|
by Kim Weissman
In a speech before the American Society of International Law on April 1, Supreme Court Justice Ruth Bader Ginsberg waded into partisan politics by attempting to discourage the passage of resolutions currently pending before Congress. Supreme Court justices – all federal judges – are supposed to be above partisan politics because once in office, they have no accountability to the democratic process. But Ginsberg seems to want it both ways: unaccountable power and influence on the political process. Her speech was a defense of the Supreme Court’s increasing reliance on foreign law and “good thinking foreign sources” (her phrase) in deciding cases: “Judges in the United States are free to consult all manner of commentary” (but jurors are not free to consult the Bible, said the Colorado Supreme Court; nor are courts free to consult the Ten Commandments, according to the ACLU).
Although we acknowledge the religious roots of this country, and the vital importance of the inclusion of moral (i.e.: religious) values to temper the otherwise mechanical Rule of Law, it would be no more legitimate for a Supreme Court ruling to cite ‘Because the Bible says so’ or ‘the Ten Commandments say so’, than to cite ‘Because the International Criminal Court says so’ or ‘French courts say so’ or ‘the Code of Hammurabi says so’. All of those codes are external to the Constitution and the laws of the United States, which are the only sources that the justices are permitted, by their oath, to consider.
When Justices are sworn into office, they take the following oath: “I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [title] under the Constitution and laws of the United States. So help me God.” (Yes, “God” is included in the United States Code, Title 28, § 453: “Oaths of justices and judges”. Too bad, ACLU.) And those “duties…under the Constitution” are “all Cases…arising under this Constitution, the Laws of the United States, and Treaties” (Constitution Article III, § 2).
Ginsberg’s speech criticized Senate Resolution 92 (by John Cornyn, R-TX) and House Resolution 568 (by Tom Feeney, R-FL), which state: “judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions”. Ginsberg opined that, “Although I doubt the Resolutions will pass in this Congress, it is disquieting that they have attracted sizable support.”
Those Resolutions merely reiterate the substance of the oath of office that justices swear upon assuming their positions on the Supreme Court, so why would Ginsberg find it “disquieting” that Congress expects justices to take their oath seriously? Perhaps it’s because she understands that such congressional Resolutions might just be the first step in the two-step process that was suggested by Thomas Jefferson in 1821, for counteracting “usurpations” and “unconstitutional invasions of...rights by the Federal judiciary”. Jefferson’s first step is “a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution” (such as the protestations stated in Resolutions 92 and 568); and the second step, “if afterwards they relapse into the same heresies, impeach and set the whole adrift”. By what possible stretch of even the most expansive understanding of the proper role of a judge does Ginsberg think that she has the right to inject herself politically into the merits, and to attempt to influence the outcome, of resolutions pending before the Congress, even though she is not accountable to the political process?
The left has begun its campaign to derail the debate over judicial accountability. Ralph Neas of People for the American Way, interviewed on Air America on April 5, accused Senator Cornyn of excusing violence against judges. The New York Times embellished on the same theme the following day: “when a second important Republican stands up and excuses murderous violence against judges as an understandable reaction to their decisions, then it is time to get really scared.”
The Times reminded us that “Trying to intimidate judges used to be a crime”. Here is what Cornyn actually said, which had Neas and the Times so outraged (Congressional Record, Page S3125, April 4, 2005):
-
“Why should people respect a judge for making a policy decision born out of an ideological conviction any more than they would respect or deny themselves the opportunity to disagree if that decision were made by an elected representative? The difference is they can throw the rascal out and we are sometimes perceived as the rascal if they do not like the decisions made, but they cannot vote against a judge, because judges are not elected. They serve for a lifetime on the Federal bench. The increasing politicization of the judicial decisionmaking process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy. Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country – certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share.”
Cornyn’s comments went on for five pages of the Congressional Record, and he continued and clarified his remarks the following day. Anyone can read what Cornyn said in full, in context, at the CR link below, and decide for themselves whether or not he “excuses murderous violence against judges”. The shamelessly derogatory slurs that democrats have made about conservative judges over the years would fill volumes, but those never seemed to bother Neas or the New York Times (which has often regurgitated the left-wing attacks with approval).
It is perfectly proper to criticize Cornyn’s rather absurd suggestion that the recent judge shootings were somehow related to erudite separation-of-powers and judicial supremacy issues, since one of those incidents seems to have involved a personal grudge, and the other can be directly attributed to left-wing political correctness (the insistence that a 50’s something woman deputy is just as capable as a man in controlling a much larger, potentially violent male felon, even when he isn’t handcuffed because jurors might think that the poor dear is a criminal).
