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What should be done depends on what you think the problem is. April 13, 2005 | 1:07 PM ET
So I've been pointing out that there's a lot of over-the-top talk about the federal judiciary. But what should more sensible people be talking about, instead of quoting Stalin and calling for the impeachment of Justice Kennedy, when that's never going to happen?
Well, what should be done depends on what you think the problem is. I'm going to outline some potential problems and solutions. I don't necessarily endorse these solutions, but they're all more serious than what we've heard from the Stalin-quoting crowd.
(1) Judicial activism in the Terri Schiavo case. Here, I think the complaint is just off-base. Congress passed a procedural statute, and was disappointed that it didn't get the substantive result that it wanted. (And if it had really wanted to keep Terri Schiavo alive, it could have passed a law authorizing President Bush to draft her; she'd still be in Walter Reed on a feeding tube now if they had done that, and given the extent of government conscription powers, no court could have interfered.)
But if Congress thinks that people are being deprived of their constitutional rights on a large scale by state laws that make it too easy to remove feeding tubes from vegetative patients, Congress has the authority to pass a general statute, applying to all such cases, under its authority to enforce the 14th Amendment -- though the threshold for such action, thanks to the recent (and not at all leftist) Supreme Court "states' rights" decision in U.S. v. Morrison, is fairly high. (One might also note that Justice Scalia, in the Cruzan case, said that this sort of question should be left to state courts: "the federal courts have no business in this field." This has led, as far as I know, to only one call to impeach Scalia, and it's not a serious one.) Still, if there's really a problem, Congress has the authority to set federal guidelines. Proof that the Schiavo case was mostly about posturing can be found in Congress' unwillingness to do so -- backers of the bill, in fact, stressed that it wouldn't create a precedent, and wouldn't apply in other cases.
(2) Arrogant life-tenured judges. Judicial arrogance is certainly a real phenomenon. Changing judicial terms would require an amendment to the Constitution; not impossible, but hard. On the other hand, Congress could expand the Supreme Court -- say, to 12 judges -- by statute. If you believe the problem is arrogant holdovers, that might fix it.
Another possibility, if you're amending the Constitution anyway, would be to switch the federal judiciary to an elected office, with terms long enough to ensure it doesn't become too politicized. Eight or twelve years would do it, I suppose. Many states -- including mine -- have elected judiciaries. They're sometimes political, but then so are the federal courts.
(3) Crazy rulings on sexual harassment, etc. Actually, those could often be fixed by statute. Most of the law in those and other areas is based on judicial interpretations (or misinterpretations) of statutes; change the statute, and you solve the problem.
(4) Reliance on foreign law. I'm not crazy about that, though doing so in the context of deciding what's "cruel and unusual punishment" seems less exceptionable than doing so in other settings. It's possible that Congress could, by statute, forbid federal courts from considering foreign law in interpreting the American Constitution, as part of its Article III power to make "exceptions and regulations" of the Court's appellate jurisdiction. And if not, this is a topic on which, I suspect, a Constitutional amendment might pass pretty readily.
This doesn't exhaust the list, but it's a start. If people are unhappy with the judiciary, they need to think about how to fix it, using the Constitutional methods for doing so. You'll be able to tell the loonies and the posturers from the serious ones by whether they discuss specific reforms, or just fire unaimed broadsides at the judiciary as a whole. I hope that there will be fewer of those than there seem to be, now.
Thanks for the POSTIVE list of possibilties. With the current gridlock (blame both parties) in Congress and what I'll just call a lack of leadership by Bush, it seems that the judicary has stepped into the power vacuum by default and thier questionable rulings are now getting more exposure. I think change can be accomplished but by whom is another question entirely.Kathianne said:Some of these have been discussed, but I like that this rounds them up and gives possible solutions:
http://www.msnbc.msn.com/id/7469954/#050413
Mr. P said:I am 100% opposed to the Court considering any Law or Case outside of the US Constitution. Other than that, I don't see a problem with the Judicial system.
Much noise is being made by the extreme right wing fringe and it seems to be getting lots of attention..Does that mean things are broken? I don't think so. I think it's happened many times in history by many groups. Some are just not happy with rulings...should we change the system for that? I don't think so, that would be a never ending road, wouldn't it?
In other words folks, If it ain't broke, don't fix it. Just my opinion.
I liked this part....dilloduck said:it's more than the extreme right wing that are complaining and we're not talking simple disagreements here-----We talking about some incredibly stupid shit.
You?You'll be able to tell the loonies and the posturers from the serious ones by whether they discuss specific reforms, or just fire unaimed broadsides at the judiciary as a whole.
Mr. P said:I liked this part....
You?
LOL, exactly my point!dilloduck said:
Why ruin a perfectly good thread to flame me me Mr P.?Mr. P said:LOL, exactly my point!
Huckleburry said:The right is a funny bunch.
