Replies

I'd rather start with Rasul v. Bush - it made a believer of me about the federal judiciary. They are thoroughly rotten - it doesn't matter what the law or Constitution say because they ignore inconvenient language to reach the result they want. That is rule by men, not by law.

So amending the Constitution or denying the Court jurisdiction won't stop them from doing whatever they want. Only a change of personnel will, and at this point I'd like to dump life appointments too.

FYI, the part of Rasul to look at is that the federal courts assumed jurisdiction at all, compared to the ruling in Hamdi v. Rumsfeld. Both sought a statutory writ of habeas corpus (not the constitutional writ as no constitutional violation was alleged), and the habeas statute requires that relief be sought from the U.S. District Court having jurisdiction over where the prisoner was held.

Neither Hamdi nor Rasul complied with that part of the habeas statute. The Supreme Court ruled that Hamdi (a U.S. citizen because he was born here) must first seek relief from the District Court where his prison was located. But Rasul was held at Guantamano, which is outside the area where any District Court has jurisdiction. That's why he was being held at Gitmo.

And the Supreme Court ruled for Rasul, i.e., they gave him - an alien enemy combatant - broader habeas rights than a U.S. citizen. They didn't even try to explain that - they just ignored the contradiction.

IMO Rasul v. Bush is the worst decision since Dred Scott for lots of reasons, but the critical point is that it shows the present Supreme Court will ignore the wording and meaning of the law whenever it suits them.

And they are ignoring the constitution's separation of powers - they're grabbing at the President's use of war powers overseas against enemy combatants. See:

http://news.findlaw.com/hdocs/docs/tribunals/hamdanrums110804opn.pdf

which just came down today. The lefties on the federal bench are trying to turn war into a criminal justice matter.

We have got to get those people out of there. And redo the whole judiciary. At this point I don't think any new judicial appointees should have prior federal judicial experience.

You guys want your social stuff. I want to win the war. Neither of us has a chance given the present Supreme Court, and the federal bench is now a threat to both of us. They'll ignore any law or Constitutional amendment about marriage they don't like just as they ignored the plain wording of the habeas statute's jurisdiction provision.

So I'd like to have federal judicial appointments be for fixed, limited terms rather than life. And have retention elections for the Supreme Court. They act as though they are sovereign because their appointments are for life. Whatever they say goes, goes, because they claim to be the final arbiters of the law and Constitution, and can rely on Democratic Senators to avoid impeachment.

Only the people are sovereign, not the Supreme Court, and we should be able to dump them when they get out of line like this.

It is time for state legislatures to petition Congress to convene a convention to propose Constitutional amendments. Starting with eight year terms for federal judicial appointments and some sort of retention election for the Supreme Court.

Check out Andrew McCarthy's column in today's National Review On-Line. He describes the same issue from a different perspective.

http://www.nationalreview.com/mccarthy/mccarthy200411100848.asp

"... There are, essentially, two competing visions of judicial philosophy. The first, the one that is regnant at this time (and to which it appears Senator Specter subscribes), is that the Constitution — with its many pliable terms — is as manipulable as necessary to place beyond democracy any issue that may be said to reflect a "value" the American people revere at a given time. The problem here is that this camouflages a brute power reality.
In truth, the American people have very few values which enjoy such broad consensus that, given the choice, our society would enshrine them in our Constitution and render them immune from further popular consideration, regardless of evolving attitudes or changed circumstances. Constitutional protection, we must admit, is a forbidding carapace — one need look no further than the contortions engaged in by would-be reformers when values incontestably engraved in the Constitution, like free speech and bearing arms, collide with innovative schemes like campaign finance and gun control.
It is a commonplace for judicial opinions to couch various concerns in extravagant rhetoric about values claimed to be venerated by all Americans. Yet, at bottom, this reflects nothing more or less than the subjective preferences of a majority (often a bare, fractious majority) of judges — whose views about social issues, even if they masquerade as legal issues, should be of no greater moment than what the people of, say, Bayonne or Des Moines think about abortion, or gay marriage, or stem-cell research.
The second school of thought holds merely this: that judges are not supreme. It contends that there are firm, objective limits to the areas of life that jurists may remove from the democratic self-determination of the American people. They are found in the text of the Constitution as it was originally understood at the time its provisions were adopted. They do not change over time or with passing fancies. This philosophy is erected on an unchanging premise: In a democracy, it is to be presumed that great social conflicts will be resolved democratically. That presumption is not beyond rebuttal, but for it to be overcome there must be unmistakable proof that the dispute at issue was removed from democratic consideration by the Constitution."

My point is that the same judicial philosophy which brought us Roe v. Wade is now causing the judiciary to attack the Constitutional separation of powers concerning the President's war powers. It brought us Rasul v. Bush and now this Hamdan v. Rumsfeld ruling.

Judicial activists are merging the war against terror with the struggle against abortion. I am saying that these guys are forcing an alliance between social conservatives and war hawks who used to be Democrats who do not agree with social conservatives on social issues (me, Governor Shwarzenegger, the "Scoop Jackson" Democrats, etc.)

You social conservatives have an opportunity if you have the wit to grasp it.