Conservative Hogwash: Activist Judges Unrevealed

This comes from an ultra-conservative advertisement seeking support for the Judeo-Christian Council

"With all the shouting and hand wringing by liberals like Ted Kennedy and John Kerry, you'd think that the recent appointment of Samuel Alito to the U.S. Supreme Court would lead to Americans having all of their Constitutional rights stripped away. The fact is, liberals have been subverting the Constitution by loading the federal courts with liberal ideologues for years."

Let's begin by examining who it is that is sending the ad and what their focus is at the moment. It is noteworthy that almost all of the ads I receive from the conservative sources to which I am subscribed always come with a sales pitch or a wallet pinch. But in this case the Judeo-Christian Council is officially known as the Judeo-Christian Council for Constitutional Restoration. Its stated purpose, as per its web site, is as follows:

"The Judeo-Christian Council exists to stop judicial activism by educating public servants and citizens about the problem and its solutions, ensuring that only constitutional judges are appointed, and enforcing the system of judicial accountability that prevents judges from legislating from the bench."

Since all federal judges are nominated by the president, confirmed by the Senate, and then appointed by the president, how can anyone but a "constitutional judge" get appointed?

As for enforcing the system of judicial accountability, I am a bit confused. Article III, Section 2 of the US Constitution sets forth the scope of judicial powers and authority. That scope is wide and diverse, and deliberately independent from all but a few deliberate checks and balances, which includes the "advice and consent" clause that gives the senate the authority to confirm or reject a nomination to the federal bench, and the "good behaviour" clause that is generally accepted to mean behaving in a lawful manner.

There is nothing in the Constitution that sets a standard of accountability in terms of judges decisions. However, the Constitution gave congress another checks and balance structure under its authority and powers: it set up the structure of the federal court system to include lower courts, appellate courts, special purpose courts, military courts and administrative law courts. The ultimate arbiter of any court ruling is in the appeals process. If a judge has made an error in a ruling or analysis of law, fact or case, then the next higher level of court--the Appellate Court or the Supreme Court--reviews the case and the relevant arguments, thus affirming or overturning the lower court decision.

These are the only standards and methods of accountability that are constitutionally sound. The framers of our government wanted judges to be free to make independent reviews of the laws and cases that come before the court without interference from politicians to allow for a greater possibility of justice and a lesser possibility of influence peddling and political exploitation.

There is no way for a judge to "legislate" from the bench. The judge reads the law, determines its precise meaning as is possible given the language, considers the conflicts that arise in law by examining precedents, looks to maintain the principles of the Constitution and its Amendments, and makes a decision.

If the president has done the job of selecting judicial scholars with expertise, legal skill, experience practicing within the legal profession, and an ability to be fair and just... then the senate gets a nominee that is potentially right for the job.

If the senate does its job of examining the nominee for his expertise and adherence to the principles emodied in the Constitution, and the nominee can satisfactorily demonstrate a working expertise of legal principles under close and stringent scrutiny, then we get a decent appointee to the federal bench.

However, presidents are not interested in sending qualified nominees to the senate. They are only interested in advancing a political or ideological agenda. Unfortunately, the senate is also entangled, enmeshed and entrenched in political and ideological agendas that keep qualified candidates from both the liberal and conservative sides of the political spectrum from ever being seated on the bench.

Legal skills, sound professional ethics, legal scholarship, professional experience and a sense of impartial justice are the three qualifying standards for our judges. Political affiliation, ideological agendas, single-issue litmus tests, and allegiances to a cause are not essential qualities for good judges... but these are the standards that our political leaders use today.

If we did a better job of seating judges on the bench by eliminating the political and ideological agendas we would have better judges. That is the only system for accountability allowed under our Constitution... and I would urge those that do not understand the system to study it better... and those that do not like the system because some judges refuse to see the world according to a narrowly-defined set of ultra-conservative pseudo-religious ideological tenets to cease their empty "holier than thou" rhetoric. The same goes for those that are from the other side of the spectrum that shout empty slogans, idele threats and foot-stomping for the sake of creating a spectacular nuisance of themselves.

The rhetoric being used includes political labels as curse words and challenges to do battle in a place and a time when we cooperation. Empty slogans, vague allegations and meaningless pseudo-analyses are used to stir the pot. Shouting from the rooftops over something that most of the people supporting the cause of "judicial activism" cannot intelligently discuss with any real definition, scholarly analysis or pragmatic purpose. The focus is not on obtaining the best judicial system possible, but on winning the "culture war" and proving to the other side of the spectrum how far astray "they" have gone. The focus is not on justice, but on winning at all costs and using the basest means possible.

But we have to ask why the situation is drafted in this manner. The answer to that question is on our television sets. We are comfortable with what constitutes the lowest possible standard, the least common denominator, and the smallest amount of work possible. We have lost our sense of pluralism and filled the voids left with polemic intolerance. We still maintain we are a great nation but are unwilling to really work at making us a great nation. We'd rather sit on the couch and watch "reality TV" and get lost in our notions of nostalgia.

