Judical Activism

In all of the media frenzy over non-issues and personalities in the last national election, the most lasting historical effect of any President's administration was mostly overlooked. The choice of Justices to the US Supreme Court and Judges to the Circuit Courts of Appeal and the Federal District Courts have a profound effect on the lives of the population of the country. While the issue was largely overlooked, judicial activism is a constant danger to the make up of the government. It amounts to the judicial branch subverting the very document they are sworn to uphold and interpret.

When the founding fathers of the United States designed the mechanics of the government, they made the passing and changing of law difficult. To people desiring changes in the law, it can be frustrating to watch the sniping and deliberations which go into the passage of legislation. It has been famously said that “no one should see how sausages or laws are created”. It seems inefficient and more difficult than it needs to be. That is not coincidence. It was designed to be that way from the beginning and it is very intentional. At the time that the ratification of the United States Constitution was being debated, there was a lot of wariness of a strong central government and allowing the central government too much power. After all, the country had just fought a long and bloody war to get out from under a too powerful government which was not responsive to the needs of the people.

It was precisely because of the suspicion that central government which was too powerful would be subject to trends and to shifting political winds that the constitution was written the way it was. It takes deliberations in both the House of Representatives and the Senate separately, and then agreement between the two bodies before the bill being considered is even sent to the President. All of those steps were meant to ensure that fads and short-sighted trends were not constantly causing changes in law which were fickle and subject to whim. Political preferences in the United States are cyclical and the founding fathers knew that in order to have stability, the law must have some consistency.

Keeping those ideas in mind, the changes which are, by design, most difficult to make are changes in the constitution itself. A change to the United States Constitution requires involvement of all of the state governments and two-thirds of those governments must ratify the amendment. This is a Herculean task by any measurement. It is supposed to be. All of the articles of the constitution were hammered out in long debate and compromise in which all sides strenuously argued the merits. It is not something to be casually changed on a whim.

The constitution specifically delegates the power to create law to the legislative branch. The legislative branch is designed to be most representative of the governed population. Any idea without merit will not get through the scrutiny of the elected legislators because in short order they will be facing those same people asking to be re-elected. The country tends to be reluctant to wholesale radical change and so these processes allow progress to be generally very methodical with some notable exceptions. By definition, every constitutional amendment is a big change.

Liberal political thinkers got frustrated by their inability to pass legislation that agreed with their political views so they found a way to get around the constitution. They found activist judges. The idea is that they can find a judge who agrees with whatever interpretation of the law they want codified and they argue a case in front of the judge. The judge then rules that the law is only constitutional if it is rewritten the way the judge wants it. In that way, the legislature becomes powerless to change or adapt the law in any way other than the judge wants it.

There are a number of problems with this approach. The first is that the legislative branch is delegated the authority to create law specifically because they are accountable to the people in open elections. Federal judges are political appointees who, except in cases of malfeasance or criminal conduct, are accountable to no one. The second problem is that case law from one area of the country can be used as precedent in another part of the country. This allows creative and radical decisions by rogue judges to spread like malignancies across the country. It is a well documented phenomenon that liberal lawyers "shop" cases around until they find a favorable federal judge and try the case in that district or circuit. The third problem is that an isolated federal judge making a decision creating law removes the entire deliberative process installed in the constitution specifically to prevent trendy and whimsical changes in federal law.

A constitution which constantly changes shape like an amoeba and adapts without deliberation and debate and the input of the legislatures is no constitution. There is no stability and no consistency and besmirches the system of government on which our country’s very existence is based. Judges who create law are not interpreting law, as the constitution intended and specifically states, they are pseudo-monarchs creating law without accountability. The American Revolution was fought to divest this country of just such a system of government.

