Jewish World Review April 26, 2005 /17 Nisan, 5765
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
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
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
"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
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.)
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