"These activist judges have "found" justification in the Constitution for their leftist agenda; an agenda that could not be put in place through the normal legislative process. So pervasive have these "legislate from the bench" judges become that it is increasingly apparent to right thinking Americans that the time to end judicial activism is now!"

If a judge is going to make a decision that is in keeping with the principles of the Constitution, then those principles ought to be "found" in the document that structures our government and delineates authority and power as it is derived from the people. The justification for a decision ought not be based on the whim, personal conviction, political ideology or emotional state of the judge hearing the matter.

But most of those complaining about our government have not really made a study of the Constitution and spout out things they have heard. The fact is that most of those protesting judicial activism are focused solely on those judges holding an opposing political ideology and not on judges who hold a similar ideology. These protests--coming from the right and the left--are not based on the decisions, but excerpts of the descisions that the protestors pick through, largely ignoring the whole context of the arguments and the law applicable to the case. The protestors forget that justice is supposed to be blind to religion, ideology, whim, sympathy and folly. The law is supposed to be applied with empathy, compassion and principled understanding of the Constitution. The ultra-conservatives forget that their religious views and values are not inherently present in the law. The ultra-liberals forget that liberty and justice are not politically correct and relativistic.

"An American Bar Association poll found that by a margin of nearly two to one, the American people understand that judicial activism has reached a crisis stage. This large majority of Americans believe our courts are now out of control."

Which survey? What was its methodology? What was its structure? What was its sampling method? How many questions were involved? Was it structured to catch inherent biases? Was it done according to strict survey principles? Does it meet stringent psychometric parameters> We do not know these characteristics of the poll. The reality of our surveys and polls is that most are structured incorrectly, do not focus on something which can be measured in any meaningful manner, and are poorly interpreted by most people that evaluate the raw and processed data.

So quoting a survey and presenting some aspect of its results without presenting the all of the deatils is a huckster sham disguised as scholarship. It is no more meaningful than walking into a bar filled with curmudgeons under the influence of significant amounts of alcohol and asking if the government is doing a good job... at one end of the bar will be a loud mouth shouting yeas and at the other end of the bar is an equally loud drunk shouting nays.

"The Judeo-Christian Council exists to stop judicial activism by: (1) educating public servants and citizens about the problem and its solutions, (2) ensuring that only constitutional judges are appointed, and (3) enforcing the system of judicial accountability that prevents judges from legislating from the bench. But this is a task we cannot do alone. We must have the help of people like you who are willing to ensure that judges who overstep their authority are removed from the bench."

The JCC has failed on the first objective because it isn't educated about the problem itself. The second objective is meaningless drivel, as pointed out above. The third objective is unobtainable because it is patently unconstitutional in nature. Although not numbered in the above paragraph, the fourth objective is being reached because these folks are actually raising money to continue their drive. But the key to these objectives is the fifth objective: removing those who dare to disagree with their entrenched ideology from the bench. It is the sole purpose of this organization. Forget values that are derived from Judaism or Christianity. The claim of being "Judeo-Christian" is a ruse... a distraction to keep us focused on the religious aspect of the culture war. But the end product sought is to reform the judiciary into a completely tilted ideology.

"The Constitutional system of "checks and balances" requires your active participation. Congress won't take the necessary steps to begin impeachment proceedings without hearing from you."

The above paragraph sounds sincere, but it must be noted that it follows the pitch and pinch for your wallet. Your participation means reaching into your budget and giving up some dead presidents for a cause that is vaguely defined and capricious in nature. Some how reaching into your wallet is going to enhace that system of checks and balances... demonstrating once again that influence and access peddling is alive and well.

The argument against judical activism is largely one of myth and exaggeration. There are bad judges and bad decisions. Our system is not perfect. It is fatally flawed with humanity. All the more reason we should look to clearly defined principles rather than vague and arbitrary relativisms.

"Identified here are some of the most outrageous justices and their unbelievable rulings:

Judge Joseph Batallion (U.S. District of Nebraska) was the first federal judge to strike down a state marriage amendment."

Of course, no details are provided. We are not given the opportunity to review the entire decision. We do not even know who made the assessment that this was a bad or erroneous decision, never mind an actual case of judicial activism.

Judge John E. Jones, III (U.S. District of Pennsylvania) ruled that presenting schoolchildren with Creationism alongside evolution for balance violated the First Amendment.

Having read the decision being cited here, the evidence being presented by the ultra-conservative Christian Right defeated this petition before the court. Jones heard testimony from Intelligent Design experts that clearly stated that ID was a religious interpretation of creation. There was a presentation of the history for the development of Intelligent Design theory, and it was clearly traced back to Christian creationism. The judge was faced with a slew of decisions from the Supreme Court--many of which were initiated by conservative justices--that clearly supported the principle that the government cannot endorse--or deny--a religious doctrine (see Everson v. Board of Education, McLean v. Arkansas and at least a dozen other cases).

