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Unrestrained Judicial Activism Will Destroy Our Way Of Life
The Bulletin ^ | September 8, 2008 | Herb Denenberg

Posted on 09/08/2008 9:29:53 AM PDT by jazusamo

One of the most important but most overlooked issues in the political campaign involves the kind of judges the next president will appoint. Those appointments, and this is no exaggeration, may well determine whether our free society survives and flourishes. The kind of judges the next president of the United States appoints will determine whether or not:

1. The U.S. Constitution survives as intended by the Founders.

2. Leftist judges turn all of their radical ideas into law without the consent of the governed and the normal law-making process. They will do that by legislating from the bench, that is, by issuing judicial rulings that reflect not the law but the judges' own agenda.

3. Our national security system is able to win the war against Islamo-fascist terrorism. If the court cripples our intelligence efforts and gives battlefield combatants all kinds of new rights, we may be on a course to lose the war against Islam-fascist terrorism.

4. Our American family values survive. The judicial rulings on gay rights and other subjects may transform the institution of marriage and other institutions into something that is unrecognizable.

5. Our tradition of rule of law survives or is replaced by rule of judges. When judges make decisions based on their own perspective rather than the intent of the Founders and legislators you have a form of judicial chaos that makes the law unpredictable, unstable, and dangerous.

6. Our American civilization as we know it survives, and whether it continues to produce the greatest nation in the history of the world.

This all turns on whether future judges will be the so-called judicial activists or strict constructionists. The choice between those two judicial schools of thought will determine our fundamental direction. Here are how those two approaches are defined:

* Strict constructionists believe the U.S. Constitution should be interpreted in light of the intent of the founders, and our laws should be interpreted in the light of the legislative intent.

* Judicial activists interpret the U.S. Constitution and the laws passed there under in the light of their own moral and political agenda. They, in effect, interpret the Constitution and laws from the perspective of their own moral and political agendas. The activists hide their real machinations with such euphemisms as interpreting the Constitution as a "living document," "expanding rights," and "protecting the powerless." But when all the fancy phrases are scraped away, what's left is that the judicial activists put their own opinions and wrap them up as judicial decisions.

Sen. John McCain believes in appointing strict constructionists, who will rule in accordance with the intent of the Founders and legislators and not legislate from the bench. So he would appoint justices such as Sam Alito, Clarence Thomas, John Roberts, and Antonin Scalia.

Sen. Barack Obama favors the judicial activists, who manufacturer the law as they go along based on their own agenda, not that of the Founders and the lawmakers.

Sen. Obama would appoint the likes of Stephen Breyer, Ruth Bader Ginsburg and David Souter. These judges somehow discover the law through the lens of their own agenda and left-wing agendas

There is now an almost equal balance between the judicial activists and the strict constructionist on the U.S. Supreme Court. As the next president is almost certain to appoint two to three justices to the U.S. Supreme Court, he may swing the balance one way or another. Of course, the next president will also be appointing judges to the rest of the federal judiciary and those appointment could swing the balance of those courts far into one direction or another.

One of the best discussions of this issue I've ever seen appears in Townhall Magazine (August 2008), authored by Curt Levey, executive director of the Committee for Justice, which promotes the rule of law and judicial nominees dedicated to protecting it. His article is entitled "Holding the Line: Scalia-style strict constructionists are standing in the way of a 'living Constitution.'"

Mr. Levey cites three recent classic examples of ruling by judicial activist courts:

1. The June 2008 U.S. Supreme Court decision (Boumediene v. Bush) that "discovered" a constitutional right to federal court access for Guantanamo's enemy combatants.

2. At the same time, the Supreme Court discovered a constitutional prohibition of executing child rapists.

3. One month earlier, the California Supreme Court "discovered" a right to gay marriage in the state's constitution.

The destructive effects of judicial activism is most obvious now, but Stuart Taylor, a Supreme Court observer, says it has been with us and has been growing since the 1950s.

Lawyers understand this trend, but so does the public and it doesn't like it. Mr. Levey cites a Rasmussen opinion poll that found 60 percent of Americans think Supreme Court justices have their own political agenda but only 23 percent believe the court describes cases impartially. In 2005 an American Bar Association survey found by a two-to-one margin that Americans agree that judicial activism "seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality."

Mr. Levey offers a useful definition of judicial activism: Judicial activism "is marked by the elevation of a judge's policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the commonsense meaning or original intent of the constitutional or statutory text at issue."

One of the foremost proponents of judicial activism is Sen. Obama who favors judicial decisions based on the "feelings" of judges rather than on objective interpretation of the law. Here is Sen. Obama's description of the proper judicial philosophy: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what 'it's like to be poor, or African-American, or gay, or disabled or old. And that's the criteria by which I'm going to be selecting judges."

