Thursday, April 14, 2005
NRO on Judges: National Review Online has posted an unsigned editorial on the state of the judiciary -- including addressing recent comments by Sen. John Cornyn and Rep. Tom DeLay.
Politicians of both parties regularly demonstrate that folly, error, and overreach are endemic to their trade. But judges are prone to the same failings. In recent decades, their power has increased and their exercise of that increased power has become routine. Some of their decisions have been right, and others have not. We think, for example, that the Supreme Court’s restrictions on state governments’ ability to set their own policies on euthanasia — restrictions that formed a backdrop to the Schiavo case — were not grounded in the Constitution. There can, however, be legitimate differences of opinion over precisely which judicial decisions should be regarded as “activist.”
But the existence of these disagreements does not alter our conclusion that it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law.
Listening to interviews and soundbites from Democrats on all variety of TV and radio programs a common refrain is that criticism of the judiciary is an assault on our system of checks and balances.
My question is this: How far afield does the judiciary have to go before the legislative branch exercises its "check"?
Interpreting the U.S. Constitution through the prism of international law (created by unelected, unaccountable foreign judges) isn't enough. Ignoring the clear language and intent of the legislative and executive branches of government in the Terri Schiavo case wasn't enough.
I was one of those crazies who suggested that Gov. Jeb Bush should've stepped in and taken custody of Terri Schiavo in defiance of the courts. According to Hugh Hewitt, the entire Volokh Conspiracy and Mrs. Instapundit's worse half, I stepped over some sort of line. Fine. I'll accept that.
But where is the line the judiciary has to cross before all of these legal eagles will say: "Yes, this judge has gone too far"?
*UPDATE* National Review's Ramesh Ponnuru makes the following comment in response to a statement made by Shannen Coffin.
So, Shannen, you are "doubtful" that a campaign to impeach lawless judges would work and think it "distinctly unlikely to succeed," but you think it wrong to deny the practicality of such a campaign. I don't think these positions are going to get along well with each other. I think you are led into this cul-de-sac because you have too limited a set of alternatives. You make it sound as though the alternative to ending filibusters and impeaching judges is doing nothing to challenge judicial imperialism.
But ending the filibuster is only a means to the end of confirming judges (who are committed to the proper enterprise of judging). If you can get just as many or more such judges confirmed by breaking a Supreme Court filibuster--which has been the basic claim I have defended against you and others--then ending the filibuster through a formal rules change doesn't do anything more (and may do less) than that course of action. Your bringing up the filibuster issue begs the question.
And what about the alternative of trying to get good judges confirmed, making the conservative case about judicial power, and removing issues from the courts' jurisdiction? A majority of the House has gone on record for limiting jurisdiction. It won't do the same for impeachment.
This was the sort of thing I was thinking of when I first made this post. Specifically Congress making a move to remove certain questions from the courts' jurisdiction. Say the Congress passes a bill and the president signs it into law that forbids the Courts from determining the Constitutionality of the Pledge of Allegiance ("under God") and currency ("In God We Trust") -- a power the legislative branch is granted by the Constitution.
Let's say that some judge determines that the aforementioned law is unconstitutional. Judges are experts at using (and abusing) the language, so this is not a stretch. Let's also say that an appeals court agrees with the trial court judge, and so does a majority of the Supreme Court.
Can we impeach them at that point? Or are we truly ruled by a judicial elite?