Members of Congress often say stupid things (Robert Byrd and Ted Kennedy being prime examples). But did Cornyn excuse “murderous violence”, and was his criticism near-criminal “intimidation”? Hardly. Left-wing denunciation of any criticism of the judiciary is not only bizarre, but is a dangerous refusal to acknowledge who is in charge in our constitutional republic – the people, not the judges. And why is it acceptable to criticize the legislature and the executive (recall the outrageous lies and filth spewed against the president ever since the 2000 election) but not acceptable to criticize the judiciary? Restoring the Constitutional balance between the three branches of government by re-establishing the Constitutional checks and balances over the judiciary is far more important than just confirming originalist judges, because judicial independence is important, and once in office for life, there is no control over (nor should there be) how federal judges will rule over their tenure. But there must be some mechanism to correct clearly unconstitutional judicial decisions, and Cornyn’s point was that the Constitution provides a mechanism to do so without violence.
Democrats, the left, and Ginsberg apparently believe, however, that we don’t need any mechanism to review unconstitutional judicial decisions, because the Constitution means whatever judges chose it to mean; so by definition, the Supreme Court cannot act in an unconstitutional manner. James Madison (the father of the Constitution) would say that this notion of judicial infallibility is patently absurd. But judicial infallibility is precisely what democrats and the almighty justices demand that we accept.
Senate Majority Leader Bill Frist has hinted that he might seek the Republican presidential nomination in 2008, but he is already running away from Tom DeLay’s call to restore judicial accountability, and he is apparently waffling on any attempt to reign in democrat obstruction of judicial nominees. Let’s put it this way – if he does not address both of those issues, and resolve them in a manner which recognizes that the Constitution still means something, republicans will, deservedly, lose the majority in 2006 (they’ve been acting like the minority since 1994 anyway). And if, in the face of Frist’s failures to resolve those vital issues favorably, the Republican Party is still foolish enough to nominate him to run for president in 2008, President Hillary will be the one nominating judges for the next four (or eight) years.
And what about the rest of us; what about We, the People, who are supposed to be in charge of our government? We elect representatives, who enact legislation, which the president signs into law; after which an unelected Supreme Court thumbs its nose at everybody and does whatever it pleases anyway, on whatever basis they please, including foreign laws that the American people have no input into. But isn’t having input into the laws and people who govern us the very essence of self government? And if the Court does happen to accidentally stumble across our Constitution while deciding a case, they don’t see the document that was actually ratified, but a magical recreation of it as they think it should be, because, Ginsberg says, our Constitution can’t be “frozen in time.”
If the concept of self government and the founding principles of our nation mean anything to us at all, we would wholeheartedly and vocally support the congressional resolutions admonishing the judiciary, and if the courts then continue to render judgments based on foreign law and “good thinking foreign sources”, we would demand their impeachment and removal from office, as being in open violation of their oaths of office. If holders of public office can simply ignore their oaths of office without consequence, why bother administering those oaths in the first place? After all, Ginsberg is hardly the first or the only judge to usurp unconstitutional power – that started way back in 1803 with John Marshall’s (in Jefferson’s words) “gratuitous opinion in Marbury v. Madison”. Judges have decided that they are more capable than anyone else to determine state and federal criminal and civil law, to impose taxes, to dictate domestic spending, to set immigration policy, to conduct foreign policy, even to wage war. So why do we even need a legislative or executive branch any more? Or, for that matter, state legislatures, governors, or local elective bodies such as school boards?
If we aren’t willing to even try to exercise control over our judiciary as the Constitution provides (as we try to do with all of our public servants), then why keep up the charade of elections at all? Why not just be honest with ourselves and simply stop holding elections altogether, since they don’t really mean anything anyway? If we don’t want to govern ourselves or observe the founding principles of this nation, why not just call our nation what it has become: a monarchy (or oligarchy, in Jefferson’s word) of judges, who rule as though with a divine right of kings and who are accountable to no one? Imagine – no more political parties, no more election campaigns, no more town hall gab-fests where members of Congress pretend to care what their constituents think, no more congressional “fact-finding” junkets, no more over-inflated salaries and fringe benefits for 535 prima donnas who put in less time actually working than even the French, no more fleets of presidential limousines and aircraft and lifetime Secret Service details. Think of all that pork-barrel spending that politicians use to buy votes, which will no longer be spent. Multiply all that by 50, for each state of the nation…we could probably pay off the national debt and every state’s debt within a year! The sad part is how many Americans would probably think all of that sounds just great. George Washington, James Madison, Thomas Jefferson, and the rest; the signers of the Declaration of Independence who “with a firm reliance on the protection of Divine Providence” mutually pledged “to each other our lives, our fortunes and our sacred honor” to save our liberty; and the ordinary men with bloody rags for shoes at Valley Forge who made our liberty a reality, would curse us from their graves. But who cares? They’re just a bunch of dead white male religious nuts anyway, according to our ruling elite.
|
