*QL-ED*: Meese on Right-Wing Strategy to Counter Judiciary (long)
[Note: From a non-member of the list, but definitely worth the read.
As the poster suggests, the article details what the right thinks
should be done RE such items as the appointment of "activist judges"
who "exceed their constitutional authority." Specific references
to the Amendment 2 decision.]
From: LelioRisen@aol.com
The following article is rather lengthy, but is important for knowing what
the strategy from the right will be, in relation to the courts. I am picking
up the article from where it addresses concerns on pro-gay court decisions
and taking it through the suggested strategy set forth by Meese. Contact
information is at the end of the article. From The Policy Review. -- Scott
The Imperial Judiciary. . . And What Congress Can Do About It
By Edwin Meese III & Rhett DeHart
Policy Review: The Journal of American Citizenship
January-February 1997, Number 81
(excerpt)
Overturning state referenda. In Romer v. Evans (1996), the U.S. Supreme Court
actually negated a direct vote of the people. This case concerned an
amendment to the Colorado constitution enacted in 1992 by a statewide
referendum. "Amendment 2" prohibited the state or any political subdivisions
therein from adopting any policy that grants homosexuals "any minority
status, quota preference, protected status, or claim of discrimination." The
Court ruled that the amendment was unconstitutional because it did not bear a
"rational relationship" to a legitimate government purpose and thus violated
the Equal Protection Clause of the Fourteenth Amendment.
The Supreme Court has desecrated the principle of self-government and
appointed itself the arbiter of the nation's moral values
The state of Colorado contended that this amendment protected freedom of
association, particularly for landlords and employers who have religious
objections to homosexuality, and that it only prohibited preferential
treatment for homosexuals. But the Court rejected these arguments and offered
its own interpretation of what motivated the citizens of Colorado, claiming
that "laws of the kind now before us raise the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons
affected."
The dissenting opinion argued that Amendment 2 denies equal treatment only in
the sense that homosexuals may not obtain "preferential treatment without
amending the state constitution." Noting that under Bowers v. Hardwick
(1986), states are permitted to outlaw homosexual sodomy, the dissent
reasoned that if it is constitutionally permissible for a state to
criminalize homosexual conduct, it is surely constitutionally permissible for
a state to deny special favor and protection to homosexuals. The Court's
decision, the dissent charged, "is an act not of judicial judgment, but of
political will."
It is hard not to regard the Romer decision as the pinnacle of judicial
arrogance: Six appointed justices struck down a law passed by 54 percent of a
state's voters in a direct election, the most democratic of all procedures.
In one of the most egregious usurpations of power in constitutional history,
the Court not only desecrated the principle of self-government, but appointed
itself the moral arbiter of the nation's values.
Turning the Tide
Fortunately, Congress has a number of strategies at its disposal to confine
the judiciary to its proper constitutional role:
1. The Senate should use its confirmation authority to block the appointment
of activist federal judges.
When a president appoints judges who exceed their constitutional authority
and usurp the other branches of government, the Senate can properly restrain
the judiciary by carefully exercising its responsibilities under the "advise
and consent" clause of Article II, Section 2 of the Constitution.
Normally, the Senate Judiciary Committee conducts a hearing on the
president's nominees. Those nominees who are approved by the committee or
submitted without recommendation go to the full Senate for a confirmation
vote.
Unfortunately, the confirmation process in recent years has been relatively
perfunctory. The Senate has been reluctant to closely question a nominee to
ascertain the candidate's understanding of the proper role of the judiciary.
The Senate committee hearing provides an excellent opportunity to discern a
judicial candidate's understanding of a constitutionally limited judiciary.
It also provides a public opportunity for judicial watchdog organizations to
testify in support of or against a particular nominee.