"Judge Lawrence K. Karlton (U.S. District of California) ruled the Pledge of Allegiance unconstitutional because it contained the phrase 'under God.'"

Face it. Not all Americans believe in God. In fact only about 40% actually attend church, temple or mosque on a regular basis (c.f. Michael Medved, "Hollywood vs. America"). According to some surveys almost 80% of Americans have a belief in God, but the exact nature of that belief is never a parameter of these surveys. In Hindu tradition a belief in God could mean Krishna, Kali, Shiva... all of which are considered an aspect of "God." Even the Muslim understanding of God is not 100% uniform in its nature. Shi'ites, Sunnis, Sufi and other sects of Islam have different understandings of God. Among Christians there is diversity as well. Certainly there are different understandings of God among Mormon, Jehovah Witness, Baptist and Catholic Christians...

But the court relied upon the establishment clause in the First Amendment, not Judge Karlton's personal beliefs. He followed our law exactly as it is written. According to those shouting about judicial activism, that is what he is supposed to do. Unfortunately, that part of the law seems quite unpopular with the ultra-conservative Religious Right. But they continue to ignore the fact that it is the establishment clause of the First Amendment that allows them to practice their faith freely... and they can put their trust in God and view the world as being under the authority of God as freely as they desire... precisely because of those 16 words amended to the document that created the United States of America.

"Judge Stephen Reinhardt (U.S. 9th Circuit Court of Appeals) held that parents' rights do not extend beyond the school house door and that a public school can convey to students "whatever information it wishes to provide, sexual or otherwise."

Again, we see that attack but not one shred of evidence to support the claim. Might as well be a bumper sticker or political banner at a Bush public appearance.

"It is hard to believe that balancing the teaching of evolution with a presentation of Creationism is a violation of the First Amendment."
Since there is over 50 years of court precedent on the subject, it is not hard to believe at all.

"Moreover, it is shocking that public schools, spending YOUR money, have been determined by Judge Reinhardt to know better what information should be provided to children than their own parents, 'sexual or otherwise.'"

Parents can choose to support their own vlaues and religious beliefs by sending their children to private schools or home schooling. As long as there are options, then there can't be any legitimate beefs regarding values. As for the tax money, even those without children pay taxes to support schools and higher education in fulfillment of the six basic purposes of the Constitution... Anyone interested might try reading the Preamble some time.

"Go here to make your voice heard for impeachment of these activist justices!"

What part of the "good behaviour" clause do we not understand? Impeachment of a sitting judge or justice has to be based on bad behavior, not decisions we disagree with because they do not align with out ideologies.

"Unelected justices have overstepped the Constitution in so many instances, that common sense and legal rulings all too often have NOTHING in common. Worse, once a ruling is handed down and "precedent" is set, the legal ruling is treated as law."

There is nothing in the Constitution that mentions common sense. In any event, there is not much of that commodity (common sense) being shared these days. Certainly there is not much sense in touting the fact that our federal judges are not elected... of course they are not elected... that is not how the Constitution is written. As for precedent, blame England... that is where we inherited Common Law, case precedents and the principle of "stare decisis." We could go across the pond and beat up Tony Blair, but that would only make us feel better... it would not change the Constitution.

"This is how, in spite of a clear proclamation in our Declaration of Independence that all are "entitled to life, liberty and the pursuit of happiness," the Supreme Court found a "right to abortion" in the Constitution, where none exists."

The problem here is that the Declaration is a beautiful piece of history... but it has no standing in our courts of law. The Constitution is our "supreme law of the land" and we must draw our governmental structure and first principles from it. The funny thing is that for all the betaing of chests for "strict origianlism" and "intent of the framers" we hear in regard to judicial activism, there are many protestors that seem to conveniently forget those concepts in order to mislead the debate.

"The Judeo-Christian Council is taking action and is pursuing the impeachment of these activist justices. This isn't a new idea, but is a remedy that was put in place by the Constitutional founding fathers and has been used throughout America’s history. Of the sixteen impeachments in American history, twelve were of federal judges. In the late 1980s alone, there were three impeachments of federal judges."

Great strategy. Start a witch hunt based on religious beliefs and political ideology that is so much in the wind that even the proponents of the argument cannot reach consensus or consistency. It is hard enough to get good judges on the bench now... let's see how difficult it becomes when a witch hunt is in full swing.

But again, there are no real facts presented in these statements about impeachment. Just the barest references and no details.

"The first impeachment of a federal judge for judicial activism took place in 1803. However, in that day they did not call it "judicial activism," but more appropriately described the judicial conduct as "contrary to his trust and duty as judge" and "in violation of the laws of the United States."

The reason they did not call it judicial activism is that the term is a made up phrase that does not constitute an impeachable offense. Violation of oath, duty or law are grounds for impeachment. And what does it say when over the course of approximately 216 years of constitutional government only 12 out of hundreds of federal judges have suffered impeachment? It says that our imperfect system works pretty well.

My grandfather was a pragmatist... he taught me not to monkey with something that works as well as our judical court has over these two centuries.