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April 06, 2005

One dumb Senator, one smart judge

From the New York Times:

The struggle over the relationship between Congress and the courts intensified on Tuesday as Senator Bill Frist, the majority leader, broke with fellow Republicans calling for new judicial accountability after Terri Schiavo's death. Democrats accused Republicans of undermining the separation of powers.

Disagreeing with Representative Tom DeLay, the Texas Republican who is the House majority leader, Dr. Frist said he saw no need to examine why federal judges chose not to intervene in Ms. Schiavo's case after Congress had passed an emergency law that let them do so.

"I believe we have a fair and independent judiciary today," said Dr. Frist, who declined to comment directly on Mr. DeLay. "I respect that."

I understand that Frisk is also a medical doctor. That's good because there's a good chance he's studied proctology, which will better enable him to someday extract his head from where it is obviously very deeply embedded.

While Frisk deals with his anatomical problems ChronWatch reports that some judges are having problems with the tyrannical activism used by many on the bench. In an interview by Judson Cox, Editor In Chief of The North Carolina Conservative,  North Carolina Supreme Court Justice Paul Newby said:

Judicial restraint emphasizes the "rule of law," which means that legal precedent has meaning and must be followed, and recognizes the limited role of courts in our system of government. Judicial activism, which occurs when a judge ignores precedent and imposes his personal views, is a significant threat to our principles of self-government. Our Founding Fathers were wise men who established a system of checks and balances on the powers of government. Legislators are supposed make laws, not judges.

It is the judiciary's role to interpret and apply the law as intended by the drafters. Judges should not view themselves as super-legislators who create, revise or overturn laws at will. No one died and made a judge king. Judicial activism leads to unchecked power in the judiciary, thwarting the rule of the people and undermining self-government. It smacks of elitism and erodes public confidence in the legal system. (i.e. is there law or only the changing opinions of judges?) Our system of law grew out of the English tradition which held that the law, not the king, was supreme. An activist judiciary, in effect, sets itself up as an all-powerful king able to disregard the law and the will of the people.

This results in an oligarchy, a rule of few, which certainly undermines our most basic democratic principles.

This is an untenable situation, but a difficult one to remedy. Who has the power to check a judiciary that seems to hold the final say on every issue?

Our best option is to choose judges who are philosophically committed to and practice restraint. Otherwise, we have problems such as happened in California with the question of the constitutionality of the phrase "under God" in the Pledge of Allegiance. The insertion of "under God" was debated and adopted by the representatives of the people (Congress), and signed into law by the President. If someone objects to the phrase, the proper forum for the debate is Congress, not the courts. It is inappropriate for someone opposed to "under God" to be able to seek out an activist judge to overturn this legitimate law based on nothing more than mere personal opinion.

The problem of an unchecked judiciary is not new as highlighted by this quote from Thomas Jefferson:

"The federal judiciary: an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated."

I'm impressed.

Judicial activism roundup: The Smarter Cop

Posted by Danny Carlton at April 6, 2005 11:39 AM

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» Thomas Jefferson on an Unchecked Judiciary from Time Hath Found Us
The author of "The Declaration of Independence" and the third President of the United States held no special love in his heart for the Judicial branch of the government. Some 121 years after these letters were written, we look back at these words as pr... [Read More]

Tracked on April 6, 2005 03:23 PM


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