America's founders saw judicial independence as only a means to an end, and provided only for institutional independence — unlimited terms and guaranteed pay. Justice Ginsburg and other progressives, however, today see judicial independence as an end in itself and insist on independence from everything — the people, the other branches of government, and even the law itself.
While Justice Ginsburg acknowledged no legitimate restraints on judicial power, she did identify some annoyances she would like to eliminate. These include the freedom of speech, or at least speech with which she disagrees. She calls this “irresponsible criticism of judges.”
In addition, she singled out for elimination that great representative of the American rabble, Rep. Tom DeLay of Texas. In 1997, Mr. DeLay said that some judges abuse their power by trying to make rather than interpret the law, insisting that Congress can help keep the judiciary in check. Mr. DeLay suggested that criticism and even impeachment of judges who routinely abuse their power might keep them within their proper bounds.
Mr. DeLay, of course, was merely echoing America's founders. In the “Federalist Papers” explaining the new Constitution, for example, Alexander Hamilton wrote that “judiciary encroachments on the legislative authority” would be merely a “phantom,” because the threat of impeachment would be “an important constitutional check” on the judiciary. In the American system, each branch checks and balances the others to keep them within their proper sphere of authority. Hamilton said impeachment would “check” the temptation for judges to encroach upon legislative authority. Mr. DeLay says impeachment might “intimidate” judges, deterring them from judicial activism. There's not a shred of difference between these two positions; indeed, Justice Ginsburg's problem is not with Mr. DeLay, it is with Mr. Hamilton.
As if to further belittle Mr. DeLay's dangerous ideas, Justice Ginsburg observed that he is “not a lawyer but, I'm told, an exterminator by profession.” How could a non-lawyer, she seemed to ask, possibly understand such things? Yet America's founders (lawyers all) sought to persuade not just lawyers, but real people as well, of the Constitution's principles. Those “Federalist Papers” (never assigned and hardly mentioned in my law school career) were written so the average upstate New York farmer (and perhaps exterminator) could understand the concept. Mr. DeLay's lack of a law degree seems to parallel his lack of ignorance about the Constitution and the proper role of judges.
Justice Ginsburg might well have singled out another crazy man who earlier expressed the same position as DeLay: “I have no patience with the complaint that criticism of judicial action involves any lack of respect for the courts. When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it.” Oh, that statement came from Supreme Court Chief Justice Harlan Fiske Stone, who seems more in tune with America's founders and exterminators than with some elitist judges.
Justice Ginsburg said Mr. DeLay's fringe ideas sprang not only from his non-legal mind, but from jealousy, as well. Federal judges, she explained, “have life tenure and face no periodic election campaigns” as do exterminators-turned-politicians. Trendy progressives today believe views or attitudes they do not share cannot be legitimate but must come from some mental defect, ulterior motive or secret agenda. Wouldn't you love to be the fly on the wall when Justice Ginsburg tells Alexander Hamilton how jealous he is?
Justice Ginsburg noted approvingly the comment by New York Times columnist Bob Herbert that an “intimidated judge is a worthless judge.” America's founders, of course, would have said exactly the opposite. A checked and restrained judge — yes, an intimidated judge — is simply a real judge, one who knows what the law is and that she cannot change it to suit her political fancy. Of course, liberals think a judge restrained by the law is worthless, since she won't automatically deliver political results democracy refuses to support. But then a judge Mr. Herbert and Justice Ginsburg would think worthwhile — unchecked, unrestrained and unintimidated — is really not a judge at all.
Justice Ginsburg is threatened by the view that judges must take the law as they find it, no matter what the result, for a more practical reason. Before joining the Supreme Court, she advocated court decisions that “creatively interpreted clauses of the Constitution … to accommodate a modern vision” of society. She approved of “boldly dynamic interpretation, departing radically from the original understanding” of the Constitution. She said courts could “repair” or even “rewrite” legislation to reach desirable results.
Justice Ginsburg has indeed used her judicial position to advance a modernist political agenda that many non-lawyer citizens oppose. She was on the national board of the American Civil Liberties Union when it opposed any restrictions on pornography; on the Supreme Court, she has joined opinions striking down restrictions on television and Internet pornography. She testified at her confirmation hearing that she opposes discrimination on the basis of sexual preference; on the Supreme Court, she joined an opinion striking down a state constitutional provision prohibiting quota preferences for homosexuals. In 1977, she co-authored a report for the U.S. Commission on Civil Rights exposing federal laws “which allow implicit or explicit sex-based discrimination.” These include laws against prostitution, adult/child sex, funding of 4-H Boys and Girls Clubs, and the statute establishing Mother's Day and Father's Day as separate holidays. On the Supreme Court, she wrote the opinion declaring single-sex education unconstitutional.
Judges turning their own political preferences into law are the real threat to judicial independence. It's no wonder she wants us to butt out.
(This article can also be found on WorldNetDaily.com.)
