Wednesday, May 25, 2005

Fixing Judicial Despotism

The President has got his judges, in the process displaying his superb results-focused management style. But making a few more normal people into judges won't fix a corrupt system.

Just how corrupt is demonstrated in this report in the Boston Glob of the South African Mass Supreme Court Justice Margaret Marshall addressing a crowd of 7,000 at Brandeis University's 54th commencement (via Opinion Journal):

Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states"--winning a big laugh.

She goes on:

"I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

Typical despot: she's so confident of her position that she admits political bias and then makes an ad hominem attack on people who criticize her socially destructive dictats.

In an earlier posts I reviewed alternative fixes, and here's one I hadn't though of in a WSJ opinion piece by Lino Graglia, Professor of Law at the University of Texas.

The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers.

Judge-made constitutional law is the product of judicial review -- the power of judges to disallow policy choices made by other officials of government, supposedly on the ground that they are prohibited by the Constitution. Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would "twist and shape" the Constitution "as an artist shapes a ball of wax." This is exactly what has happened.

He argues that the obvious cures - term limits & the requirement of a super-majority for rulings of unconstitutionality don't address the essential despotism. His alternative is to reframe the 14th Amendment.

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment -- in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

His proposes reframing the 14th Amendment to prevent judges using it as "empty vessels into which they can pour any meaning".

Mixing metaphors, this seems to me to be an attempt to plug just one hole in a collapsing dam. Surely, if judges are blocked in their manipulation of one amendment, they'll just find another one. The problem is the behavior of people who have no limits set on them, not their tactics.

So, I revert to my earlier Jeffersonian proposal - Congress must take charge, as the Constitution requires. Since the despots are lefties, that will involve a Republican super-majority, which does not currently exist. But, when the American people have had enough, it will come.

In the meantime, we need to constantly criticize these people. If they suspect that their days in power are numbered they will moderate their behavior. Which will perhaps delay legalized pedophilia, incest, euthanasia and the broad imposition of international law.

Rome wasn't built in a day. But it was built.