Archive for category Judiciary
Justices Ignoring the Constitution
Posted by Tom in Constitution, Federalism, Individual Freedom, Judiciary, Justice, Law, Morality & Religion in the Public Square, Legal, National Character, Supreme Court on December 19, 2010
What to do about judicial legislation? About justices that ignore the constitution? Doug Bandow posted and excellent article in American Spectator, Does the Constitution Mean Anything? He recites the circumstances of the drafting and ratification of the establishment document, namely the restriction of the type of unlimited powers exercised by the king and parliament against the colonies and the people. It was natural then that the founders drafted a structure dividing government between branches, each with its own domain, and each having a check on the others so that power was in fact divided. Thus a balanced central government was created. But not one of general police powers. No, the federal government was one of limited powers, specifically enumerated limited powers. The general power governments were the states. Thus the states possessed the so-call “police power.” The constitution specifically reserves powers not delegated by it to the federal government, to the states or the people.
Realizing that changes may later be needed, the founding fathers provided for a couple of different processes for amending the constitution. There have been 27 amendments to the document none conferring additional power on the central government.
Bandow goes over the various theories by which judges and justices try to get around this basic governing document which they have foresworn to defend and uphold. Theories of “living constitution,” or “dynamic constitution” or “time is right” for changes that the founders would have drafted if they thought of them, are all part of the judicial tap dance used to deny the validity of the constitution.
He suggests that it is not judicial “activism” that is the sin: ”Originalists” of varying stripes have tended to criticize judicial “activism,” but activism is not the problem. Lack of fidelity to the Constitution is the problem.”
He correctly analyses the current constitutional issues on the Obamacare insurance mandate and then posits the real value of his post, a potential solution to recalcitrant judges short of impeachment, itself a non-remedy.
“GIVEN THE TENDENCY of judges to ignore law and constitution, one helpful fix would be to end life tenure for justices. Intended to protect judicial independence, this provision creates a dangerous and disconnected elite that will always be tempted to overstep its role. Better to appoint judges for a term, perhaps ten years. Rotation in office would still insulate jurists from political passions while limiting the concentration and abuse of power by the judiciary. Errant jurists would naturally leave the bench rather than forever wield unconstrained power — becoming liberal saints along the way.”
While this is perhaps not the only solution to the problem, it seems a sensible one. Perhaps others will be constructed, but this at least causes us to ponder the problem and think about potential solutions.
The issue is important for, “If constitutional protections are but formless inkblots, then no American is truly safe from his or her government.”
Soros Buys Judges….It’s so much cheaper than legislatures!
Interesting example of the judicial merit selection process is highlighted in the Weekend WSJ, Iowa’s Total Recall. It describes Iowa voters total rejection of the three state supreme court justices up for “retention” in an election under that state’s Missouri-like non-partisan court plan. This is a plan like the one George Soros was pushing in Nevada in which judges are appointed by the governor after being recommended by a pannel of lawyers then years later are “retained” or “recalled” by the voters.
Seems that the Iowa voters didn’t cotton to the unanimous supreme court ruling that overturned a state law defining marriage as between a man and a woman. Let’s see, Iowa has been a state since 1846, that’s 163 years. In that time there have been numerous decisions related to marriage and never before has there been any question about what marriage is. The common sense voters recognize this so it natural that they resent an unelected court legislating something different.
Of course, the liberals howled at this “misuse of the judicial retention vote” in which all three justices on the ballot were fired. In reality it was the voters expressing rejection of judicial activism, judicial legislation.
Now Nevada voters should take pride in their sound rejection of Soros’ similar plan for Nevada. Nevada will still elect its judges, something the lawyers don’t like. The lawyers would much prefer a back room group of them picking the judicial candidates for the governor’s appointment. I would much prefer a public election where the public can see what’s going on and who is donating to whom.
Ya see, lawyers are smarter than we unwashed masses, particularly trial lawyers. They like to control legislatures so there are no limits placed on damages or on their contingency fees. This is the reason medical malpractice insurance premiums are so high. This is on reasen the costs of medical services are so high.
Now Obama and the Democrats get money from the trial lawyers, a lot of money. So you will note well that Obamacare has no caps or limits on medical malpractice damages or legal fees related thereto. Thus, one of the great cost generators in medical service delivery today, defensive medicine, continues unabated. All this thanks to Obama, Pelosi, and Reid.
Soros’s motivation for sponsoring “Justice at Stake” is simply to promote more liberal, progressive judicial legislation. Where he can’t own the Republican controlled state legislatures, he can have another leftist vehicle if he can own the state courts. Nevada voters should take pride in rejecting Soros’s attempt to buy the judges using the trial lawyers as “superior voters.”
DOJ Wants Foreign Interpretation of U.S. Constitution
Posted by Tom in Constitution, Immigration, Judiciary, Justice, Legal, Presidency on October 28, 2010
Not only is Obama’s Department of Justice corrupt in voter fraud cases which it should prosecute but won’t, but it now doesn’t object to foreign countries advancing arguments to interpret the U.S. Constitution in its suit against a State of the Union!