Olympic Judging and Other Impressions

Has anyone else noticed the seemingly endless parade of screw jobs in the Olympic judging concerning the Chinese athletes? Don’t get me wrong, some of them are just awesome. The guy on the still rings looked like Conan the Barbarian and did stuff that seemed impossible. The female springboard diver was clearly the best. But, when a Chinese female does a vault and falls to her knees and gets the same score as the All-Around Champion who sticks her vault, something stinks. Before the gymnastics fanatics go crazy, yes… I understand start values, deductions, etc. and the way the system works. Nastia Liukin also nailed her uneven parallel bars routine and scored lower than the Chinese female with multiple obvious faults. One judge scored her execution 9.0 and the Chinese girl 9.3 despite many more obvious mistakes by the Chinese gymnast. I don’t think it is a conspiracy but may just be a bunch of judges trying to please the home fans. The overall impression stinks like old fish. Bela Karoly did have an excellent point when he suggested that the Olympics get rid of the 16-year-old rule. The Chinese girls were clearly not sixteen but certainly were good enough to be in the competition. Why make governments falsify passports when everyone can clearly see they are underage? If they are good enough to compete, let them.

This brings me to the larger point. I absolutely detest any sport requiring judges. Over the years, I have seen so many screw jobs in: diving, gymnastics, boxing, and absolutely worst of all, figure skating. I much prefer the sports like swimming and track & field. Here is a line. Everybody line up on it. Whoever gets to that line over there first is the winner. Simple and pure. Or, whoever throws this heavy thing the furthest, wins. Simple and pure.

There are a lot of Americans complaining because softball and baseball are being dropped from the Olympic Games. I don’t believe they should have ever been there. I know there are professional track athletes but I would generalize that any sport with popular professional leagues probably shouldn’t be an Olympic sport. Olympic tennis? Give me a break. I was as excited as anyone to see the American/Russian hockey game back in the day but those were college players. I don’t want to see the NHL, NBA, NFL, MLB, or FIBA rehashed like another set in a series of pick up games. Some sports only get attention during the Olympics, like rowing, real wrestling, weightlifting, badminton, etc. Despite the sacrifices made by those dedicated athletes who don’t get big endorsement deals and huge contract salaries, all of the TV coverage seems to be of the NBA stars, and the bikini-clad beach volleyball players who are making a fortune regularly. I guess the up side to beach volleyball is that the outfits piss off a bunch of fanatic Mullahs.

On the positive side, there was some great sportsmanship and attitude among the swimmers. Dara Torres, who granted has more maturity than others, had the head official hold the start of a heat so another competitor could change into a non-ripped suit. The girl did not qualify for the final. If she hadn’t swum in that heat, she would have had years of preparation and training and not even had the chance to swim. She was not a teammate of Torres. It was a class move by a class athlete. Torres also showed her class with her reaction to losing the 50-meter freestyle by .01 seconds. She is a real role model. Milorad Cavic, the swimmer who lost to Michael Phelps by .01 seconds showed great class after the race. There were several American swimmers, I believe Rebecca Soni and Katy Hoff, who swam American record times and did not win their races. Instead of whining about it, they expressed joy at swimming their best times ever. That is how it should be. If you do your best and someone else is better, congratulate them.

Another interesting thing I haven’t quite figured out is the disparity in distance versus sprint athletes. Almost everyone in the sprint finals was from the Caribbean area and almost all the distance racers are from Africa. It causes one to wonder if it is a cultural thing or if it is the altitude training in Kenya versus the sea level training in the islands. I have to admit that is was fun to see Usain Bolt and Shelly-Ann Fraser celebrate their wins because they were so happy. Bolt cared nothing for the world record. He just wanted to win the race. The United States doesn’t seem to have any significant distance runners. Even the ones like Bernard Legat are from Kenya and he did not qualify for the final.

All told, the Olympics, to this point have been schizophrenic. The greatness of Michael Phelps and Usain Bolt’s accomplishments have been stirring but the judging and lack of coverage of the lesser-known sports is disappointing.

Judicial Activism and the Courts

I have become more and more interested in this subject recently after a number of court rulings, particularly by the United States Supreme Court. I have looked into several interesting decisions specifically because of the liberal use of the courts to establish law. My previous posting was about the danger of more liberal nominations after the next election should Barack Obama win the election and the Democrats control the Senate. This time let us look at a couple of specific cases.

