Judicial Insanity - Charles Krauthammer on Judicial Activism and the Conservative Response

Washington Post ^ | April 22, 2005 | Charles Krauthammer

[JBW]

Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.

[JBW]

Criticizing judges for imposing their political views is fine. Using the power of impeachment to punish judges for unpopular opinions comes perilously close to upsetting the separation of powers.

[nj26]

hmmm....

[notigar]

Good article.

[SE Mom]

The grounded sanity of Krauthammer is reassuring.

[Sacajaweau]

KRAUTHAMMER IS THE BEST ANAYLIST AND REALIST AROUND.

[Mamzelle]

Bah. Kraut at his loftiest. "Delirious", indeed!!

It is so mellifluous, m'dear, to have a calm, wise head at the pundit chair, says Charles. Someone not delirious.

I'm so sick of these pretentious guys, all trying to out George Will each other. All their victorian sentence structures, ersatz-scholar condescension...

I want some new pundits.

[PMCarey]

I love Krauthammer's work and rarely do I disagree with him, but while he states the problem precisely in this article, his concluding paragraph is a groveling plea to the judicial overlords:

Yet the recent eruptions of DeLay, Cornyn and some of their fellows may, like FDR's court-packing overreaching in 1937, have a salutary effect after all -- scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.

Yeah CK and I got a bridge to sell you.

[Bahbah]

Yet the recent eruptions of DeLay, Cornyn and some of their fellows may, like FDR's court-packing overreaching in 1937, have a salutary effect after all -- scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.

This is my hope. I think it is a good thing for them to hear that people are paying attention and are really angry.

[PhiKapMom]

I agree with Krauthammer. When DeLay critized Justice Kennedy for using the Internet when case law is on the Internet, then he lost me with his rantings as he doesn't have a clue.

During the Shiavo case, Find Law was very popular and used by Freepers to read the latest opinions almost as soon as they were released.

DeLay needs to shut up on personal attacks on specific justices. He is not in the Senate and his rantings have helped cause the Senate to have a harder time with using the Constitutional option just like Freepers said it would. The same Freepers that praise DeLay go after the Senators for not already doing the Constitutional Option when some of them along with Hannity and others make it much more difficult.

I am beginning to think that either some Freepers don't have a clue about how the judiciary works or are intentionally helping push DeLay and his rantings for other reasons. He is over the top in his attacks and a shame that people cannot see it and encourage him to stop instead of keep encouraging him to open his mouth.

Don't bother to flame me -- not going to change my mind and it is wasting your time. Before this I looked the other way on DeLay, but he has gone too far this time.

[Graymatter]

CK is a brilliant man and ordinarily Graymatter does not criticize gold matter, but here I must. It appears there is much he doesn't know about Judge Greer and the Schiavo case, if he thinks there was no impropriety. And to criticize DeLay for being unspecific ("judges will be accountable"), and then to employ indirection himself, is out of bounds. I refer to words like "delirious," "derangement," "sanity," and "sane," as if DeLay and those who agree with him are outside the category of sane. If he cannot state outright, "I think Tom DeLay is deranged," he shouldn't imply it half a dozen ways.

Worst of all, if he truly thinks that judicial power has been "grossly abused," why does he claim that DeLay's outrage is excessive? Why offer no better remedy than this very laborious (and far from foolproof) course: "appoint a new generation of judges committed to judicial modesty?"

Given the rate at which judges are destroying the republic, I consider it deranged to believe we have a generation of time to waste. But there are better choices of words---at least, when you're right there are.

[Just mythoughts]

Flame you????

Delay is the peoples representative and HE has the MOST constitutional authority of anybody to call the over powerful and out of control judiciary back into balance.

Now I am fully aware that the moderate nobles, who are most concerned with their own country club reputation, be protected from an outspoken hayseed hick Christian that just embarrasses them to no end!!!!!

[billphx]

I personally had to wonder about that internet research remark, myself. I thought that degraded his argument.

