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A C o n s e r v a t i v e R e s o u r c e W e b s i t e |
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Speech (Scroll down to read speech) |
"As Justice
Scalia has warned many times, the problem is not that the four conservative
thinking judges on the Supreme Court do not see the
Constitution as a so-called "living document" as the liberal thinking
judges claim; the problem is the determined
inability of liberal minded judges to reason with logistical parameters,
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Stop Judicial Activism Now |
"Egret on Piling" Photo: Palmer Hasty 1999 |
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Also read our new page entry in Part 2: "Damage Control"
21st Century
Damage Control
will be a periodical site entry
during 2008 wherein we examine how we believe the
conservative intellect, applied to the courts, social
policy and political thought, foreign policy and media perspectives, will play the key role
in maintaining the original strengths that stand as the foundation for
our way of life in America. |
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Stop Judicial Activism Now Good evening. I would like to thank Marcia Cook for introducing me to Ellie Kramer at one of the Pinellas County Republican Executive Committee meetings earlier this year. And I would like to thank Ellie, who is Vice President of the Greater Republican Club of Seminole, for inviting me to speak to you tonight. It’s an honor to be here And I’m pleased to see that State Representative Leslie Waters is here…and I was also pleased to find out that we agree on a lot of this stuff. When Ellie and I discussed this talk, she reminded me that I would be speaking to conservative Republicans... So I reassured her that I would not say anything politically incorrect about liberal Democrats... I mean… I would never say anything sarcastic or derogatory about an endangered species. And if you watched the Senate Judiciary Committee hearings for Supreme Court nominee John Roberts... You would have seen a version of the liberal Democrats Endangered Species Reality TV show.
If you are wondering who I am… I am a writer, and at this point a sometimes free-lance journalist. I have worked in journalism many years and right now write media and political analysis, and communications from the conservative perspective. I wrote some campaign strategy for Governor Jeb Bush during the historic 2002 gubernatorial election in Florida. After the Supreme Court’s Florida re-count decision in 2000, and the liberal Democrats subsequent use of the filibuster to keep the President’s conservative court nominees from even getting an up or down vote in the Senate … I became interested in what I understand the Constitution and the Federalist Papers clearly warned against, that is, the politicization of the courts … especially the Supreme Court. I'm going to talk to you tonight about some of the problems we conservatives have with what’s called judicial activism in the courts. And in some cases reaching a point that I think would justify calling judicial tyranny. And if I have time I will highlight several renegade judges who have blatantly exercised this form of activism in the recent past. Judicial activism is when liberal thinking judges create laws and rights that the text of the Constitution did not intend to provide…laws and rights based on their personal and political preferences. Since socio-political thinking reflects the way elected legislators think about creating policy… Liberal lawmakers of the modern era have become politically dependent on maintaining activist judges on the Supreme Court. And I believe it is clear now…dependent to the point of trying to make it an established precedent. And in the process creating the potential for a dangerous imbalance between the three branches of government. Whenever one speaks about the current battle over constitutional interpretations … it is wise to keep in mind what the former Supreme Court Justice Oliver Wendell Holmes said about interpreting the Constitution. The former justice said… “All I want to know is what the words mean.” For example: At the recent Senate hearings on judge John Roberts, as Human Events Editor Terence Jeffrey pointed out in a commentary… When Senator Joseph Biden tried to pressure Roberts into stating positions that would commit the judge to how he would rule on certain cases … claiming that the nominee somehow owed this preview of opinion to the American people … like a candidate running for elective office would be expected to reveal how they would vote on legislation… Judge Roberts wisely replied that; “Judges decide cases according to the judicial process…not on the basis of promises made earlier to get elected…or promises made earlier to get confirmed.” A long time ago Justice Holmes also delineated the fine-line where judicial decision-making is…or should be… separated from legislative thinking. As Hoover Institute scholar Dr. Thomas Sowell pointed out in a study of judicial activism: Justice Holmes said that the cognitive meaning of laws as instructions…should take precedent over the psychological or philosophical values of the writers of the laws. Dissecting any one of several contemporary Supreme Court decisions, as well as decisions by renegade judges in the lower courts, will give you a clear example of how judicial activism works. Before I give specific examples though, I will point out that judicial activism accelerated in modern times with the realization for liberals that during the 1990s a conservative sea change was building across the political and communications spectrum. And liberal legislators caught on, one might say, and developed a more conscious, symbiotic relationship with the liberal media establishment. Roper V. Simmons A good example of judicial activism is the recent Roper V. Simmons decision by the Supreme Court that took effect in March of 2005. In Roper the High Court ruled that administering