The District of Columbia Gun Control Law (Heller versus DC)

Mr. Heller is a man who legally carries a gun during the performance of his job in Washington, DC. He is trained to use it and carries it when at work. The DC gun law denied Mr. Heller the right to possess a firearm at home despite his training and demonstrated ability to carry a gun safely. Mr. Heller sued based on the interpretation of the Second Amendment of the Constitution that the individual right to own guns for legitimate purposes is not to be infringed by state or municipal law. DC maintained that its interest in the protection of the citizens of DC was sufficient cause to pass the law. In a 5-4 ruling today, the US Supreme Court struck down the DC law, causing howls of liberal protest and celebration by conservatives. Justice Scalia wrote in the majority opinion that while the efficacy of protecting the citizenry by restricting gun ownership is debatable, the power of the court to contravene the Second Amendment is not debatable. Therefore, the Supreme Court has the power to review and interpret law but does NOT have the power to make law. It therefore follows that if the US Supreme Court does not hold this power, no lower court does.

The landmark case of Marbury vs Madison confirmed the idea of judicial review even though the concept had been informally in place earlier. In the Marbury case, Chief Justice John Marshall found that there was a conflict between the Constitution and the Judiciary Act of 1789. Since the Judiciary Act was a law passed by Congress, the question became whether Congress could legitimately pass a law which conflicted with the Constitution. Marshall wrote that law that conflicts with the Constitution is not law and therefore the Constitution always wins out. Since the Constitution is the highest law of the land and judges swear an oath to it, how can a judge issue a ruling in conflict with it? Marshall’s point was that there was no reason to have a Constitution if Congress never paid attention to it and passed laws in conflict with it.

One of the more interesting things which came out of this decision is how the four liberal justices (Souter, Stevens, Ginsburg, Breyer) all found a way to justify the law despite it being in conflict with the United States Constitution. The Canon of Constitutional Avoidance states that if an issue can be interpreted without causing a constitutional conflict, it should be interpreted that way. In this case, there was no way to avoid the conflict because the law directly conflicted with the Second Amendment despite any good intentions of the DC government.

Eminent Domain (Susette Kelo versus City of New London)

The concept of Eminent Domain has been around for a long time. The idea is that a government can seize property from an individual property owner for use to benefit the community at large. Per the Takings Clause of the Fifth Amendment, the property owner is compensated for the value of the property, though often not to their satisfaction. This has historically meant takings for uses like hospitals, transportation centers, public utilities and other obvious public welfare projects, usually tax-funded. For completeness, eminent domain does not only apply to real estate properties, it can be used by the government to seize military needs, trade secrets, patents and other intellectual properties. The difference in the Kelo case was that property was being taken from an individual to be used for a private venture for profit by other private investors, not the government. The government of New London argued that the improvements to the property would increase tax revenues and the business venture would be good for the citizens at large. Kelo argued the government had no right to seize property from an individual for another individual. The taking of property for profit subsequently made its way to the US Supreme Court.

The case was decided 5-4 in favor of City of New London setting off nationwide protest. The majority were the five liberal justices and Justice Anthony Kennedy. In opposing the ruling, Justice Scalia argued that ruling in favor of New London would eliminate the distinction between private and public property and that the only private property would be property the government was not interested in obtaining. After the decision, reaction was swift. Polls showed between 65-97% of people interviewed disagreed with the decision. President Bush issued an executive order banning similar eminent domain procedures by the federal government. More than forty states have enacted laws to prevent takings like the Kelo case. This is another case of the liberal US Supreme Court justices making law in conflict with the constitution. The Fifth Amendment specifically states “nor shall private property be taken for public use, without just compensation”. The liberal justices substitute “public purpose” for the actual phrase “public use”. This means that any wealthy business can have the local government condemn (take) anyone’s property solely with a promise to have a more successful business. This is clearly an example of liberalism in that the government is always smarter than its citizens and always knows what is best for individuals. This decision also preferentially gives advantage to the wealthy and powerful.

