Sunday, May 21, 2006

Updates and Judicial Activism

There is a very good reason that my posts have become more sporadic rather than regular lately.
I have been EXTREMELY busy the past few weeks. I thought that after April my schedule would SLOW DOWN. However, its only sped up. So for those of you interested in what exactly has sped up so much that I haven't done a political post in................a REALLY long time it is because of the following events that just happened since the beggining of May.

1. Finals-which are OVER!!!!!!!!!!!!!!!

2. Operation Completion

3. 3 Hypothetical Campaigns

4. Named ******* County Volunteer Coordinator (2nd in command) for the Reed Campaign.

5. Confirmed ******* County TARS Communications Director

6. Elected Secretary of my GenJ club

I will be absent for 2 consectuive weeks from the 27th of May to the 7th of June doing political things and I probably WON'T have internet access.

So now that you know what I'm upto, I can post something interesting.

This is an essay I wrote back in October, with the recent judicial activism displayed in GA andother places Nation-Wide, and also right after reading Mark Levin's "Men In Black" we seriously need to think about our courts.
Supreme Court V. America's Tide

There is an exciting time in our nation when the President gets to nominate justices to the Supreme Court. That nominee will be in office for decades, and has the potential to influence our nation dramatically. Because justices have so much influence on our nation’s course of domestic action, a lot of time, thought and prayer must go in to choosing a Supreme Court nominee. It is vital for Americans to understand why so much thought and preparation goes into this process. 2To fully understand the process we must first look at the judicial branch and how it affects our domestic society. Secondly we must look at some of the justices, how they are nominated and why it is important to nominate good ones. Finally we must look into the future and use history to reveal what type of justice should be nominated in the future and why it is important that type is nominated.

The Judicial branch was designed to uphold the Constitution, determine if laws were Constitutional, and resolve some conflicts between the states that involve the Federal Government (like laws, trade and commerce, etc...). The influential impact of the Supreme Court can be seen throughout History. The Court’s powers include moral Issues as well as law Issues. As seen in the moral issue of abortion in the Roe V. Wade unprecedented decision, The Court declared abortion Constitutional. With that ruling came a turning point in our nation, when before abortions were illegal and looked down upon, now our younger society sees them as good alternatives for themselves if they don’t want the child.

Now that we have seen a minute fraction of the influence of the judicial branch, we can look at the process of becoming a justice more in-depth. Once the President appoints his nominee to be a justice, he or she must go something called the “confirmation hearings” which is when the nominee is asked an extensive amount of questions and say things about him or her for the rest of the committee members to consider. After that the committee votes on it, if the nominee passes, he goes to the full senate for another vote. If the Senate passes he or she becomes a Justice. While it is important to pass through the voting process as quickly as you can if a justice like Rehnquist died or another Justice like Sandra Day O’Conner retired; it is vital that the President take time in considering who to nominate. One of the unique things about being Justices is that they have Life terms. So when a President nominates someone it is for his or her life, so he must be very careful who he chooses because those justices will be there for decades. As such they will have the “power” to turn the tide of our country for better, or for worse.

In the Oath of office the Justice takes he swears to uphold and protect the Untied States Constitution. There has been a turn in the tide of America and we have heard of “legislating from the bench” that is when a justice defies the oath that they have taken and has pushed his or her personal agenda over that of the United States Constitution. In the instance of Roe V. Wade, it was an unprecedented decision; which means the Courts did not sight a constitutional “right” that was actually in the constitution. More or Less they based their decision on the “It’s my body” and the “Health of the mother” talking points. Lately, phrases have been the reason for court decisions and the Constitution, which they have sworn to uphold, has not.

As we have seen throughout history, the Supreme Court has much influence in our domestic society. We have also seen how when we appoint justices they can change the tide for better or for worse. In the Instance of Roe V. wade, the tide changed for worse. However, if we appoint Justices that have what we call a “Strict interpretation of the Constitution” we can turn the tide for the better. It is vitally important to nominate this type of justice because The Constitution is one of the most important documents in American history, and more importantly, some of the standards set come from God’s Word.

The Courts are playing a very important role in our country, and they will continue to do so. Not only do they have the longest term in “office” but they have the power to turn this Country around. If we as Americans want to change for the better, wouldn’t it make more sense to elect those who will nominate people with a strict interpretation of the Constitution and who will their job and not legislate from the bench? It is for these reasons that we as Americans must think about who we are electing into office carefully; our decisions today will affect us for generations to come.