the death penalty for anyone who committed 1st degree murder before the arbitrarily selected age of 18 is unconstitutional. As Supreme Court Justice Antonin Scalia pointed out in a scathing dissent… the logic that informed the decision was riddled with inconsistencies and inconclusiveness, because…as Justice Holmes had warned…it was the psychological and philosophical values of the writers of that law that took precedent over the cognitive meaning of the law. While I discuss this case for a moment I think it is important and appropriate to keep in mind the actual crime committed. In 1993, seventeen-year old Christopher Simmons broke into Shirley Cook’s home, kidnapped her and threw her bound and gagged, and still alive, off a bridge and into a river. The liberal majority opinion of the court also over-ruled an existing 1989 law that allowed each state to decide for itself the issue of the death penalty. For its rationale, the majority agreed that the death penalty for people under the age of 18 would be, quote … "cruel and unusual punishment.” The logic that informed this misapplication of the “cruel and unusual punishment” phrase in the text of the Constitution, was just as questionable as the final opinion. A reasoning based on two parallel, and both of them, nebulous lines of logic. That “cruel and unusual” should include the death penalty, without feeling bound to the cognitive meaning of the text, the reason then became; As compared to some other countries our death penalty violated an “evolving standard of decency”… as well as… and apparently for backup logic, non scientific studies indicating…as if everyone in the universe didn’t know that…sometimes young people are “often” emotionally unstable. In that case the majority wrote; “The overwhelming weight of international opinion against the death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.” In the dissent Justice Scalia rightly criticized the reasoning of the majority; “The court thus proclaims itself the sole arbiter of our nation’s standards, and purports to take guidance from views of foreign courts and legislatures.” Just two weeks ago, following the John Roberts hearings, the Wall Street Journal sarcastically called that kind of thinking, “judicial tourism.” Personally I thought the Roper decision was confused, irresponsible, and even immoral to a degree. Scalia was concerned with what Judge Roberts called the “judicial process” in deciding cases. Questions regarding the death penalty for the taking of life in a civilized society involve profound questions of justice and morality… And when you place a disproportionate weight of moral value against the punishment…after the fact…then you turn the proven killer…no matter what age…or by virtue of the age…into the victim. And then you have, inadvertently or not, decided that the same “evolving standard of decency” is impossible to achieve…or that it is off-limits (in this case for juveniles under 18 years of age)… from the other side of the murder, so to speak, that is, before the murder happened. And then to use laws of foreign courts and questionable data to justify the rationale … you would obviously raise the suspicion that the judicial process was not as thoroughly contemplated as the issue warranted. Roe v. Wade It is impossible today to talk about issues of judicial activism without talking about the super precedents. And in the political arena, precedents that are called hot button issues. The evolution of identifying and defining what are and are not justifiable interpretations of the Constitution went into over-drive after the 1973 Supreme Court ruling in Roe V. Wade ... and for good reason. A Supreme Court ruling that claims under the “right to privacy” a woman cannot be denied an abortion. For reasons of self-promotion I am going to read to you from the Political Stand page of my website ... LightBookproductions.com. Because I believe, generally speaking, it represents the right perspective. It is a proactive, pro-life view, and it is a view that, pardon the pun, scares the liberals to death. On my website I put it this way. "Indiscriminate choice without boundaries mistakenly elevated via liberal politics, as it moved through the downward maze of contemporary political thought, should not interfere with or preclude individual laws that are based on the sanity and morality of a view that holds the sanctity of life in its proper, indelible place in the soul of the human mind." In other words…I believe Roe v Wade should be realigned. Abortion laws should obviously be based on issues other than privacy. I believe the politically motivated view that says the elevation of that which respects life is a downgrading of “the right to privacy” is more exploitative than it is responsible. If you study what the people believe about individual issues related to abortion, like the ban on partial birth abortion, the Laci Peterson Law, the Mexico City Law, and the parental notification issue that will come before the Supreme Court later this year… you will see that Roe v. Wade was at best, a gross and insensitive misunderstanding of the issue prematurely forced on the nation. Liberal judges trying to re-interpret a text in the constitution wherein their social vision could be intellectually justified. Judicial Tyranny Another form of judicial activism that I believe warrants being called judicial tyranny, represents an even more blatant and politically desperate attempt by judges trying to set precedents in the name of dubious social change. We conservatives like to call these people renegade judges. I think it was after the 2000 election when the gay community and their liberal sympathizers in the legislature under pressure from special interest groups realized President Bush would nominate conservative judges. As well as national polls revealing that the majority of the people were prepared to amend their state constitutions in order to protect the institution of marriage. As a precaution … during the 2004 election