What to DO about these judges?

By Warner Todd Huston

This has been an age-old American question as it happens. Since we Americans have always prided ourselves by ruling our country under the rule of law we are generally loathe to attack our judiciary. Yet, still, we have, many times in the past, faced the question of just how to reign in out of control courts. During his presidency, Thomas Jefferson had battles with Chief Justice John Marshall. Franklin Roosevelt had bouts with his Chief Justice, Charles E. Hughes. And various justices, judges and rulings have been controversial, disruptive and often just plain wrong — such as Justice Roger Taney's "Dred Scott" decision — throughout our history.

Today we are faced not with just a recalcitrant Supreme Court, but with an arrogance of the entire judiciary nation wide. We are constantly seeing decisions that range from the absurd to the downright dangerous and we have been seeing these troublesome decisions climb at a steady and alarming rate at least since the Bussing issue in the1970's.

It is common to hear Americans on both sides of the political aisle complain about the current Court situation, too. Conservative activist, Phyllis Schlafly, said in a recent book, "We must save self-government from the rule of judges. The whole future of America depends on it."("The Supremacists: Tyranny of Judges and How to Stop it") And a New York Times best seller called "Men In Black: How the Supreme Court is Destroying America," by Conservative Talk Show host and lawyer Mark Levin, is currently a hot seller.

The left is also none too happy with our courts these days. They are quite alarmed with the Supreme Court's recent turn toward a more Federalist basis for their decisions, for instance. The current Senate judicial nominee filibustering conflict between the Democrats and the Republicans is just a dress rehearsal for a fight over Bush's Supreme Court nominations that one and all expect him to have the opportunity to make in the ensuing years. The left hopes to solidly return the Supreme Court to the kind of judicial activism that is constantly re-defining the Constitution in the way they have grown used to it doing since the 1940's.

Naturally the conflict between the left and right is because the respective sides expect their Courts to do two very different things. The reason the left is unhappy is because they feel the Court's proper role is to create law. Senator and former presidential candidate, John Edwards, was recently heard saying in a TV interview that our Courts " are to decide matters of law." The left imagines that Judges are to actively pursue "matters of law" as opposed to simply adjudicating cases and interpreting the law. The main reason they have come to believe this is because their agenda in the various legislatures has been steadily losing favor among the electorate since 1980 and activist judges is one of the last ways they have left to effect the changes in American society that they favor.

The right, on the other hand, feels that Judges are merely to interpret law, not determine it. The right correctly feels that laws are to be made by Legislators, not Judges.

So, to be sure, our courts have been placed between a rock and a hard place. They are being pulled in one direction by the Democrats and in the opposite by the Republicans. They have responded to this pressure by asserting their power. We have all too many judges who are actively going above and beyond their venue following the left's formula. And when one judge arrogantly takes this step all his black robed brethren back him up regardless of the merits of the case or the law itself.

This Florida Schavio case is a prime example of judicial arrogance. The Congress met in special session and required the Florida Courts to undertake a "de novo" review of the previous court's findings. There is no question that Congress meant the feeding and hydration of Terri Schiavo to be resumed while law makers attempted to arrive at a solution to this gut wrenching problem. Yet, a Florida judge has arrogantly ignored Congress' order and, for the most part, his fellow judges have closed ranks behind him in support.

This judge should have ordered Terri's life to be saved, if only temporarily, while law makers attempt their solutions. In the case of terror suspects the courts have gone out of their way to give these people rights under our constitution, rights they really don't have since they are not citizens of the US UNDER that constitution. But in Terri's case the courts are seemingly refusing to give Terri the benefit of the protections of that same constitution! The courts are falling all over themselves to assure the rights of terrorists yet amazingly they have turned their backs on Terri Schaivo.

Now, it is interesting that so many in this country seem to feel that the courts are infallible yet we have had many, many court decisions that were proven morally wrong later and over turned. And we are certainly at a point where neither political side feels that the courts are on the right track. So, we now come to the question of just what are we to do?

There is no doubt that the Supreme Court has been successfully reigned in several times by presidents and administrations of years past and also that many lower Court Judges have been reigned in, so we know it can be done.

Today, unfortunately, we are not faced with isolated Courts that are troublesome nor are we just faced with just a Supreme Court problem. We are faced with an entire court system all up and down the line that is acting contrary to both the majority will and the laws made by nearly every law maker from the States to the Federal governments.

I must say first, though, that I am not recommending civil disobedience to court rulings; that would be a step too far. As I said, the United States is a land ruled by laws and to outright ignore Court rulings would tend to destroy the rule of law rather than mend it. But we have at our disposal as citizens several weapons to use against the judiciary in many states.

The vote

Over the next several decades we need to vote every single sitting judge out of office to show them that they are not an imperial presence beyond all accountability. Yes we would loose some good judges, but even the good judges have backed up the ones who have gone off track. We need to bring a democratic check to this branch of government.

After all, the courts are a co-equal branch of government with the legislature, not a higher one. They must realize that they cannot just do what ever they feel like doing regardless of what the law actually states and what the people want.

The Rules

We also need to change lifetime appointments so that these people are not given a free reign with no accountability. A judge who knows he is unaccountable to every citizen he is supposedly tasked with protecting almost assures arrogance. We all know the saying that absolute power corrupts absolutely and we are seeing this maxim borne out with the Courts today.

Abolishing Circuits

Congress may not remove a judge except by impeachment and that has traditionally been one of the hardest things to achieve. The Constitution says that judges "shall hold their Offices during good Behaviour." However, "good Behaviour," does not exclude bucking Congress or the will of the people.

So, while we cannot just fire a wayward judge we can eliminate the circuit over which they preside which would leave them without duties to execute and, therefore, out of a job. The Constitution says in part in Article III, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Clearly, the Constitution states that since Congress has the power to create "such inferior" Courts, it also has the power to abolish them, as well. Jefferson took advantage of this power during his presidency, for instance, so there is precedent.

Pressure our Representatives

We simply must make this a focus issue when we interact with our elected representatives. We must, as a people, impress upon our leaders that we are just plain sick and tired of these wild judges. We should let them know that we will be voting them out of office, too, unless they begin to think a little harder about their judicial appointments.

Furthermore, we need to let our politicians know that it is they who are responsible for creating law, not the Courts. And they must take this role more seriously than they now do. They need to stop allowing the Courts to make all their decisions for them. As it stands now we do not have a democracy, we have a tyranny of the Judicial minority and our law makers must take back their turf.

We are a nation ruled by laws, and this cannot be abrogated. But, we can bring these out of control Courts back down to earth by utilizing the power we do have as Americans under that very law, without breaking it. Its about time we took up the power vested in us and did so.

© Warner Todd Huston