One more example of how un-American Obama and Holder really are!
Secret Selection of Judges?
I’m from the “show me” state, the state that led the nation in so called “reform” of judicial selection. The “Missouri Plan” became the model for many states. That type plan is now being put to the Nevada voters. You’ve probably seen the commercials in favor of this plan with Sandra Day O’Cconner.
Did you know that those commercials were funded by the rent-seeking leftist, George Soros. This billionaire who counts Obama as his employee is left of Stalin. But because of his leftist political connections in power, Obama being one, is a multi-billionaire. (Study his Brazil oil intersts!) So he can afford to give a measly two million to NPR with strings attached to cover state progressive issues. You see, the progressives have decided that they don’t quite own the judiciary in this country. They are free to make political deals, money deals, with the legislative and executive branches, but they don’t quite have the judges, yet!
How could they better do that but by making the process secret? How better than to sell secrecy to the public but by letting knowledgeable TRIAL LAWYERS recommend those to be selected?
In my earlier days I practiced trial and appellate law in Missouri, was legally licensed in California, and as a layman was chairman of Nevadians Judicial Information Committee. In that latter role I was often asked about judicial selection processes. My answer was that the public election process while not perfect was at least public. That is, it is not secret.
Contrary to their opinions of themselves, lawyers are not smarter than everyone else. They are not above the law. What they know about judicial selection they should inform the public of. In fact, they do, there are public judicial evaluation studies which bar associations publish at election time.
Today’s WSJ post on the Soros role on the issue, Soros Bets on Nevada, is worth the read. Its concluding line: “Nevada voters should send a message that their judiciary can’t be bought.”
Now, I don’t want anyone to think that George Soros is not smart. His media voice, NPR, fired Juan Williams today for no apparent reasonable reason, but for getting out of line with the liberal agenda. Soros knows where the power is. Who can fault him for his rent-seeking behavior. He, even better than Al Gore and his environmentalists, has profited from his knowledge. And, he has made billions by investing wisely, IN POLITICIANS!
Hussein’s Manipulation of Justice
The Department of Justice is supposed to be the most independent of all cabinet offices. Rightly so, since it has the power to investigate, to indict, and to prosecute. It is an awesome power, a power of trust, discretion and justice. It alone is the power not to prosecute after investigation, to nol pros. It is as close to the judicial power as power can get. It has traditionally been independent.
Enter Hussein and Eric Holder, gofer to Hussein. In the face of uncontroverted evidence of voter intimidation and against the advice of local, career Justice Department attorneys, Holder refuses to take a default, that’s uncontested, judgement against the Black Panthers. Why? Political motivation in Justice? Oh, are the Black Panthers black?
As bad, Hussein Obama ordered Holder to file a lawsuit against Arizona for its law enforcing federal law. Legally most experts agree that the lawsuit has no merit. No matter, it’s politics. Hussein while not having read the Arizona law, and refusing to enforce the federal law, is currying favor with the illegals who he hopes will vote, yes vote, for his leftists Democrats, excuse me, progressive Democrats!
Kris Kobach in his NY Post piece today, Behind US v. Arizona: pure politics, tells it like it is.
What a horrible degradation of justice in this country. It is easy to forecast trials like those in Cuba, North Korea, Iran, Venezuela, and Nazi Germany coming here soon. Speak against Hussein at your own risk! His misuse of justice for political purposes knows no bounds.
Pray that we will be rid of this ilk in the next election.
Leftist Shades of FDR–If you’re not worrying yet, then start!
Posted by Tom in Constitution, Judiciary, Statism on February 28, 2010
The past is indeed prologue. I cringed at the leftist thought process when reading Stan Isaacs article today in The Philadelphia Inquirer, Obama should expand the court. In other words, pack the court. Shame on me, I should not have cringed at all. We are governed by the radical leftist, the Constitution doesn’t matter, Obama appoints unconfirmed “tzars,” he rules, he dictates, checks and balances are meant to be evaded. “Reconciliation” is the latest example!
Comrade Isaacs correctly points out that the Constitution does not specify the size of the Supreme Court. The number of justices is set by Congress and has shifted between five and ten, but hasn’t budged from nine since 1869.
Some of us are too young to recall Roosevelt’s attempt to “pack the court” in the ’30s when the “nine old men” declared some of his New Deal legislation unconstitutional. In short FDR failed in his scheme. Isaacs suggest that Obama could “quarterback” a change loading the court with puppets doing his bidding. He further suggests that this is “change we could believe in!”
These people are dangerous, to the core. Pray for the sake of our country and our grandchildren that the Senate changes hands in November. The life appointments to the court, requiring Senate confirmation, are what ultimately guard our Constitutional values.
Tom Motherway
Sandoval’s Views on Judicial Legislation & Taxation?
Posted by Tom in Constitution, Judiciary, Nevada, Politics on December 1, 2009
Brian Sandoval’s rise in Nevada politics has been meteoric, so much so that he almost reminds me of that young fellow in Washington whose rise was built on blinding speed and little else. Although well grounded in the law and running as a candidate for the Republican nomination for governor, Sandoval should be prepared to explain his role as Governor Guinn’s Attorney General in 2003.