Both of these cases point out the need to avoid nominating judicial activists to the courts. President George W. Bush can be accused of a lot of things but he has certainly been a lot more successful in nominating Supreme Court justices who interpret rather than create law than either Presidents Eisenhower or Reagan.

Judicial Nominations and Politics

Let's start with a couple of references from the United States Constitution:

Article 1 Section 1 - All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 3 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.

By legislative powers, in addition to funding and other duties, the constitution means to create and modify law, subject to ratification by the Executive Branch, in the person of the President of the United States. By judicial power, the constitution gives courts the power to try federal cases (including disputes between states) and to interpret the constitutionality of laws. It is very clear to any reader that these powers do not include any provision for the judiciary to create law. In the last few decades, a slick way of writing unpopular law has emerged. Any party who has an agenda which will not be supported by the elected legislators can bypass the legislative process by filing a legal action with a sympathetic judge. The judge then issues an opinion that favors the plaintiff and it essentially becomes law. Even worse, the judge can strike down existing law and tell the legislature what kind of interpretation the judge will allow to stand, which makes the legislators redundant and powerless. It that case, the judge is clearly creating the law. Since the constitutionality of law is subject to review of the judiciary, and the judiciary is making the law, it should be fairly obvious that a judge is not going to strike down his or her own interpretation of the law. This process is usually referred to as “judicial activism”. It allows judges to do whatever they want to without regard to precedent or the desires of the elected representatives of the people. One needs to look no further than the historically astonishing opinions of the Ninth Circuit Court of Appeals in California for many examples. Not coincidently, the Ninth Circuit has more opinions reversed by the US Supreme Court than any other circuit.

Judicial activism has been responsible for a number of liberal causes becoming law. The recent same sex marriage opinion in California was created despite a 61% recent defeat of same sex marriage by the population of California in a vote. Roe versus Wade, the famous abortion decision, was decided based on a constitutional right to privacy which was created out of thin air by the Supreme Court. Under the theory of judicial activism, judges are free to do anything they want and, unlike elected legislators, there is nothing voters can do about it once they are in office. In fact, the legislature becomes powerless and useless.

Part of the Democratic push for the White House is that Justice John Paul Stevens is 88 years old and Justice Ruth Bader Ginsburg is 75 years old. In fact, the liberal justices are significantly older than the conservative justices. With a Democratic majority in the Senate and a Democratic President, the liberal wing of the Democratic Party will push for extremely liberal activist replacements should those justices retire or pass away. Additionally, the Democratic majority has been “running out the clock” by refusing to hold hearings of dozens of nominated judges so that if the next President is Democratic, all those nominations can be squashed and replaced by activists. Since the liberal agenda cannot be supported by legislation, the judiciary is used to create it.

The Republicans, on the other hand, are pushing for the Presidency so that more “strict constructionist” judges will be in place. Conservatives feel that by replacing even one of the liberal justices (Justices Stevens, Ginsburg, Breyer, or Souter), the direction of the court will be shifted. Chief Justice Roberts and both Justices Alito and Thomas are in their 50s. Only Justice Scalia, of the conservatives, is significantly older (72). Justice Kennedy, thought to be in the middle, is 71.

Since the court is currently thought to be four liberal, four conservative, and one swing vote, one new appointment could make a substantial difference to the make up of the court. Liberals are more anxious because of the ages of the liberal justices.

The choice in candidates is pretty clear. Barack Obama said in a recent statement, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Therefore legal expertise and experience apparently have no place in evaluation of judicial nominees, as long as they support his political beliefs. John McCain said that he thought that "abuse of judicial authority" had continued unchecked. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution,"

It is interesting that both Hillary Clinton and Barack Obama voted against the confirmation of both Justice Samuel Alito and Chief Justice John Roberts despite their stellar credentials and qualifications. Clearly their votes were agenda driven on not based on qualifications. John McCain voted to approve both nominees.

Despite the little political and media attention paid up to this point, judicial nominations might be the single most lasting result of the next President.

