Posted on 03/28/2005 9:30:29 AM PST by Wallace T.
The case of Terri Schiavo is framed by many, especially in the Christian Right, as a right-to-life issue. The right to life is an important theme. A more pressing problem is the overarching power of the judiciary, a power so evident that a probate court judge, nearly at the bottom of the judicial hierarchy, successfully stood down the U.S. Congress and his state's governor. Judicial supremacy was never the intent of the Founders, but that is what we have in America today. It is fundamentally an elitist and undemocratic system. Granted, most conservatives would not be complaining were the judicial benches filled with clones of Robert Bork, Antonin Scalia, Clarence Thomas, or the late Clarence Manion of Notre Dame Law School. However, that is not the case.
Popular election does not seem to work as a check on judicial power. Most states allow for such, but the election process is such that it is very difficult to determine where a particular candidate stands, even from conservative voter guides like those put out by the Christian Coalition. As for the Federal system, appointment of judges for life terms has been an unmitigated disaster since the founding of the republic. John Marshall, the great-grandfather of judicial overreach, was of the generation immediately following that of the Founding Fathers. Roger Taney, Oliver Wendell Holmes, Felix Frankfurter, Earl Warren, Warren Burger, William Brennan, Harry Blackmun, and Ruth Bader Ginsburg are examples of the danger of lifetime tenure.
The Constitutional amendment process is cumbersome. Even the Equal Rights Amendment, favored by both parties, the mainstream media, and the intellectual elite, failed to achieve approval by the requisite 38 states, though it was passed by Congress. Right-to-life, anti-flag burning, and school prayer amendements have not made it out of Congress despite 30 years of trying. All three amendments have been proposed to override Supreme Court decisions that became de facto legislation.
The impeachment process is also a seldom used and ineffective tool of control. It has been used on the Federal level only 12 times in 216 years against standing justices. Were Judge Greer to be impeached on a state level, the burden of proof would be on the Florida legislature to show that he received payoffs or other remuneration from Schiavo, Felos, or another party to decide as he did. Information on the Internet indicates that he ignored evidence that contradicted the plaintiff's claim that Terri was in a persistent vegetative state and of the compromised position of Michael Schiavo due to his long-term relationship with another woman and his abusive actions toward his wife. But that decision may not involve personal corruption, but adherence to a pro-death ideology on Greer's part. Such adherence is not an impeachable offense, deplorable though it may be.
Adherence to and trust in the GOP are common advice proffered. Yet in the last 30 years, the Republican Party has controlled the White House for 18 of them. At least one house of Congress has been held by the Republicans for 16 of those years. All but two appointees currently on the high bench were nominated by Republican presidents. Of these seven, only three (Rehnquist, Scalia, and Thomas) could reasonably called conservative. Let's not forget that Judge Greer is a Republican, elected from a county that President Bush carried, though narrowly, in 2004. The nine RINOs in the Florida Senate failed to support the efforts of Governor Bush to save Terri's life, helping ensure her death. Many of them were elected from the Republican leaning west coast and central parts of the state. Trust in the GOP is misplaced, though it still is the lesser of two evils.
What is to be done? Simply stated, the power of the judiciary must be curbed. First, all decisions of the Supreme Court must be subject to review by Congress, with a decision by that court to be overturned by a majority vote of both houses. Second, the President must be assured that Congress alone is the only court to which he is subject while holding the office of the presidency. Similar measures should hold on the state level respective to the legislatures and the governors.
Admittedly, this is no perfect solution. It is likely, for instance, that Congress would not overturn Roe v. Wade, as indicated by a vote two years ago, where even some supposed conservatives as Kay Bailey Hutchison of Texas indicated their support for said decision. However, it would at least put our elected representatives on record as being pro-abortion and pro-big government. Neither legislators nor executives, on both State or Federal levels, will be able to hide behind the black skirts of the judiciary.
"Granted, most conservatives would not be complaining were the judicial benches filled with clones of Robert Bork, Antonin Scalia, Clarence Thomas, or the late Clarence Manion of Notre Dame Law School. However, that is not the case."
I find it sad that even many conservatives wouldn't have much complaint if the system were being abused, so long as the outcome is alright. You know we're in trouble when people are less concerned with how our great Consitutional system is getting things done than they are about the outcome of everything. Judicial activism is judicial activism, regardless of who sits on the bench.
Or, in Judge Greer's case, the "wet work".
George Greer is not a "probate judge, nearly at the bottom of the judicial hierarchy." He is a Circuit Court judge, the highest level of sitting trial judges in the Florida court system.