The Constitution established Senate confirmation to ensure that unqualified
nominees were not given lifelong judgeships. In carrying out this important
responsibility, senators should ascertain a prospective judge's commitment to
a philosophy of judicial restraint and fidelity to the Constitution. In so
doing, they should carefully review all the opinions, legal articles, and
other materials authored by the candidate, the personal background report
prepared by the Federal Bureau of Investigation, and the testimony of judges
and other attorneys who have had ample opportunities to view a candidate's
work. In the name of efficiency, the full Senate sometimes votes to confirm
judicial nominees in bundles. This practice should cease. Senators should
vote on each nominee individually, in order to remind the prospective judge
and the public of the awesome responsibility of each new member of the
judiciary and to hold themselves accountable for every judge they confirm to
the federal bench.
2. Congress should strip the American Bar Association of its special role in
the judicial selection process.
The American Bar Association (ABA) has shown itself to be a special-interest
group, every bit as politicized as the American Civil Liberties Union or the
National Rifle Association. In the 104th Congress, for example, the ABA
officially supported federal funding for abortion services for the poor,
racial and ethnic preferences, and a ban on assault weapons; and it opposed a
ban a flag-burning, reform of the exclusionary rule and of death-penalty
appeals, and a proposal to restrict AFDC payments for welfare mothers who
have additional children. Hence it should be removed from any official role
in evaluating judicial nominees. It would still be free to testify before the
Senate Judiciary Committee concerning potential judges, but it would not have
any special status or authority.
The Senate will always need the impartial assessment of judges and lawyers
who have a detailed knowledge of the work and background of a judicial
candidate. In place of the ABA, the Senate should appoint a special
fact-finding committee in each of the 94 federal judicial districts. These
lawyers would be selected for their objectivity, ideological neutrality, and
understanding of the constitutional role of the judiciary. They would obtain
the detailed information the Senate needs to evaluate a candidate, and would
give that information directly to the Judiciary Committee without subjective
comments or evaluation.
3. Congress should exercise its power to limit the jurisdiction of the
federal courts.
Congress has great control over the jurisdiction of the lower federal courts.
Article III, Section 1, of the Constitution provides that "[t]he judicial
power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish."
[Emphasis added.] It is well-established that since Congress has total
discretion over whether to create the lower federal courts, it also has great
discretion over the jurisdiction of those courts it chooses to create. In
fact, Congress has in the past withdrawn jurisdiction from the lower federal
courts when it became dissatisfied with their performance or concluded that
state courts were the better forum for certain types of cases. The Supreme
Court has repeatedly upheld Congress's power to do so.
Congress also has some authority to limit the jurisdiction of the Supreme
Court and to regulate its activities. Article III of the Constitution states
that the Supreme Court "shall have appellate jurisdiction, both as to law and
fact, with such Exceptions, and under such Regulations as the Congress shall
make." [Emphasis added.] Although we recognize that the scope of Congress's
power to regulate and restrict the Supreme Court's jurisdiction over
particular types of cases is under debate, there is a constitutional basis
for this authority.
In the only case that directly addressed this issue, the Supreme Court upheld
Congress's power to restrict the Court's appellate jurisdiction. In Ex Parte
McCardle (1869), the Court unanimously upheld Congress's power to limit its
jurisdiction, stating:
"We are not at liberty to inquire into the motives of the legislature. We can
only examine into its power under the Constitution; and the power to make
exceptions to the appellate jurisdiction of this court is given by express
words. What, then, is the effect of the repealing act upon the case before
us? We cannot doubt as to this. Without jurisdiction, the court cannot
proceed at all in any case." [Emphasis added.]
Although some respected constitutional scholars argue that Congress cannot
restrict the Supreme Court's jurisdiction to the extent that it intrudes upon
the Court's "core functions," there is no question that Congress has more
authority under the Constitution to act than it has recently exercised. The
104th Congress displayed an encouraging willingness to assert its authority
over the jurisdiction of the lower federal courts. For example, the Prison
Litigation Reform Act of 1995 reduced the discretion of the federal courts to
micromanage state prisons and to force the early release of prisoners. The
Act also makes it more difficult for prisoners to file frivolous lawsuits.