The Republicans Join the Suicide Pact

I have written previously that the Democrats have taken an election that should have been theirs in a walk and managed to screw it up enough to make the contest competitive in the general election. Now, not to be outdone, the Republicans are attempting to destroy themselves, as well. The truth is that no staunch conservative had a chance to win the Presidency in the current political environment given the war, the current economy, the Republican incumbent retirements, and the fact that a two-term President is leaving office. John McCain came along at the only time he could have been nominated as a Republican in recent history. Although he will be painted as “George W. Bush II” by the Democrats, anyone familiar with politics knows better. That being said, some contemptuous conservatives would rather leave the country to ultra-liberals than have a candidate that is not the “perfect” conservative. When I hear people like Ms. Coulter openly rail against John McCain, I cannot help but think of the ages and health of Justices John Paul Stevens and Ruth Bader Ginsburg. The conservatives whining about McCain cannot possibly be thinking if they do not consider twenty more years of judicial activism a problem. In the current climate, the Democrats will likely pick up seats in the Senate. Therefore, a Democratic President will be able to nominate and confirm any flaming liberal activist judge and the Republicans will just have to grin and bear it. If McCain is elected and nominates a conservative justice, the Democrats can not possibly stall a Supreme Court nomination for an entire four years, like they are doing to the Appeals Court justices now. The Democrats have been holding up hearings on judicial nominations “running out the clock” until the next election. The nomination of the next two or three Supreme Court justices and having hearings on the Appeals Court justices may be the single most important legacy of the next President. It is mind-boggling to think who Barack Obama might nominate, not only for the Supreme Court but also to the Appeals Court positions currently held in limbo. That alone has the potential to change the country more over the next two decades than any elected official. Republicans better wake up to reality before the entire country is San Francisco.

Recap of Recent Political Events

Where do we stand? Barack Obama does not have enough pledged delegates combined with super delegates to go over the top to the nomination. Hillary Clinton isn’t about to go away. John McCain is consolidating. It is quite a mess for the Democrats. Let’s look at some of the individual issues.

Florida and Michigan: First, let’s look at the electoral map. The way that the country is divided by historically Republican and Democrat states means that to win the Presidency, the candidates have to win two out of three of Ohio, Pennsylvania, and Florida, assuming they win all the normal red and blue states. That the Democrats have managed to upset the people in Florida and Michigan is pretty poor strategy. John McCain, because of his record of support for Israel and other issues, will run strongly in Florida. The last thing the Democrats need to do is irritate the voters there. Florida has elected Republican governors and has a Republican Senator. Except for the famous “hanging chad” areas of West Palm Beach, Broward, and Dade Counties, the state is primarily conservative. The Democrats are trying to blame the Republicans for the dilemma but the original piece of legislation introduced to change the date of the primary was introduced by a Democrat. That makes the “Republicans are to blame” argument hard to sell. Michigan will likely go Democratic unless they feel disrespected by the national party. There are currently no plans by the Democrats to revote. Therefore, any seating at the convention will be a non-representative appeasement, thus telling the voters that we can vote in your stead. It is bad politics all around. Howard Dean is looking remarkably ineffective as Democratic Party leader.

Hillary Clinton: The Clintons (you have to bunch them together) never cease to amaze. One the one hand, you have to give them credit for relentlessness going back throughout their entire public life. On the other hand, organized crime is relentless. The Clintons have historically complained about the “politics of personal destruction” but it has paradoxically always been their favorite weapon against their opponents. In the last day, she has again begun to plant more racial wedges by stating to USA today that, to paraphrase “the white voters are moving away from Obama and that makes me the stronger general election candidate”. There is a theory by Dick Morris that she is weakening Obama so that she can run in 2012. It looks more like she is using the scorched Earth strategy and will never bow out. It does lend credence to Morris’ argument that if she does manage to wrest the nomination from Obama on some sort of technicality, she is likely to lose in November anyway because several traditional Democratic constituencies would never support her. Therefore, wresting it away doesn’t seem to make sense.

