Next we should starve the courts

Town Hall ^ | April 12, 2005 | Phyllis Schlafly

[WaterDragon]

The courts so purposely humiliated Congress in the Terri Schiavo case that some U.S. representatives are finally beginning to talk back. Non-elected judges have flagrantly abused the legislative and executive functions of government for so many years that we wonder why a reaction has taken this long.

With the whole world watching, a mere probate judge in Florida thumbed his nose at a congressional subpoena and refused to comply. Then the federal judiciary closed ranks behind him, asserting its independence from and supremacy over not only an act of Congress, but even over the life of an innocent and defenseless woman.

Eleventh Circuit Judge Stanley Birch stuck in the knife, asserting that Congress unconstitutionally "invades the province of the judiciary and violates the separation of powers principle." We marvel at the chutzpah of a federal judge charging Congress with violating the separation of powers after we've endured years of judges legislating from the bench, rewriting our Constitution, distorting our history, assaulting our morals, saving vicious criminals from their just punishment, raising taxes and inflicting us with foreign laws.

When a man's honor is impugned, he can pretend he didn't hear the insult or he can come out fighting. Congress can't pretend it didn't hear Judge Birch's insult, so Congress must take action to curb the imperial action of supremacist judges.

Rep. Patrick McHenry, R-N.C., responded that we saw "a state judge completely ignore a congressional committee's subpoena and insult its intent" and "a federal court not only reject, but deride the very law that Congress passed.

[Mudboy Slim]

Yer right, but nowadays I think too many attorneys a being successful in subverting that same invaluable document.

FReegards...MUD

[The Great Yazoo]

the insurance industry is notoriously difficult to reign in.

Because of the incestuous relations between the regulated and regulators (and legislatures). A sharp dose of de-regulation would help here. Then insurance companies (much to their horror) would have to compete on the basis of price and customer service.

[general_re]

How do you determine what's right and what's wrong?

I think PV has addressed that in his previous post - "right" decisions ("good" activism) are ones we agree with, and "wrong" decisions ("bad" activism) are ones we don't agree with. Easy, right? ;)

[The Great Yazoo]

When lawyers were drafting the Constitution, physicians were prescribing leeches and bleeding.

Both professions have come a long way.

[OhioAttorney]

I also believe instituting a LOSER PAYS clause in Tort cases would go a long way towards ending some of the more ridiculous abuses of our Tort system.

You may already be aware of this (and I'm sure atlaw is), but just in case: the U.S. is actually one of the only nations (and it may be the only nation) in which each party to a civil suit bears its own costs no matter who wins.

The proposal you suggest does get debated every once in a while among legal scholars and such, but it's one of those issues where there are good arguments on both sides and no clear winner.

[general_re]

...Korematsu, which made Mark Levin's shortlist of 'activst' decisions despite the fact that it involved the SCOTUS upholding a probably-unconstitutional executive order from FDR.

You're kidding, I hope. Levin really wrote that? Yearrrgghhh.

[OhioAttorney]

Yer right, but nowadays I think too many attorneys a being successful in subverting that same invaluable document.

Very nearly everyone will agree about that. The disagreement will be about which ones are which.

[OhioAttorney]

You're kidding, I hope. Levin really wrote that? Yearrrgghhh.

No, I'm not kidding; it's one of the four examples he gives early on in Men in Black so that we'll all know what he's talking about. (Another is Plessy v. Ferguson, by the way, so feel free to Yearrrgghhh again.)

What's even funnier is that toward the end of the book, he comments favorably on FDR's court-packing plan as a way to keep the judiciary under control. I guess he either didn't notice or didn't care that Korematsu was the sort of decision that resulted.

[atlaw]

"[A]re you saying the insurance companies are simply failing to pass their savings onto the consumer?"

That's the gist of it. Which raises the touchy question of whether the high medical malpractice premiums bore any significant relation to litigation losses in the first instance.

Also, the "loser pays" idea has been kicked around for a long time, and is a fixture in many other common law countries. I'd like to see some variation of it along the lines of universal entitlement to seek recovery of costs and fees from a losing plaintiff (as opposed to automatic entitlement to recovery), but there's vocal and trenchant opposition to overcome.

[OhioAttorney]

I'd like to see some variation of it along the lines of universal entitlement to seek recovery of costs and fees from a losing plaintiff (as opposed to automatic entitlement to recovery).

I've seen proposals of that sort as well, and I too like that idea much better than I like automatic recovery.

[atlaw]

Because of the incestuous relations between the regulated and regulators (and legislatures).

This is unfortunately too true in Texas. The regulations range from embarrassingly favorable to ridiculously punitive (the latter, oddly enough, right around election time). It's alot like the minimum wage -- either ineffective or pernicious, which is a pretty good argument in and of itself for some significant deregulation.

[OhioAttorney]

When lawyers were drafting the Constitution, physicians were prescribing leeches and bleeding.

Both professions have come a long way.

Hmm. True, but probably not the best argument I've ever seen for demanding that judges stick to 'original intent' ;-).

[general_re]

You know, I haven't read his book yet, mainly because I've always gotten a bad vibe from Levin in general - considering that logical consistency is obviously not on tap in his latest work, I see no reason to question my gut feeling. On the other hand, what the hell - 20'th century jurisprudence is littered with folks who discarded principle in favor of noble ends, so what's one more, right?

[TAdams8591]

Well said. I couldn't agree more.

[atlaw]

Some folks are very literal minded. : )

[OhioAttorney]

You know, I haven't read his book yet, mainly because I've always gotten a bad vibe from Levin in general - considering that logical consistency is obviously not on tap in his latest work, I see no reason to question my gut feeling.

I think your gut feeling is correct. To put it mildly, and without sidetracking this thread into a review of his book: Mr. Levin has not succeeded in impressing me with his legal acumen in general, and logical rigor is not exactly on display in MIB.

[general_re]

These are all excellent questions you raise - if (when) you get a satisfactory answer to them, be sure to ping me ;)

[atlaw]

Interestingly enough, there was rider on a relatively recent Texas bill (the principal bill was for the unremarkable right to establish seperate dockets for unimpaired asbestos plaintiffs) that would have permitted asbestos defendants to seek recovery of fees and expenses from the plaintiffs.

An amazingly bone-headed political move (I'm sure you can hear in the background the shouts of "picking on the victims to line the pockets of the evil corporations"). Not surprisingly, the entire bill died in committee.

[general_re]

You know, Levin does post here from time to time - I distinctly recall being unimpressed by his style and his reasoning in the past, but perhaps you'll get the opportunity to see for yourself ;)