Rosen: Disdain for Constitution (re: judicial activism)

I've heard liberals express their dismay at all the fuss conservatives make over judicial activism. Some even claim to be unclear about the meaning of the term. Perhaps a recent remark of Sen. Harry Reid of Nevada, the incoming Senate minority leader, will serve as an illustration.

Appearing Dec. 6 on Meet the Press, Reid was asked to comment on Supreme Court Justice Clarence Thomas as a possible replacement for ailing Chief Justice William Rehnquist. "I think that he (Thomas) has been an embarrassment to the Supreme Court. I think that his opinions are poorly written," said Reid.

Now, if Clarence Thomas were an African-American, liberal Supreme Court justice, you can be sure Reid would never have "dissed" the man like that. (He might even have called him a "credit to his race.") A white Republican saying such a thing about a black jurist would have been accused of racism. But rare black conservatives, like Thomas and Condoleezza Rice, are apparently fair game.

I suspect it's not the quality of Thomas' opinions that Reid objects to; it's the substance. Thomas bases his decisions on the principles of limited government and strict constitutional constructionism. It's not like Thomas is a lone wolf, winging his opinions and jotting them down on the back of a napkin while watching NASCAR races on TV. He, and every other justice, is supported by the cream of the crop of law school graduates and brilliant staffers anxious to pad their résumés by clerking for the Supreme Court. The opinions they help their bosses write are painstakingly researched, crafted and vetted.

But Reid was just warming up. Here comes the best part and an insight to the mindset of judicial activists. Reid volunteered that he could support Thomas' fellow conservative on the high bench, Antonin Scalia, for chief justice. (It should be noted that Scalia and Thomas routinely vote on the same side employing similar reasoning. I guess Reid finds these decisions more palatable coming from a white conservative than from an uppity black who fails to vote just like Thurgood Marshall did.) Said Reid, "I cannot dispute the fact, as I have said, that (Scalia) is one smart guy. And I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute \[italics mine]." Aha!

When Reid says he disagrees with Scalia's results but finds it hard to argue with his reasoning, he lets the cat out of the bag, revealing his disdain for the rules of the game: the U.S. Constitution. In other words, Reid would prefer a tendentious approach, working backward from a predetermined political outcome and contriving a reinterpretation of the Constitution to get there. This, in a nutshell, is judicial activism.

Scalia (and Thomas and Rehnquist) plays by the rules and restricts his decisions to the boundaries established by the Constitution. Liberals refuse to be constrained by the Constitution. If they can't get a new law passed through the legislature, they circumvent that branch and shop for activist judges who will legislate from the bench. Their only standard is that the ends justify the means. To them the Constitution isn't our legal foundation; when it's inconvenient it's merely an obstacle.

The chief rationalization of judicial activists is that the Constitution is a "living document." By that they mean liberal judges, appointed for life, rewriting the Constitution at will to achieve contemporary political objectives. This is how the Massachusetts Supreme Court miraculously discovered, unnoticed by their predecessors for more than 200 years, a constitutional right to same-sex marriage.

This practice is not only anti-democratic, it's a violation of the fundamental principle of checks and balances among our three branches of government.

The Founders didn't build an impenetrable force field around our basic governing document. They anticipated the need for modifications and additions to the Constitution, and provided a process for it. They're called amendments. We've had 27 of them. When there's a compelling need, it requires ratification by three-quarters of the state legislatures. I know that's a more difficult task than enlisting the trendy political whims of five Supreme Court justices, but it was designed that way for good reason. That blindfolded lady balancing the scales of justice wants a commitment, not a one-night stand.

Mike Rosen's radio show airs daily from 9 a.m. to noon on 850 KOA.

Impeachment, nullification, interposition, and the use of Article III, Sec. 2 of the Constitution all need to be considered.

We need to hold these officials accountable through impeachment, recall, nullification, interposition and arrest where necessary.

I am so seek of this endless deference to judicial tyranny.

When oh when will some elected executive officer in some state or federal capacity, in fulfilling his constitutional duty to honestly interpet the constitution (federal or state) just disregard the unconstitutional rulings of any court and dare the legislature to impeach him for it? When will some legislature impeach just ONE judge for an unconstitutional ruling?

To say that the courts have the final word on the constitutionality of a law NO MATTER WHAT THEY RULE is to say that the system of checks and balances envisioned by the founders does not exist any more.

Alan Keyes gave the best summation of this issue that I've heard yet. He said that every branch of government has a duty to honestly interpret the constitution. If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional. If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful. Congress can and should impeach federal judges for blatently unconstitutional rulings that manufacture law.

Lest anyone consider this formula has a recipe for chaos, then I submit to you there is no chaos worse than an unchecked oligarchic Judiciary. We are not living under the rule of law when judges make law up to suit their whims has they engage in objective based adjudication.

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