[AmishDude]

I disagree. The number of judges is huge. At least one of them is a disgraceful bum. I think at least judge should be impeached every year.

[vbmoneyspender]

Our federal judges have been impinging on the power of the legislature for years. The Schiavo case was a direct example of that and Krauthammer is simply incorrect with respect to his discussion of that case. Delay is furious and rightly so that the federal judiciary refused to review the Schiavo matter on de novo basis. Instead, the federal trial judge held a hearing on the injunction issue on one day's notice (which is a due process violation right there) and then had that ridiculous ruling upheld on appeal. That process directly violated both the letter and the spirt of the law that Congress passed and I don't blame people for throwing up their hands in disgust at the result.

The problem with federal judges is that they are appointed for life. Appointing someone to a position for life necessarily breeds arrorgance. With federal judges it is called the God disease. And it is no accident that many judges have gotten to the point that they think they are accountable to no one. Krauthammer has completely ignored this issue. But it is at the heart of the problem with the judiciary.

Simply put, the judiciary is the most dangerous branch of the gov't. This is so because once you get judges in power who believe they can simply decree things whether or not they are found in the law, then horrible results start to occur. Never forget that it was the Supreme Court that brought on the Civil War with its Dred Scott decision. And it was the Supreme Court that guaranteed Jim Crow would continue to exist for decades with the Plessy v. Ferguson decision. And it was the Supreme Court in the Korematsu decision that had the final word on putting thousands of American citizens in detention And finally, it was the Supreme Court that completely bypassed the leglislative process and the Constitution when it handed down Roe v. Wade.

So when Krauthammer says that the solution to the broken judiciary is to appoint good judges, he is wrong. Activism on the federal bench will continue (be it left-wing activism or right-wing activism) as long as judges are appointed for life.

[lugsoul]

"Delay is the peoples representative"

Only if you live in Sugarland, Texas. And not even then for some people.

I find it strange how many try to elevate the importance of being elected from a defined district over the other means of obtaining office in the Constitutional system. After all, my "peoples representative" is Cynthia McKinney, and I don't feel that her election confers any validity whatsoever on the spew that comes out of her mouth.

[lugsoul]

"Never forget that it was the Supreme Court that brought on the Civil War with its Dred Scott decision. And it was the Supreme Court that guaranteed Jim Crow would continue to exist for decades with the Plessy v. Ferguson decision. And it was the Supreme Court in the Korematsu decision that had the final word on putting thousands of American citizens in detention"

That's interesting - each of your examples involves a situation where the SC failed to stop the actions of other branches or subdivisions of government. Sounds like an arguement in favor of judicial activism.

[vbmoneyspender]

I think you are being too hard on Delay with respect to the research issue. If what Delay is talking about is research relating to factual issues, then he is correct. Judges are not supposed to be doing that, particularly appellate judges like Justice Kennedy. Appellate judges are supposed to rely on the factual records presented to them within the case and not go outside that record through their own research. And to the extent they do, they are acting improperly just a juror would be acting improperly if he or she were to do factual research on his or her own outside of the jury deliberation process.

[BibChr]

Good title.

Stupid, wrongheaded essay.

Dan
Biblical Christianity BLOG

[bvw]

I agree. Judge Kennedy is issueing a Judicial Order today -- Delay is to be kept from eating or drinking until dead. And anyone who speaks anything but praise for our best-in-the-world Justice system should consider that example.

Hooray, Hooray for the Mighty and Greatest-ever US Justice System and its Judges Majectic Uber Alles! Hoorah! Hoorah!

[Just mythoughts]

As Majority Leader Tom Delay represents more than just Sugarland, Texas.

I find it interesting just how weak knee so many claiming to be conservative really are. The middle, neither hot nor cold, numbers sure increase their volume and pitch when they feel their own reputations are in the limelight, and explain how we got in this mess we are in.

For tooo long the moderate nobles have turned their backs on taking a stand for what is RIGHT and leaned over to the left side just to go along to get along.

Mind and spines of scorpion bait!!!!