cycles…over 25% of the states voted to amend their constitutions to protect the institution of marriage against the homosexual activists and their sympathizers scattered along the bench.. One example of this kind of judicial tyranny would be the high profile case of Goodrich v The Department of Health in Massachusetts. What happened was… The Massachusetts Supreme Court ruled…and apparently out of nowhere…that the state could not deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wished to marry. The fact that homosexuals wanted to get married and be treated like normal heterosexual couples… And not in the opinion of the people but in the opinion of only a few state judges … suddenly required a new interpretation of a state constitution that was in fact older than the U.S. Constitution and nowhere referenced same sex marriage. To make matters worse … the court “ordered” the Massachusetts legislature to draft laws legalizing same sex marriage…and to do it in 180 days. As the Heritage Foundation pointed out in their Town Hall talking points … "to claim that this ruling presented the original intent of the Massachusetts Constitution was ridiculous." Correctly calling it an astounding breach of the court’s authority … Judges simply do not have the right to demand of the legislature to draft laws that conform to their social activism. This was one of Justice Scalia’s main points regarding the Roper case … the logic that justified the court’s decision has no real parameters or conclusions. The same reasoning behind the Massachusetts ruling could therefore include equal marriage rights for polygamists, and even children, all of whom could then be viewed as requiring legal status regarding marriage. As the Town Hall talking points concluded, "It is wrong to deny legislators and the people the democratic processes needed to resolve these critical issues." Another example of judicial tyranny occurred earlier this year in Nebraska. Nebraska has a constitutional amendment voted on by an overwhelming majority of its people that ban’s same-sex marriage in that state…a renegade judge named Battallion is already trying to over-rule the amendment…his argument being that it violates the First Amendment. As Phyllis Schlafly of The Eagle Forum said, his argument that the people’s amendment “chills or inhibits advocacy of same sex marriage is an embarrassment.” She is right. The argument is absurd. As Schlafly said, gays can still advocate all they want; what they can’t do and what the renegade judge in his juvenile stupidity cannot do is force the government, or the people of Nebraska, to recognize sexually deviant relationships, or accord them special privileges. The evolutionary impact of judicial activism could be seen at work in the recent Senate Judiciary Committee hearings for Judge Roberts. The liberal Democrats who have been filibustering the President’s judicial nominees since the 2000 election were meticulously at work… Revealing in their line of questions their desire to politically stack the court. Yet, realigned to the Constitution and without recourse to a filibuster to hide behind, their motives were transparent. So how do we stop judicial activism? At the local level, in Florida there are two ballot initiatives in the works. The Florida4Marriage Amendment would ban same-sex marriage, and I would encourage you as a protective measure against the potential of either a renegade court or legislature ... now that probably Florida’s most powerful and intelligent governor will leave office next year ... To go to the Florida4Marriage website, print a copy of the petition, sign it, and send it in. Also, State Representative and former Pinellas County Sheriff Everette Rice has written a proposed amendment to the Florida Constitution that would protect Floridians from the recent Supreme Court ruling in Kelo V. City of New London. Kelo v. New London created a new category of rights that would allow eminent domain to be abused for private economic interests. Kelo V. The City of New London is also a classic example of judicial activism, and I would encourage you to support that amendment initiative. Representative Waters informed me before this talk that she is co-sponsoring that amendment. Closing President Bush has a very unique and important opportunity to nominate two and possibly three justices to the Supreme Court before his term is out. The President is in a historic position to stop this destructive trend of judicial activism for a very long time. As we move into the 21st century and are forced to adapt to the super rapid changes in how we communicate; how we perceive our collective image and sovereignty as a nation, instantaneously interactive with other nations on the global stage … I believe it is imperative that we stay close to our Constitution’s meaning … Without allowing socio-political changes… Just because a minority of people might happen to be doing whatever it is … To lure and pressure us into thinking those changes in themselves constitute “progress.” And to the extent that we would allow the court to prematurely rule based on far-fetched ideas of progress outside the democratic process. I believe one very important way to do this is to stand up and fight against the political stacking of the courts by simply getting rid of the filibuster once and for all as an option for the minority party in the judicial nominating process. And by nominating strict constitutionalist judges, like John Roberts, to the courts ... especially when we have the majority to get it done. The liberal Democrats in the Senate who are chained to the worn out communication treadmills of special interest groups and the mainstream liberal media, are going to make a lot of noise… But as Pat Buchanan recently said… “So what?” ... “Let them howl.” And by so doing… We return, or I should say, realign the Senate to the Constitution of the United States… And reaffirm the balance of power between the three branches of government. Thank you. Are there any questions?