The trouble with the "empathy" test is that it is a license for the judge to rule anyway he feels like ruling. Mr. Levey poses these questions for a judge who is taking the empathy" approach to jurisprudence: "Does understanding what's it's like to be African-American instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor, white job applicant who lost a job to the affluent beneficiary of minority preferences?"

The empathy standard as formulated by Sen. Obama is ridiculous on its face. Shouldn't a judge have empathy for all, not just the classes designated by Sen. Obama? Shouldn't a judge have empathy for everyone, not just Sen. Obama's designated classes? Where does it end? And what does it mean? It is a test that can't be applied and doesn't make sense.

And Sen. Obama's other yearning for judges who will "bring in his or her own perspectives, his ethics, his or her moral bearings." What does that=2 0mean and how would it be applied? Would it mean that every judge would come up with a different decision based on their perspectives, ethics, and moral bearings? The Obama tests make no sense, but would certainly provide a license to reach any decision based on the whims and whimsies of every judge. The Obama test means we would no longer be under a rule of law, but a rule individual perspectives, ethics, and moral bearings. Anything would go under that kind of legal system.

Judicial activism takes many forms. Mr. Levey writes it can be used to construe black as white, to twist doctrines beyond recognition, and to invent new rights. It may ignore old rights, and play policymaker. Here's an example of inventing new rights from the Ninth Circuit, the nation's most liberal federal court. That court decided it was unconstitutional for NASA to require its contract employees to be subjected to background investigations. The Ninth Circuit decided those background checks were unconstitutional as they collided with the "constitutional right to informational privacy," a right created and discovered by the Ninth Circuit, but unfortunately not found in the Constitution.

When you start pulling rights and decisions out of nowhere, you endanger the rule of law, the political process and every American, according to Levey. He gives many examples of why the judicial activist is so dangerous.

Judicial activism is a fancy formula for unrestrained power in the courts. If judges are not bound by the U.S. Constitution and the laws of the land, they have unrestrained power. We no longer have a constitution and laws, but have only what judges out of their own empathy or perspectives think the law ought to be.

Judicial activism is totally undemocratic. It takes power away from the people and their legislatures, and gives power of judges to ignore the results of our political processes. When liberals and progressives can't get their ideas adopted in the legislature, they turn to the courts to legislate those ideas from the bench.

Judicial activism is elitist. It imposes elitists' values on the American people contrary to the values of the American people. When the Tennessee Supreme Court vacated a death sentence, the court ruled, "the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment." In other words, what rules is not what the people of Tennessee think about the death penalty and enact through their legislature, but what some elitists judges think they ought to think. That one sentence is one of the great summaries of where judicial activism and its elitist judges take us.

Mr. Levey catalogs all kinds of victims of judicial activism. For example, thousands of college athletes lost their scholarships and their dreams because the First Circuit ruled that there must be gender quotas for varsity athletes. That meant that females must have the same number of athletic scholarships as males. So many schools eliminated the teams rather than submit to the quotas. More than 50 male athletes have eliminated, on average, at each NCAA school. This decision was made despite explicit statutory language that there should be no such quotas. But, as we've seen, the judicial activists can construe black as white, based on empathy, the judge's own moral values, or some other excuse to ignore the law and its clear intent. Judicial activism means the judge does anything he wants, and the Constitution and the laws be damned.

So it's no exaggeration to say that our way of life is at stake in this election. Are we to be ruled by a constitution and laws or by the unrestrained pronouncements of unelected judges? The next president will not only appoint two or three justices of the U.S. Supreme Court as well as more than one-third of other federal judges. Do you want to vote for the candidate that believes judges should go by the intent of the Founders and of our legislators? Or do you want to vote for the candidate that will appoint judges guided by their "empathy" and thus be able to rule America from the bench, and essentially subordinate the legislative and executive branch? Do you want the rule of law or the rule of left-wing judges? Do you want judicial dictators or judges who interpret the Constitution and laws? If you want to preserve our U.S. Constitution and the laws of the land, you should vote for the candidate that believes in strict constructionism, and not judicial activism. Based on their record and their pronouncements on the appointment of judges, there is only one choice and that's John McCain.

Herb Denenberg is a former Pennsylvania Insurance Commissioner, Pennsylvania Public Utility Commissioner, and professor at the Wharton School. He is a longtime Philadelphia journalist and consumer advocate. He is also a member of the Institute of Medicine of the National Academy of the Sciences. His column appears daily in The Bulletin. You can reach him at

TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections
KEYWORDS: 2008; 2008election; denenberg; electionpresident; elections; judges; judicialactivism; judiciary; mccain; nobama08; obama; scotus

1 posted on 09/08/2008 9:29:53 AM PDT by jazusamo
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To: jazusamo
Unrestrained Judicial Activism Will Destroy Our Way Of Life

You better believe it!!