Here is an excerpt of a book report I wrote on the 16th of May. (it's on Men In Black)

After reading the biographies of some of the judges my first thought was and still is "why were they in there?” After I continued reading, it became clear "because the legislators and people didn't act". I was appalled at how the judges treated certain cases, and how they twisted the constitution to fit their activist agenda. The more I think about it, the more I realize that while we may be winning the war to preserve America on the foreign front, we are losing it our freedoms on the domestic front through Supreme Court decisions.

For instance, with eminent domain, you are losing your fourth amendment right to own property and keep it.

In Roe V. Wade, the unborn have lost the inalienable rights to life, liberty, and the pursuit of happiness, just because of ONE court decision.

In Feingold, your freedom of speech is regulated during elections.

The list goes on and on and on about Supreme Court decisions that directly usurp the founder's intent.

Over and over and over again in the past and recent history our U.S. Supreme Court has violated the constitution and given itself authority that it did not possess.

The sad thing is this will keep happening unless we and our legislators decide to take a stand and take back the power that we originally had. The Supreme Court has gone against the will of America and the founder's, it has instead decided to legislate from the bench and further the liberal agenda by calling the constitution a "living breathing document that changes with us". Last time I checked my constitution, which was about five minutes ago, it was the same as it was last year, and the same as it has always been. The Articles have not changed since the founding, no matter what the Men in Black think.

If there was ever a need to understand the Supreme Court and the decisions it is now; we cannot change the future unless we first understand the past. Patrick Henry once said, "The only way to judge the future is by the past", that is definitely true today. We need change in our court system, but until we know and learn what has gone on before and what we can do, our efforts will be fruitless.

The question is: what can we do about it?

The answer is debatable. Some propose term limits, some propose litmus tests, some propose re-doing the entire system completely, and others propose the “Constitutional Option”. While term limits and litmus tests may be good, the Constitutional Option is the best way to go.

What makes the Constitutional Option better? Impeachment serves as an effective deterrent and punishment for those justices who do not follow the law; the “threat” of losing one's job will usually cause one to realize that they need to get back in line and do the job they swore they would do.

We as Americans, and even more as Christians, need to be aware of our rights, and unafraid to use them. We must elect the right people into office, help them be elected, and maintain contact with them, to tell them that we care about what is going on. We must take a stand to stop judicial activism and turn America back to its roots; otherwise, in the next generation or two, our rights will be gone. I do not know about the rest of America, but I for one, want my grandkids to have the rights that have been enjoyed and exercised in centuries past.
Some things to chew on.

Kierstyn P.


MG said...

Why do you ONLY talk about ONE Supreme Court decision? Though I agree with a woman's right to choose, I acknowledge that Roe v. Wade as an aberration in the court. However, there are MANY decisions in the course of Constitutional history which have been unpopular with one political party or another and have caused an uproar. Such as Korematsu v. US, US v. O'Brien, Plessy v. Ferguson, Brown v. Board of Education.

Your argument regarding judicial activism fails because you have provided ONE example and ignored the thousands of other decisions the Supreme Court has heard in the history of its existence.

Further, there are arguments in FAVOR of the Roe v. Wade ruling in that the Supreme Court was acting to prevent the "tyrrany of the majority." At the time the Texas and Georgia laws at issue were established, there were NO WOMEN serving in either state legislature - and therefore, the role of woman's body was being determined solely by men. The role of the Constitution is to proetect the "rights" of all individuals. Also, you should realize that Roe v. Wade was a 7-2 decision, and the majority of justices on the court were appointed by Republican Presidents. Indeed, Harry Blackmun, the justice who wrote the decision was appointed by Richard Nixon. Also - are you aware that they postponed the ruling on Roe v. Wade so that Justice Blackmun could spend the summer at the Mayo Clinic in Minnesota researching the history of abortion, and the medical doctors opinions and understanding?

If you really want a good cross-spectrum of Supreme Court rulings, and opinions, you should read a couple books:

Closed Chambers - by Edward Lazarus
Active Liberty - by Stephen Breyer
The Brethren - by Bob Woodward
All the Laws But One - William Rehnquist
A Matter of Interpretation - Antonin Scalia

"Judicial Activism" doesn't mean anything. Every decision that a judge makes can only be arrived at based upon the cases brought before the court, and the laws at issue as presented by the lawyers. Judges are not given choices on what facts arrive in their courtroom. Do you understand that?