This speech was written
"Stop Judicial Activism Now"
Some resource links for conservative perspectives on constitutional and judicial issues. The Eagle Forum & Eagle Forum Court Watch
2007 READING ON JUDICIAL ISSUES 1. "The Truth About Clarence Thomas"... Judicial Confirmation Network says that against a backdrop of "vitriolic personal attacks and persistent stereotypes about his views...Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years." Judicial Confirmation Network
2. "The Heritage Guide to The Constitution" Edwin Meese III: Chairman of the Editorial Advisory Board. Published by Regnery Publishing, Inc. Copyright 2005. The Heritage Foundation. For anyone interested in the meaning of the original Constitution we suggest reading and owning this excellent reference book.
3. "The
Politically Incorrect Guide to the Constitution"
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Judicial Issues
During his two terms, President Bush
is in an unprecedented historical position to stop the destructive trend of judicial activism at
the highest level for a very long time. (2005)
Points for
Thought Understanding the judicial process: "The cognitive meaning of laws as instructions…should take precedent over the psychological or philosophical values of the writers of the laws." Former Supreme Court
Justice
Misapplication of Precedent:
"Liberal lawmakers of
the modern era have become politically dependent on maintaining activist
judges as adjunct legislators on the Circuit and Supreme Courts. And
I believe it is clear now, dependent to the point of trying to make it an
established precedent ... And in the process
creating the potential for a dangerous imbalance between the three branches
of government."
Confirmation Hearing: “Judges decide cases according to the judicial process…not on the basis of promises made earlier to get elected … or promises made earlier to get confirmed." Chief Justice of the
Supreme Court
Swearing in to the Circuit Court (2006): "I'll work to maintain absolute independence of the judiciary, which, in my judgment, is the crown jewel of our democracy." Circuit Judge
Judicial activism: "Judges simply do not have the right to demand the legislature to draft laws that conform to their social activism." The Heritage Foundation
Quotas, diversity and discrimination: "I don't believe in quotas. America was founded on the philosophy of individual rights, not group rights." "Government cannot make us equal, it can only recognize, respect, and protect us as equal before the law." Supreme Court Justice
Dissent: Roper V Simmons: “The court thus proclaims itself the sole arbiter of our nation’s standards, and purports to take guidance from views of foreign courts and legislatures.” Supreme Court Justice
Roe v Wade was a mistake: "I believe Roe v Wade should be realigned. Primary abortion laws should obviously be based on issues other than privacy.
I believe the
politically motivated view that says the elevation of that which respects
life is a downgrading of “the right to privacy” is more exploitative and
contemporaneously shallow than it
is responsible."
Example of judicial tyranny (2005): A form of judicial activism that I believe warrants being called judicial tyranny, represents an even more blatant and politically desperate attempt by judges trying to set precedent in the name of dubious social change. We conservatives like to call these people renegade judges. Nebraska has a constitutional amendment voted on by an overwhelming majority of its people that bans same-sex marriage in that state. A renegade judge named Battallion is already trying to over-rule the amendment…his argument being that it violates the First Amendment. As Phyllis Schlafly of The Eagle Forum said, his argument that the people’s amendment “chills or inhibits advocacy of same sex marriage is an embarrassment.” She is right. The argument is absurd. As Mrs. Schlafly said, gays can still advocate all they want. What they can not do and what the renegade judge in his juvenile reasoning cannot do is force the government or the people of Nebraska to recognize sexually deviant relationships or accord them special privileges.
A foundation of reason: "As we move into the 21st century and are forced to adapt to the super rapid changes in how we communicate; how we perceive our collective image and sovereignty as a nation; instantaneously interactive with other nations on the global stage: I believe it is imperative that we stay close to our Constitution’s intent…without allowing socio-political changes…just because a minority of people might happen to be doing whatever it is…to lure and pressure us via the media, into thinking those changes in themselves constitute progress... Or to lure and pressure us to the extent that we would allow the court to prematurely rule based on far-fetched ideas of progress outside the equally important parameters of judicial reason and the democratic process."
Palmer Hasty
Dissent: Rov v. Wade: "Nor is the "privacy" that the court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the court has referred to as embodying a right to privacy."
Former
Chief Justice
Analytical Constitutional Inquiry: When asked by Senate Judiciary Committee member Senator Charles Grassley of Iowa during Justice Samuel Alito's confirmation hearings, whether he (Alito) agreed with the notion that judges are free to create a constitution that they think best fits today's changing society... Alito replied, "If the courts do the job they are supposed to do, we will produce a more just society. The judiciary has to restrain itself and engage in a constant process of asking: Is this something we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?"
Supreme Court Justice
The "Living" Constitution: "As Justice
Scalia has warned many times, the problem is not that the conservative
thinking "Constitutionalists" or "constructionist" judges on the Supreme Court do not see the
Constitution as a so-called "living" document; the problem is the determined
inability of liberal minded judges to reason with logistical parameters,
which is precisely what will in time render the Constitution lifeless."
Palmer Hasty
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