Only the discipline of impeachment can control the courts. The FedJudges who ignored the will of Congress in the Schiavo case could be impeached without any loss to the nation. Another possibility is to eliminate whole circuits in an economy move, and eliminate those positions.
Only the discipline of impeachment can control the courts. The FedJudges who ignored the will of Congress in the Schiavo case could be impeached without any loss to the nation. Another possibility is to eliminate whole circuits in an economy move, and eliminate those positions.
Our new ruling class consists of utterly corrupt, power mad judges and the unregulated Trial Lawyer, Inc. industry.
The only question is can we get Congress to do the job?
I disagree with you. Has this been done? The political affiliations of judges matter just as much to the judges and politicians who elect/confirm/fillibuster their ascent to the bench. There is always a 'side' to take.
1. Interpretation of Constitution.
This Constitution shall be interpreted strictly, according to its terms and in accord with the intent of the original framers. It is not a "living" Constitution. It does not change as society changes; rather, if the society governed by this Constitution changes, then the people may pass amendments to this Constitution in the manner provided herein. There are no "penumbras" or "emanations" that result from the enumerated rights afforded by this Constitution. Any court interpretations to the contrary are hereby null and void, and subject to reinterpretation in accord with these principles.
2. Judicial Branch Governance.
A. Duty of Judicial Officers. It shall be the duty of all judges and judicial officers of the United States to uphold the Constitution and all validly-enacted laws of the United States, to find facts fairly and to interpret the Constitution and Federal laws in accord with their fair meaning, without regard to personal biases or preferences. Judges shall not use their position to attempt to create or change laws or to administer the laws; to do so will constitute an offense against the Constitution known as Judicial Usurpation of Power, an offense which shall constitute grounds for removal from office.
B. Reaffirmation of Allegiance to Constitution and Reappointment to Office. In order to ensure adherence to the Constitution, as amended hereby, all judges currently in office as of the date that this Amendment becomes effective shall publicly take the following oath before they may resume their duties:
"As a Judicial Officer of the United States of America, I swear that I will uphold its Constitution and Laws, and, to the extent those have been amended by the 28th Amendment to the Constitution, I have reviewed that amendment and I will abide by the principles of construction contained therein."
Any Judge refusing to take this oath within 30 days following the effective date of this Amendment shall be deemed to have resigned his or her position.
C. Nomination and confirmation. The President's nominees to vacant Judicial Positions shall receive a vote from the full Senate, sitting as a body, within 60 days after nomination. If no vote is made within the 60 day period, the nominee shall be considered confirmed, and may take office immediately.
D. Removal from Office. In addition to the procedure for impeachment contained herein, judges may be removed from office as follows:
i. Upon a charge of Judicial Usurpation of Power, initiated by
a. The President, together with a statement of the basis for the charge; or
b. A Petition, signed by the executives of more than 50 percent of the States of the United States, and describing the basis for the charge; or
c. A resolution by a majority of the House of Representatives; and
ii. Following confirmation of the charge by a majority vote of the Senate.
The Senate shall act upon any charge within 60 days after it is presented. Failure by the Senate to timely act on the charge shall act as confirmation of the charge.
Failure to act in the face of evil is cowardice that empowers evil.
Thanks for the correction. However, Judge Greer was subject to two levels of review in the Florida legal system: the appellate and the state supreme court.
Your proposed amendment is very well thought out. However, it does not address the power of judicial review of acts of Congress. Judicial review itself needs to be placed under the purview of Congress, by a means other than the process of amending the Constitution. Additionally, the President needs to have Congress, and Congress alone, as the only body with the authority to judge his acts while holding office.
BTTT
The main thing is, the founders intended that most of the important decisions in this country would come from the people's representatives in Congress, not from unelected tyrants. We need to restore that framework.
Agreed. It will take a massive amount of popular sentiment and a Congress willing to re-assert what should be its primary role in the governance of this country.
The law Congress passed indicated a "de novo" hearing was appropriate. Judges are not above the law, are they?
Not unless the judiciary prosecutes one of its own, or in the rare case of impeachment by Congress or a state legislature. America abolished titled nobility by virtue of declaring independence from Britain in 1776. Some 229 years later, it appears a new nobility has arisen in this nation.
Like the corrupt French aristocracy before the storming of the Bastille, the Anglo-Irish ascendancy that repressed the vast majority of Irishmen, and the Spanish officials who ran roughshod over Latin America before the wars for independence, the judiciary needs to fall, sooner rather than later.
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