It's Time to Take On the Judges
the weekly Stanaara It's Time to Take On the Judges In every time of crisis there is an opportunity—an opportunity to change perceptions, to alter dynamics, to shift the balance of power. We are...
...Two years ago, a court in Colorado voided the state's Amendment 2, which received 814,000 votes...
...Following that model, Congress can enact other laws that limit court jurisdiction and introduce other reforms of a technical nature...
...The opportunity is to change public perceptions of the courts, to alter the dynamic between the courts and American society, and to shift the balance of political power back where it belongs, to elected officials and the American people...
...This argument is outdated in the modern bureaucratic state...
...Now, we are not fans of Prop...
...Such troubles have led some of our conservative brethren to despair, to question whether the American regime has lost its legitimacy...
...CCRI received 4.7 million votes...
...True, there have been failures—the failure to overturn Roe v. Wade and its progeny, the failure to restore prayer in schools, and the ruling against term limits...
...Similarly, the court was heading toward granting an almost unconditional First Amendment right to produce, distribute, and sell pornography, and a similar popular outcry somehow made the court pull back and allow states and localities to impose and enforce at least some restrictions...
...In doing so, he was following another California court ruling that put on hold 1994's anti-immigration initiative, Proposition 187, which received 5 million votes...
...Supreme Court agreed in the now-notorious Romer v. Evans decision, one of the worst and most illogical since Roe v. Wade, in which Justice Kennedy explained that Amendment 2 was unconstitutional because voters had acted out of "animus"—though the only evidence of animus was that Coloradans did not want homosexuals to have special rights...
...These are not cases in which a judge merely delayed the implementation of a measure for a few weeks...
...Judicial discretion requires any judge to take very seriously an action that would reverse the will of the people as expressed in law—to bend over backwards, in fact, to avoid making such a determination...
...The crisis is the brazen interference of the judicial branch of government in the decision-making authority of the American electorate...
...But the model still stands...
...Thus there is reason to consider whether it should be accountable, whether it shouldn't be subject to the same ultimate check as all other political actors: the loss of power...
...Conservative politicians have long made hay with the claim that they would appoint tough-on-crime judges who would strictly interpret the Constitution...
...It has not...
...Laws are enacted out of animus all the time...
...But a law is, and should be, a law until such a ruling is handed down...
...Actually, it's not such a radical proposal...
...The act, which is now law, tries to end judicial micromanagement of prisons, making sure that judges no longer use a single inmate's case to assert broad authority over the size of prison cells, the number of criminals who can be incarcerated at any given institution, and the like...
...That is what is so mind-boggling about the California judges and the two referenda they have blocked...
...Spencer Abraham of Michigan...
...That sort of thing should not happen, especially in cases of referenda, even if the judges want it to...
...The U.S...
...And by doing so, they have cast the law into limbo...
...We are in just such a time of crisis, and it is fitting to recognize and act on the opportunity...
...The formal hearing ordered up for December 16 will doubtless be followed by a preliminary injunction and then by a trial that is likely to last a full year...
...But there also need to be more limited approaches...
...We are speaking of precise and incremental reforms, such as the Prison Litigation Reform Act of 1996, proposed by Sen...
...George Pataki to Republican senators to the president himself, Baer was condemned and threatened with impeach-ment—and he reversed himself...
...Not only will such legislation make the criminal-justice system work better, but it will send a powerful message to the judicial branch of government...
...The virtue of this argument as a political issue is obvious...
...Take the recent case of Judge Harold Baer in New York...
...Because of these limits, it was proper to isolate the courts from popular pressure...
...The crisis is real...
...That could never happen, presumably, because the politician and his party would cry murder...
...He allowed a confessed drug dealer to go free because he said the police had arrested her for racist reasons...
...These are cases in which judges are using procedure and procedure alone to void legislation...
...Now there can be a new rallying cry: Republicans will oppose the nomination and confirmation of any judge who does not agree to abide by the will of the people except in extraordinary circumstances—except when that will is genuinely unconstitutional...
...That kind of judicial intervention has been a nightmare for governors and mayors who find themselves unable to explain to furious voters why bad guys are not brought to justice...
...187, and were we voters in California, we might well have voted against it...
...And a presidential candidate looking for a powerful issue in 2000 might well look here, and might consider a radical proposal such as term limits for federal judges...
...The message: The political system will fight back against the judicial assertion of authority over matters that are rightly decided in the voting booth and in legislative bodies—and not by a man dressed in a robe, sitting in a high chair, banging a gavel...
...The original debates on the Constitution explain why federal judges were granted lifetime tenure: The judicial branch of government was the least dangerous, had a limited role, did not make policy, and served almost exclusively as a check on policymakers...
...these judges have, in essence, preemptively treated two laws as unconstitutional before that determination has been made...
...The assault on popular will has gone farther than this...
...The judge, whose astonishing record is revealed by Matthew Rees on page 10, denied the will of the people until there could be a formal hearing this week—and did so by making the Orwellian argument that the denial of preferences to blacks and women is a violation of their right to equality...
...187, CCRI will probably be blocked indefinitely...
...That is what government by "consent of the governed" implies...
...The judicial branch has, unfortunately, become a political actor...
...Three decades of judicial activism have led to this pass...
...And in any case, where in the Constitution is "animus" condemned...
...But a referendum must speak for itself, and the mere fact that millions of votes were cast in its favor does not give it a voice loud enough to still these judges...
...Amendment 2 barred localities in Colorado from granting homosexuals special status, and this, the Colorado court ruled, was a violation of the Fourteenth Amendment...
...such isolation seemed to pose no dangers...
...does this mean they are all illegitimate...
...The other week a judge in Cali-fornia—a man, remember, with only one vote in any election—suspended the implementation of the California Civil Rights Initiative...
...What is new here is the apparent willingness of courts nationwide to block the direct expression of popular will in elections...
...The pressure doesn't even have to be that direct...
...It is time to ignite a popular outcry against unelected officials and their efforts to invalidate the results of elections...
...There is such a thing as "judicial discretion," which has no legal standing but does have moral standing...
...For, like Prop...
...Some scattered efforts have been remarkably successful...
...To consider how radical a step this is, imagine a court ruling that a candidate who won an election could not be sworn into office because his policies were based on "animus...
...indeed, one of the reasons that this judicial usurpation has gotten so parlous is that few serious and sustained efforts have been made to reverse it in the realm of politics...
...By thoughtful consideration of proposals like judicial term limits, and through the steady publicizing of judicial outrages, populist ire can be tended, harnessed, guided, and used to bring judges to heel— thereby helping to restore true constitutional government...
...It is, of course, part of our tradition that courts determine whether a piece of legislation is constitutional...
...But we are not, and again, the judge who blocked 187 has only one vote...
...From Mayor Rudy Giuliani to Gov...
...Judicial usurpation of legislative authority is an old story...
...Twenty-five years ago, a nationwide revolt forced the Supreme Court to reverse its movement toward a ban on capital punishment—a hilarious "interpretation" of the Constitution, since capital punishment is mentioned there by name...
...after all, what kind of explanation is, "Well, there's this judge who says we can only house 1,100 people in that prison, so it's full...
Vol. 2 • December 1996 • No. 14