2 posted on 09/08/2008 9:32:14 AM PDT by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: Puppage

The Warren Court started all this. We have no recourse against these people. They think a seat on the federal bench makes them monarchs.

3 posted on 09/08/2008 10:04:59 AM PDT by Luke21
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To: Luke21
We have no recourse against these people

Keep your powder dry, my friend.

4 posted on 09/08/2008 10:13:26 AM PDT by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: jazusamo
Unrestrained Judicial Activism Will Destroy Our Way Of Life

That's the plan.

5 posted on 09/08/2008 10:17:55 AM PDT by facedown (Armed in the Heartland)
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To: Puppage
Obama, the candidate who claims to have been a constitutional law professor, suggested the following criteria for selecting judges: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," and "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Obama is advocating legislation from the bench based on emotion and empathy, not the Constitution. A constitutional law professor should better understand the role of the federal judiciary.

There is a particular constitutional law professor who would benefit from this informative introduction to the United States Federal Court System for Judges and Judicial Administrators in other countries.

Obama should have taught this...The federal judiciary is a totally separate, self-governing branch of the government. The federal courts often are called the guardians of the Constitution because their rulings protect the rights and liberties guaranteed by the Constitution. Through fair and impartial judgments, they determine facts and interpret the law to resolve legal disputes. The courts do not make the laws. That is the responsibility of the Congress. Nor do the courts have the power to enforce the laws. That is the role of the President and the many executive branch departments and agencies. However, the judicial branch has the authority to interpret and decide the constitutionality of federal laws and to resolve other disputes over federal laws.

Do you see any of Obama’s criteria in that description?

6 posted on 09/08/2008 10:25:07 AM PDT by MosesKnows (Love many, Trust few, and always paddle your own canoe)
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To: jazusamo

DUH!!! God only gave us TEN COMMANDMENTS. It was the scribes (read: lawyers) that created more requirements to hang over the people.

Jesus taught humility and love for one another.

7 posted on 09/08/2008 10:27:00 AM PDT by wizr ("Praise the Lord and pass the ammunition." - Chaplain Maguire, Pearl Harbor, 1941)
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To: Puppage

It’s ‘Gender Equity’ when it comes to allowing a business or a civic group to run it’s affairs. It’s ‘Income Inequality’ when it comes to the same businesses or civic groups being forced to pay for losers whom vote in more politicians whom select ‘equality’ activist judges. Our country works best with Liberty as a principle first and equality second. We are not a Democracy, we are a Republic.

8 posted on 09/08/2008 10:33:51 AM PDT by iThinkBig
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To: jazusamo

Even if McCain wins he will have to get his nominees through a liberal Democrat Senate. If Obama wins the liberal choices will sail right through.

We must elect McCain but that is not the end of the story.

9 posted on 09/08/2008 11:24:02 AM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government)
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To: Mind-numbed Robot

Well said...With a dem controlled Senate it will be very difficult for McCain to get any conservative judges confirmed but with Obama leftist judges are assured.

10 posted on 09/08/2008 11:33:51 AM PDT by jazusamo ( |
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To: jazusamo

Our courts long ago gave up the notion they are a third branch of government designed to check power grabs by the other two.

Since FDR, the Judiciary has been a cheerleader and enabler in the erosion of our God given rights. I hope I am wrong, but I doubt there will ever be a return to Constitutional sanity.

11 posted on 09/08/2008 1:44:28 PM PDT by Jacquerie (Truth to the Left is that which advances their goals. - Factuality is irrelevant.)
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To: Jacquerie

I hear you and far be it from me to say you’re wrong.

It will be very difficult to get two or three more conservative leaning justices even if McCain is elected. If that should happen I hope I’m around long enough to see the results after they’ve had time to render some decisions.

12 posted on 09/08/2008 2:21:06 PM PDT by jazusamo ( |
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To: jazusamo

Judges will be brought up by the Demonrats about Roe v. Wade and the Republicans really need to run on judges as well and turn it around and point out the bad judges Demonrats put in office and their threat to our security and Constitution and that judges are more than Roe v. Wade.

13 posted on 09/08/2008 2:35:37 PM PDT by bushfamfan (Palin is America's Thatcher, Obama is America's Chamberlain)
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To: Puppage


14 posted on 09/08/2008 2:38:12 PM PDT by Jane Austen (Boycott the Bahamas!)
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To: jazusamo

The Chairman of the Senate Judiciary Committee, Ultimate Arbiter of Activist (and otherwise) Judges: Smarmy Bloviating Joe Biden has already decimated two generations in bloody murderous sacrifice to his god of pluralism. If you just count the number of souls that he is responsible for, innumerable millions, he is worse than Hitler, Stalin, Mao, Castro and Pot combined.

15 posted on 09/08/2008 2:48:14 PM PDT by Theophilus (Abortion: 9/11 Every Single Day)
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