Wednesday, February 25, 2004

Judicial activism: Judges behaving badly

By JOHN MROSEK

Oligarchy: Government by the few. This was what George Washington warned of in his farewell address of 1796: “... The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism.”

After rejecting rule by a king, the founders of our country wanted to prohibit power in the hands of a few. The solution of the Founding Fathers was a compromise between law and liberty, the U.S. Constitution, where each branch knows its place.

How then do we neutralize recent “judicial activism,” or when judges try to “make law”? Some call it “judicial tyranny.” Judge Robert Bork concluded, “Judicial activism elevates the objectives of a dominant minority above the democratic process.”

Need an example? The Washington state legislature struggled with the proposal that assisted suicide be made legal. Not sure about this so-called “right-to-die,” the legislature ordered a referendum. Washington state voters went to the polls and rejected the idea.

Not satisfied, private interest groups convinced the U.S. Ninth Circuit Court of Appeals to “find” a Constitutionally guaranteed “right to die” and to disregard the state legislature and a popular vote. Thus, as U.S. Supreme Court Justice Antonin Scalia warns, “By trying to make the constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”

For 200 years, the U.S. Constitution did not inspire one federal court to believe that prayer in schools was an “establishment” of religion. However, in 1962 the U.S. Supreme Court in a split decision said that school students should not pray but that the Supreme Court itself could still open its daily sessions with a prayer (which they still do).

What a contradiction: “Do as we say and not as we do.” Humpty Dumpty said, “When I use a word, it means what I choose it to mean, neither more nor less.” In similar fashion former U.S. Supreme Court Chief Justice Charles Evans Hughes told us, “The constitution is what the judges say it is.”

The ultimate result — you guessed it — the public loses confidence in the legal system.

Judges who won’t stick to simply enforcing and interpreting the law want to create law and thus become judges behaving badly. This means not only creating new rights but also eliminating old rights.

Judicial activists have tried to rewrite the Second Amendment which guaranteed the “right of the people to keep and bear arms.” The “Living Constitution” elite say that what this really means is that the right to bear arms belongs only to the state of Georgia’s National Guard unit and not to “We the People” in our own homes.

Our Founding Fathers addressed the issue. James Madison at 5-feet-4-inches and 100 pounds was the smallest president, but he became a giant of a man as the “father of the Constitution.” He said, “Judges should not do the will of men but should judge men at law.”

His Federalist Papers partner Alexander Hamilton added, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case.” Follow the law; nothing more and nothing less.

For those of us who are privileged to serve as judges in Georgia, we are reminded under Canon 7 of the Code of Judicial Conduct that we are “encouraged to emphasize in any public statement [our] duty to uphold the law regardless of [our] personal views.” The Founding Fathers could not have been more clear in their job description for judges: Follow the law and leave politics at the courthouse door.

The responsible judge is predictable, uniform and disregards personal politics. Thus, the good judge is like an umpire, calling balls and strikes and the plays at the plate but does not become a part “of the game.”

The judge in the O.J. Simpson murder trial (Lance Ito) created a media circus. By contrast, the judge in the murder trial of NFL linebacker Ray Lewis was unknown because she (Alice Bonner) did her job competently and stayed in the background.

Judicial activism is letting judges “trump” our democratic institutions. It happens not only in the arena of federal constitutional law but also at the local level and with international law, where we are not only surrendering to judges but to judges from other countries!

Judge Bork observes that the key challenge for all free nations “is how to tame and limit the antidemocratic aggressions of their judiciaries and of the international tribunals and forums we are so blithely and thoughtlessly creating.” Incredibly, there are some Americans who prefer the United Nations over the United States.

So why is this so important at the local level ? The need for responsible judges is crystal clear. First, when we think of life-time appointees unchecked by popular elections, we might be tempted to think only of federal judges. However, Georgia law has an obscure form of tenure for judges.

Known as senior status, a judge who has served 10 years can serve as a senior superior court judge and never face another election.

Consider the dispute between the Fayette County Board of Commissioners and the sheriff regarding the county’s creation of a separate law enforcement agency. All of our local judges excused (or “recused”) themselves from the case. Instead, the dispute will be decided by a senior judge from another county who will never face another election.

Judges at the local level can lessen the public confidence in our court system. For example, consider child molestation cases. The legislature passed a law that sexual predators be on a registry (or “list”). That way we are able to call the sheriff or go on the Internet to see if the guy wanting to work in our child’s youth group is a convicted child molester.

Here’s how these cases work. Cases are investigated in detail by one law enforcement agency and a family services agency, followed by review by a judge before arrest, indictment by a grand jury and arraignment before trial.

After all of these constitutional procedures a sexual predator charged with a high-level felony might elect to admit guilt and avoid trial. But if the predator is permitted to plead guilty and “plea bargain” to a misdemeanor and avoid jail or (more importantly) registration as a sex offender, the public is justified in being concerned.

Zoning and land use regulation are another good example. Consider the average zoning dispute. The rights of citizens and neighbors are balanced against individual property owners’ constitutionally guaranteed right to enjoy (and profit from) the use of private property.

The law in Georgia says that when a local government makes a zoning decision, we assume that they were right. The Georgia judge has only one option: To say “yes” or to say “no” and thus to uphold or reject the decision primarily based on the U.S. and Georgia constitutions.

When the judge disregards the local government and orders a particular zoning, he not only exceeds his powers and thwarts local control but jeopardizes public trust in the courts.

Madison’s words should echo in the night: “Were the power of judging joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then also be the legislator.”

How do we solve the problem of judicial activism? U.S. Rep. Tom Delay (R-Texas) has suggested wider use of judicial impeachment. Maybe the simplest solution is to focus on who we choose as judges in the first place.

[John Mrosek is an attorney in Fayetteville, judge for the city of Luthersville and a candidate for Fayette superior court judge. He may be reached at www.mrosekforjudge.com.]