans force a Senate rule change to stop Democrats from filibustering judicial nominees. But where is there anything worthwhile that does not have a price?

This is not about two people being nominated to be federal judges. It is about the whole role of judges in a self-governing republic. The voters' votes mean less and less as time goes by, when judges take more and more decisions out of the hands of elected officials and substitute their own policy preferences, all under the guise of "interpreting" laws.

Judges who decide cases on the basis of the plain meaning of the words in the laws — like Justices Brown and Owen — may be what most of the public want but such judges are anathema to liberals.

The courts are the last hope for enacting the liberal agenda because liberals cannot get enough votes to control Congress or most state legislatures. Unelected judges can cut the voters out of the loop and decree liberal dogma as the law of the land.

Liberals don't want that stopped.

The damage that is done by judicial activism extends beyond the particular policies that happen to catch the fancy of judges. Judicial ad-libbing creates a large area of uncertainty, making the law a trap for honest people and a bonanza for the unscrupulous.

A disinformation campaign has already been launched to depict judges who believe in following the written law as being "activist" conservatives, just like liberal activists.

Those who play this game of verbal equivalence can seldom, if ever, come up with concrete examples where conservative judges made rulings that went directly counter to what the written law says or who made rulings for which there is no written law.

Meanwhile, nothing is easier to come up with than such examples among liberal judicial activists who have made decisions based on "evolving standards," "world opinion" or other such lofty hokum worthy of the Wizard of Oz.

"Pay no attention to that man behind the curtain," the Wizard said — and "Don't attack our judges" the liberals say.

Even some conservative Republicans have fallen for this line. President Bush's former Solicitor General Theodore Olson recently condemned "personal attacks" on judges by their critics, and somehow lumped those critics with criminals or crackpots who have committed violence against judges or their family members.

Criticizing someone's official conduct is not a "personal attack." Nor does criticism equate with violence. An independent judiciary does not mean judges independent of the law. Nor is the rule of judges the same as the rule of law. Too often it is the rule of lawlessness from the bench.

Did anyone try this guilt-by-association ploy to blame critics of the Reagan administration when President Reagan was shot during an assassination attempt? They did not.

The other big political and media spin is to say that we should not reduce judges' power just because they make "decisions we don't like." The real objection is to decisions with no basis in the written law or even contrary to the written law.

Ploys and spin will of course only escalate if activist judges start getting replaced by judges who follow the law. That is the political price to be paid. If people are willing to do the right thing only when there is no cost whatever, that is the very definition of cowardice.

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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.


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