A Supreme Court justice should be considered based on SO MANY other factors rather than what their opinion of Roe v. Wade is. Because it doesn't really matter...Roe v Wade is solid law and will not be overturned by the courts.

Kierstyn Paulino said...

Actually, if you read it, I used Feigngold, Roe, and eminent domain, and those are just a few, I have many more.......just not enough time to post em all.

A supreme court Justice's job is to uphold the CONSTITUTION, not legislate from the bench and furhter their own agenda.

MG said...

Right - that's my point. THEY DON'T get to "legislate from the bench."

legislation is about drafting laws, which are to affect the whole of the nation.

A judge's role is to rule on a single dispute that is brought before its court.

The judge ONLY has the benefit of the specific facts and circumstances of a single case as presented to him by the attorneys representing both sides.

Where a legislature can hold hearings, solicit information, ASK and RESEARCH their constituents as to HOW this piece of legislation will affect the country/state/or city as a whole, whatever the case may be...a JUDGE is ONLY able to settle and rule on a single dispute and to determine whether that law at issue is or is not in conflict with the United States Constitution.

This is why, all district court rulings are appealable. An Appeals court consists of 3 judges -- so there is not ONE SINGLE JUDGE putting forth his own MUST be a majority rule. So EVEN IF you have a lower court judge that rules incorrectly, or puts his own beliefs into the ruling - the Appeals Court can revisist and overturn.

The next step of course, is that the Appeals court decision can then be appealed for a re-hearing wherein the ENTIRE Appeals Court hears the case. This means typically 9 or 11 judges total, depending on which Circuit Court you are in. Again - no ONE JUDGE gets to control the decision or ruling. It is majority rule.

As a FINAL option - the parties involved may choose to appeal to the Supreme Court, a body of 9 justices. Again, you need at least 5 judges to rule on a decision. By the time the issue reaches the Supreme Court - they are not retrying the case, they work with the case as presented to them.

The term "Judicial activism" is a buzzword that conservatives like to throw around, but if you actually examine in detail the route at which cases are brought into a court of law, and the options and oversight of individual judges, you will see that "judicial activism" is just a mythical word.

Read more Supreme Court history. And I missed your point about eminent domain, but I'll go back and reread your post.

Matt A. said...

Sending some backup tomorrow KP!

Matt A. said...

Okay, gonna cover a few points here...

First off, KP has presented more than one example…and those are only a few.

Further, there are arguments in FAVOR of the Roe v. Wade ruling in that the Supreme Court was acting to prevent the "tyrrany of the majority." At the time the Texas and Georgia laws at issue were established, there were NO WOMEN serving in either state legislature - and therefore, the role of woman's body was being determined solely by men.

Actually the argument that Roe vs. Wade was to prevent the tyrrany of the majority is not correct. If it truly was to allow the women to have a voice, then it accomplished NOTHING. No women served on the court that decided Roe vs. Wade. If you want to use this no women thing then why don’t we add babies to the Legislature and the Supreme Court. The role of a women’s body was also decided by men in Roe vs. Wade so this point, I think, is done with or moot.

"Judicial Activism" doesn't mean anything. Every decision that a judge makes can only be arrived at based upon the cases brought before the court, and the laws at issue as presented by the lawyers. Judges are not given choices on what facts arrive in their courtroom. Do you understand that?

We understand quite clearly, just because the facts are given does not mean that they do not rule on their private inclination. Just because the facts are given does not mean that Judicial Activism does not exist.

As for your last comment about how multiple judges prevent activism…
Really the amount of judges does not matter in this case. If I am a game is being played and there are three referees and two have them have private inclinations, then all it takes is those two to really screw up the game and makes calls so that one team will have an advantage. All it takes is a few, judicial activism certainly can and certainly does exist.

That’s all for now…

mg said...

Look - my issue isn't really about Roe, I was addressing that because that is the case she raised...

The Supreme Court (yes, made up of all men) acts as an interpreter of the when a law is passed that affects everyone (or at least ALL of the women) and they have not had a voice in the process, then it is reasonable that the law be overturned. That is merely an show that the laws set in place were not enacted by the individuals who are affected by them. the women. In fact - it was overturned on the issue of privacy rights of ownership over one's body.