(An incredible 63,550 prisoner lawsuits were filed in federal court in 1995
alone.) Congress also passed the Effective Death Penalty Act of 1995. This
Act limited the power of the federal courts to entertain endless habeas
corpus appeals filed by prisoners on death row, significantly expediting the
death-penalty process.
Other issues are due for some congressional muscle-flexing to restrain an
activist judiciary:
Congress should consider restricting the courts' jurisdiction over school
choice, same-sex marriage, and other issues best left to the people.
Private-school choice. Some radical groups like the American Civil Liberties
Union argue that the government would violate the First Amendment's
Establishment Clause if it gave a tuition voucher to a family who uses it at
a religious school. Under current Supreme Court precedents, school vouchers
are almost certainly constitutional. Nevertheless, some federal judges have
indicated that they would invalidate private-school choice plans under the
Establishment Clause. Moreover, if more activist justices are named to the
Supreme Court, a liberal majority could crush one of the most promising
educational initiatives in recent years by judicial fiat. To ensure that the
issue of private-school choice is decided through the democratic process,
Congress should consider restricting the Court's jurisdiction over this
issue.
Judicial taxation. "Judicial taxation" refers to federal court orders that
require a state or local government to make significant expenditures to pay
for court-ordered injunctions. For example, one federal judge ordered the
state of Missouri to pay for approximately $2.6 billion in capital
improvements and other costs to "desegregate" the school districts of St.
Louis and Kansas City, which in recent years had lost many white students. To
attract white students back into the system, a federal judge required Kansas
City to maintain the most lavish schools in the nation, and actually ordered
the city to raise property taxes to pay for his court-ordered remedies.
There's a name for tax increases imposed by appointed, life-tenured federal
judges: taxation without representation. Under the Constitution, only
Congress can lay and collect taxes; our Founding Fathers would be appalled at
the thought of federal judges doing so. In Federalist No. 48, James Madison
explained that in our democratic system, "the legislative branch alone has
access to the pockets of the people." To codify this principle, Congress
should consider restricting the federal courts' authority to order any
government at any level to raise taxes under any circumstance.
Use of special masters. Federal judges sometimes appoint "special masters" to
micromanage prisons, mental hospitals, and school districts. In the past,
these special masters have been appointed to carry out the illegitimate
excursions of judges into the province of the legislative and executive
branches. Moreover, the use of special masters has been a form of taxation,
in that state and local governments are required to pay their salaries and
expenses -- which have often been extravagant. In some cases, special masters
have hired large staffs to help execute the court order. Congress should
outlaw special masters; without them, federal judges would be constrained by
the limits on their time and resources from managing prisons or other
institutions.
Same-sex marriage. No area of the law has been more firmly reserved to the
states than domestic relations. Nevertheless, the Court's reasoning in Romer
v. Evans suggests the possibility that some federal judges will "discover" a
constitutional right to homosexual marriage, and thus remove the issue from
the democratic process.
The Hawaii Supreme Court recently indicated that it would soon recognize
homosexual marriages, which all other states would then have to recognize
under the Full Faith and Credit Clause of the Constitution (Article IV). This
possibility motivated Congress to pass the Defense of Marriage Act, which
authorized any state to refuse to recognize a same-sex marriage performed in
another state. The Act does not, however, prevent the federal judiciary from
usurping this issue. Congress should consider going one step further to
remove the jurisdiction of the lower federal courts over same-sex marriages
to ensure that this cultural issue is decided by the legislative process in
each state.
4. The states should press Congress to amend the Constitution in a way that
will allow the states to ratify constitutional amendments in the future
without the approval of Congress.
One reason judicial activism is so dangerous and undemocratic is that
reversing or amending federal court decisions is so difficult. When a
decision by the Supreme Court or a lower federal court is based on the
Constitution, the decision cannot be reversed or altered except by a
constitutional amendment. Such constitutional decisions are immune from
presidential vetoes or congressional legislation.
Judges with life tenure show less restraint when their chances of being
overruled by constitutional amendment are slight.