Some background is in order: In 1994 and 1996 Nevada voters overwhelmingly passed an amendment to the Nevada Constitution that required a 2/3 supermajority vote in the legislature to pass any tax increase. This amendment was added to a constitution that also required undefined funding for education.
In 2003 the Democratic majority in the legislature orchestrated a budget impasse by passing all budgetary items except for its proposed increase in funding in education which was blocked by over one third of the Assembly, all Republicans. The impasse continued through two special legislative sessions since the Democrats refused to cut the otherwise bloated budget and the Republicans refused to increase taxes.
Attorney General Brian Sandoval as the state’s chief legal officer advised Governor Guinn to sue the legislature in the Nevada Supreme Court. Sandoval personally delivered the petition to the high court seeking to get the court to intervene and get the increased public school budget passed.
Well, intervene the Supreme Court did, and in spades: In the infamous case of Guinn vs. Legislature, the court found a conflict between the two constitutional provisions and directed the legislature to ignore the 2/3 requirement and pass the increased taxes with a simple majority. The decision was ridiculed nationally by legal experts and by a majority of Nevada voters who found out that their vote meant nothing to Guinn and Sandoval. Governor Guinn a RINO would not face the press and had Sandoval take the heat. Sandoval’s explanation: “Everyone is going to have a different opinion on this, we just asked the court to require the legislature to balance the budget and fund education.”
The $836 million in additional taxes passed in 2003 produced such and embarrassing surplus that Guinn sought and got the Democrats to agree to a $300 million “give back” in 2005. The court’s decision was allegedly tainted by contact between Guinn and a couple of the justices so much so that Sandoval should have suspected the outcome before the petition was filed. The decision was subsequently repudiated by a succeeding Nevada Supreme Court.
The episode presents some serious questions as to Sandoval’s qualification for office.
Does Sandoval believe in the right of voters to expect that their vote means something? Over two thirds of the Nevada voters twice passed the constitutional amendment requiring a legislative super-majority to pass tax increases.
Does Sandoval believe in the separation of powers, legislative, executive and judicial provided by the Nevada and US constitutions? Legal scholars and the subsequent court decision confirm that courts have no more a right to compel legislation than governors do. Yet Sandoval asked the court to so compel the Nevada legislature. Political impasses demand political solutions–like budget cuts–which is exactly what the voters expected by passing the amendment twice!
Finally, and very troublesome, does Sandoval have any concept of economics and the effects of bloated state budgets and excessive taxes? His participation in the Democratic charade in 2003 would suggest he is as ignorant as Guinn in this regard.
I’m sure that the campaign for the nomination will vet these three important issues and more and I hope that our vigilant press will report them clearly and fairly.
Tom Motherway
‘Empathy’ in Action by Thomas Sowell on National Review Online
It is one of the signs of our times that so many in the media are focusing on the life story of Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court of the United States.
You might think that this was some kind of popularity contest, instead of a weighty decision about someone whose impact on the fundamental law of the nation will extend for decades after Barack Obama has come and gone.
Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.
If you were going to have open-heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is, or by the best surgeon you could find — even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?
If it were you who was going to be lying on that operating table with his heart cut open, you wouldn’t give a tinker’s damn about somebody’s struggle or somebody else’s privileges.
The Supreme Court of the United States is in effect operating on the heart of our nation — the Constitution and the statutes and government policies that all of us must live under.
Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril — and at the peril of our children and grandchildren.
“Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor, but words do not change realities.
Nothing demonstrates the fatal dangers from judicial “empathy” more than Judge Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.
When this action by the local civil-service authorities was taken to court and eventually reached the Second Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.
Fellow Second Circuit Court judge Jose Cabranes commented on the short shrift given to the serious issues in this case. It so happens that he too is Hispanic, but apparently he does not decide legal issues on the basis of “empathy” or lack thereof.
This was not an isolated matter for Judge Sotomayor. Speaking at the University of California at Berkeley in 2001, she said that the ethnicity and sex of a judge “may and will make a difference in our judging.”
Moreover, this was not something she lamented. On the contrary, she added, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
No doubt the political spinmasters will try to spin this to mean something innocent. But the cold fact is that this is a poisonous doctrine for any judge, much less a justice of the Supreme Court.
That kind of empathy would for all practical purposes repeal the 14th Amendment to the Constitution of the United States, which guarantees “equal protection of the laws” to all Americans.
What would the political spinmasters say if some white man said that a white male would more often reach a better conclusion than a Hispanic female?
For those who believe in the rule of law, Barack Obama used the words “rule of law” in introducing his nominee. For those who take his words as gospel, even when his own actions are directly the opposite of his words, that may be enough to let him put this dangerous woman on the Supreme Court.
Even if her confirmation cannot be stopped, it is important for senators to warn of the dangers, which will only get worse if such nominations sail through the Senate smoothly.
via ‘Empathy’ in Action by Thomas Sowell on National Review Online.