Barack Obama: He is in an interesting position. He claims to be the candidate that will “cross party lines and bring people together” although he has a record diametrically opposed to doing that. He is the single most liberal Senator in the Senate and routinely refuses to join bipartisan coalitions. He also wants to change “politics as usual” but has himself and his representatives constantly lying about McCain’s statement about the security force in Iraq despite knowing better. He is going to have a hard time running as a moderate when nothing in his record remotely suggests he would ever take a moderate position. Obama should get a bump in the polls after he clinches the nomination and after the Democratic convention. Obama always seems to poll higher than he actually does in the voting. It is an interesting phenomenon.

John McCain: McCain has always been an independent thinker. It some cases (Iraq, federal judges) he is very conservative. On others (immigration, environment), he is moderate. The conservatives are complaining that he is not going ultra-conservative to please “the base of the party”. To win the general election, that would be a huge mistake. Why anyone expects him to change from the last twenty-five years is silly. Additionally, we won the primaries running as himself. Why would he make a disingenuous change at this point after watching how “flip-flopping” hurt John Kerry, Mitt Romney, and Hillary Clinton?

Issues: The economy – Obama wants to raise the capital gains tax despite the fact that every time the capital gains tax has been lowered, government revenue increases because the economy expands. McCain wants to lower the tax to keep industry in the United States. Obama keeps speaking of how opportunity exists in the United States but if you do manage to get rich, the government will take your money away in taxes on the rich.
Health Care – Obama wants universal care through a government program which will raise taxes and will not affect prices. McCain wants to have individuals buy their own policies so there will be competition and prices will lower. Additionally, this allows portability of policies between jobs.
Iraq – Obama wants to remove troops from Iraq regardless of the conditions there; McCain wants to continue the fight until we win.
Judges – Obama conforms to the Democratic position that since they cannot get the liberal agenda through elected legislatures, they will appoint activist judges who will create law through judicial fiat. McCain want to appoint judges who will interpret law rather than create it. Of course, that is what the United States Constitution says should happen.

One of the Democratic “strategists” Robert Zimmerman stated on CNN last night that the race would be between a “conservative Republican” and a “main-stream Democrat”. There is a load of manure if you ever heard it. McCain is a well-known moderate whom the conservatives are complaining about and Obama is the single most liberal Senator in the United States Congress. It is disgusting to hear both the right wing and left wing commentators spit out their vitriol. I almost e-mailed Bill O’Reilly about that. He calls his show the “no spin zone” but after every interview, he always has two “strategists” from either side who come on the show to do nothing other than “spin” the interview answers shamelessly.

CounterSpin is a Crock

I was on the road today and happened to be listening to National Public Radio. A program came on that was called CounterSpin. It purports to be a review of recent print and electronic media reports published or broadcast recently. It is a product of a group called Fairness and Accuracy In Reporting (FAIR). It only took several minutes to realize that there is nothing fair about this program. A rhetorical question: How far left do you have to be when you complain about the “conservative bias” of the New York Times and Washington Post? The “reporters” that present the stories throw in snide comments throughout the stories often. One of the guests was an investigative reporter named Mark Shapiro who was really giving a thoughtful review and analysis of the problems encountered when reporting on matters of scientific research. He has written a book about the dangers of chemical additives in commercial products in the United States. He later spent some time extolling the European Union because they have, in his opinion, done a better job of restricting chemical additives which can be added to products produced in China. In an interesting paradox, many pharmaceuticals are allowed to be sold to consumers in Europe which have not been approved for safety in the United States. I suppose you get to pick your poison literally. The person interviewing him could not let his very skilled answering of the questions stand without leading him toward criticizing any conservative policy or business. While Shapiro was very interesting and thought-provoking, the remainder of the program was an ode to socialization and had an obvious anti-business bias. After doing a little internet searching, it was easy to find out that one of the former leaders of FAIR was Laura Flanders, who hosts a program on the flaming left Air America. To be “fair”, the program does not report to be news; it is a commentary show. I can say without equivocation that there is nothing fair and accurate in the interpretation presented by this group. The FAIR group is as objective as the group Media Matters which has been shown over and over to be a left-wing smear machine. How anyone can claim to be an objective observer and be associated with this program is disingenuous.