The existing means of amending the Constitution, however, are seldom
effective in halting judicial activism. The amendment procedure set forth in
Article V of the Constitution is difficult and lengthy for good reason: to
avoid hasty changes spurred by the passions of the moment. But history has
shown that even the most egregious court decisions -- particularly those that
affect the balance of power between the national government and the states --
have been impervious to correction by constitutional amendment. One reason
for this is that Congress, which must initiate such amendments, is loath to
give up federal power.
The amendment procedure of the U.S. Constitution led Lord Bryce to conclude
in his 1888 study, The American Commonwealth, that "[t]he Constitution which
is the most difficult to change is that of the United States." This
difficulty has encouraged judicial activism and allowed the unelected federal
courts to "twist and shape" the Constitution, as Jefferson predicted, as an
"artist shapes a ball of wax." The reason that the difficult amendment
procedure encourages judicial activism is simple: Life-tenured judges are
less likely to show restraint when the possibility that their rulings will be
rejected is slight.
Consequently, one strategy to rein in the federal judiciary is to revise the
amendment procedure in Article V of the Constitution to allow the states to
amend the Constitution without Congress's approval and without a
constitutional convention.
Here's how it would work: When two-thirds of state legislatures pass
resolutions in support of a proposed amendment to the Constitution, Congress
would have to submit it to all the states for ratification. The proposal
would then become part of the Constitution once the legislatures of
three-fourths of the states ratify it. Congress's role would be purely
ministerial. This process would give the states equal power with Congress to
initiate an amendment and would further check the power of the federal courts
and of Congress.
5. Congress should stop the federalization of crime and the expansion of
litigation in federal court.
Whenever Congress enacts a new federal criminal statute or a statute creating
a cause-of-action in federal court, it enlarges the power and authority of
the federal courts and provides more opportunities for judicial activism. At
the same time, the federalization of crimes that have traditionally concerned
state and local governments upsets the balance between the national
government and the states. The following steps can help reduce the
federalization of the law and once again restore balance to the federal-state
relationship.
Recodify the U.S. Code. In the present federal criminal code, important
offenses like treason are commingled with insignificant offenses like the
unauthorized interstate transport of water hyacinths. The Federal Courts
Study Committee found that the current federal code is "hard to find, hard to
understand, redundant, and conflicting." Ideally, Congress would start with a
blank slate, recodifying only those offenses that truly belong under federal
jurisdiction. Due to the highly political nature of crime, such an
undertaking might require the creation of an independent commission, modeled
after the recent commission for closing unneeded military bases.
Require a "federalism assessment" for legislation. This idea would require
that all federal legislation offer a justification for a national solution to
the issue in question, acknowledge any efforts the states have taken to
address the problem, explain the legislation's effect on state
experimentation, and cite Congress's constitutional authority to enact the
proposed legislation.
Create a federalism subcommittee within the judiciary committees of the House
and Senate. First proposed by President Reagan's Working Group on Federalism,
federalism subcommittees would attempt to ensure compliance with federalism
principles in all proposed legislation.
Judicial activism has harmed virtually every aspect of public policy in
America. Liberalism has accomplished much of its agenda in the last 30 years
not through the electoral process, but instead in the federal courts.
Conservatives will never be able to shape public policy until they can curb
activist judges. Congress can and should move to do so.
Edwin Meese III, the 75th attorney general of the United States (1985-1988),
is currently the Ronald Reagan Fellow at The Heritage Foundation. Rhett
DeHart is special counsel to Mr. Meese. This article is adapted from Mandate
for Leadership IV, published by The Heritage Foundation in January 1997.
Subscribe to Policy Review: The Journal of American Citizenship or call 1-800
304-0056.
Send a Letter to the Editor or write our editorial office:
Policy Review: The Journal of American Citizenship
214 Massachusetts Avenue, NE, Washington, D.C. 20002.
Phone (202) 546-4400, Fax (202) 608-6136.
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