Again - you say "judicial activism does exist" but you cite no examples to counter the facts I have given you. Go take a basic first year law course in civil procedure...
HOW does a case come before a judge? Litigants file suit.
WHAT evidence does a judge here? the facts presented by the parties?
WHAT control does the judge have over what evidence the 2 competing parties present. NONE. But for the fact he rules on the admissibility, and that the evidence complies with the Federal Rules of Evidence. You can look those up, if you're interested in reading them.
A litigant who files the case then chooses whether they want a Jury or a bench trial - AGAIN, NO CONTROL by the judge. If a party chooses a Jury trial - the judge is to abide by the ruling of the jury. If the party chooses a bench trial, then they have SELECTED a judge to rule. AT THAT POINT - he rules based only upon the evidence and arguments presented.

If the losign party doesn't like the answer - they have a right to an appeal. At the appellate level, you're telling me that 2 judges gang up and become "activist?"

THAT is ridiculous. For multiple reasons. Primarily, the case that the appellate court judges see is only ON THE PAPERS and arguments of the parties.....they don't retry the case. The appellate court judges have even less control over what facts or what issues are brougth before them. They don't get to choose, "Oh, i think i'll rule on an abortion case today!!" When in fact, they have an issue regarding the interpretation of a statute imposing a import tarriff on sugar.

Then, as i said -- should your "worst case scenario" exist and 2 judges "gang up" on the third and bully him....the 3rd judge can write a dissenting opinion. In federal court, when there is a 2-1 splite at the circuit level, a plaintiff can request a rehearing by the ENTIRE appeals court. which means 9 or 11 judges. So, you're telling me that then you're not getting a fair trial?

Finally - the Supreme Court - which hears hour long arguments on the lower court rulings. If you read the opinions over the past 20 years of the Rehnquist court (and, by the way, I have read many), you'll see the Justice who most often overturns and rules against legislation is Antonin Scalia -- so he's the one who is the "activist" -- yet he is the conservative Christians' golden child on the Supreme Court.

Judicial Activism is a buzzword. Its used to stir up your emotions and make you think that these judges are out to rewrite the laws. They simply do not have that power, or access to do that.

Matt A. said...

I don't have the time or energy to argue in circles with people like you. I don't see how you can say that it is not possible for judicial activism to exist, big deal it goes through many courts. I still happens!

It is not a buzzword. The argument that it does not exist is simply a ploy so that Liberals can stick their head in the sand and look the other way. ;)

mg said...

Look. You have refuted NOTHING that I said. And by the way, if you take a first year law school Civil Procedure course, you'll see that the "process" i've described to you is accurate.

Its a buzzword - and you can keep throwing it around, if you want but its meaningless.

use some common sense - consider what I said - you are NEVER in a situation where ONE JUDGE is given carte blanche control over any case. its just not that simple.

Kierstyn Paulino said...

I never said it was one judge, but one decision.

*sigh* as much as I'd LOVE to go through and debate this, because I have many arguments, I'm headed out for 2 weeks and don't have the time to post all I have.
Maybe when I get back I'll make a post refuting the arguments, but till can debate out with Matt or someone else as long as they want to participate.




MG said...

There's nothing to debate.

You want to label a judge an "activist" simply because you don't like his decision. ALl I'm telling you is that PROCEDURALLY, it is impossible for a judge's to actually be "activist" alter the laws. They are simply able to rule on the issue presented to the court. Judges have zero control over what cases come before them, and zero control over what a court of appeals will do after they rule.

And, by the way, lower court federal judges are bound by Supreme Court precedent. SOO, they can't even be "activist" if they wanted to. In terms of abortion rulings...currently, the state of the law is that any laws/regulations regarding abortion must comply with the "undue burden" standard as articulated in Casey v> Planned Parenthood, a 1994 case. A federal judge can only rule on whether or not a law/regulation either "fits" in the standards articulated in the Casey decision...or it doesn't. If it doesn't, its unconstitutional.

It is actually impossible for lower federal courts to overturn Roe v. Wade -- especially consider Roe v. Wade isn't the current state of abortion law. The only Court capable of overturning Casey - the current standard - is the Supreme Court. However, because of the body of law that has developed, and the number of citizens that rely on the law - it is highly unlikely that 5 judges on the Court will do this. REGARDLESS of what their personal beliefs, they must comply with the law. Otherwise -- they'd be "activist judges" wouldn't they?

Matt A. said...

I am going to come post a reply sometime, it may take a while because I am EXTREMELY busy, but it will come.

There's nothing to debate.

Then why do you keep debatnig?

Matt A. said...

I don't agree with all the points, but here is an interesting link: