Tuesday, February 22, 2005

Judicial Appointments Are Everything

President Bush is about to make a mistake. This Bruce Fein piece says it all. And in light of this, the importance of the judicial appointments issue cannot be understated.

Fein's initial point is that depriving the Democrats of the use of the filibuster, because the filibuster deals with exclusively legislative matters, is permissible, because permitting it as it has been used--to obstruct judicial appointees with whom Democrats do not politically agree--is possibly an unconstitutional breach of the separation of powers. A floor vote would easily confirm each of these judges. But his secondary point is critical.

Bush's legislative agenda cannot trump court appointments. Judges and justices remain on the bench for life. These people will very likely be in a position to affect the law for decades to come. But problems arise when members of the bench forget that the U.S. Congress and state legislatures--the people most exposed to the ballot box--are the law makers. And when judges take it upon themselves to ignore that separation of power, tyranny begins to encroach upon liberties reserved to the people. Judges decide cases on the law, they don't re-cast it. They are bound to the Constitution's four corners. When they step outside that constraint, they become a legislative oligarchy, unaccountable to the people.

I see it all the time as a lawyer. I was in court last week, and watched a judge, despite my comment that he was exceeding his statutorily-granted powers, take action which was outside the jurisdiction of his court. He violated the law, because that seemed right at the time to him. But it's never right. It's never acceptable to set the rule of law aside for fiat. Perhaps a few good men could responsibly exercise such power, but there are many more who would not.

And the Federal bench is no exception. Here are a few names which might jog some memories: John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg--activist judges who rule on what seems politically "fair" not on what the law says. And this is how the left operates its political agenda. They know that there are almost no legislatures, save for that of California, which will enact their agenda. So they try to slip it in through friendly judges. This is a fundamental violation of the way our government operates, and the subject of my next post, but it represents a true threat to our liberties.

The president has a duty to ensure that it is he, not the Democrats in the Senate, who determines the makeup of the judiciary. Because the appointment of strict constructionists--people who read the law written by the legislatures and passed by the executives, and apply it whether they personally like it or not--is the only guarantee that the separation of powers will continue.

Which brings me to the health of Chief Justice William Rehnquist. It amazed all of us that he did not retire last June. It was all the more astounding that he continued in his job despite thyroid cancer and treatment. And if the rumors are to be believed, it will be all the more astounding if he survives the remainder of this term. And when the inevitable occurs, we will almost certainly witness two appointments. The promotion of Antonin Scalia or Clarence Thomas to Chief Justice and the appointment of a new associate justice.

And then the battle will be joined. Will he appoint people whom we can trust, or will he pick people who will likely fall prey to the same unprincipled judicial advocacy? Because an entire legislative agenda can pale in comparison to the value of a judge who is true to the law--or one who is not.

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