Rehnquist Defends Judicial Independence

It has become popular for right-wing politicians to attack the Judiciary when decisions don't go their way. For many of this ilk, the very freedoms guaranteed by the Constitution go too far. For them, not everyone should have equal rights. For them the Constitutional rights should not extend to homosexuals who seek the 'outrageous' right of marriage, and the rights of privacy do not extend to women who wish to maintain their reproductive rights. In addition, the power of the state should never be constrained, in their view, from imposing the religious views of the majority, God-believing Christians, upon minorities of different or even atheistic views. Thus any attempts to take religion out of government is viewed as an abomination, whether it is to remove prayer from the classroom, delete "under God" from the pledge, or remove Ten Commandments Monuments from the courthouse itself. These types of action, made to defend the very basic American freedoms are attacked as being made by "activist judges."

It was thus with interest, and even with respect, that I read that the ailing Chief Justice William Rehnquist, commented this year upon the importance of the protection of the Judiciary from these attacks. As reported in the New York Times:

But he added that criticism from Congress had "in the eyes of some taken a new turn in recent years" - an oblique locution that nonetheless left no doubt that he himself was among those discerning a new and disturbing twist to the attacks.

Chief Justice Rehnquist mentioned a measure Congress passed in 2003 requiring special scrutiny of judges who issue sentences shorter than those called for by the federal sentencing guidelines. In his year-end report last year, the chief justice said this approach "could appear to be an unwarranted and ill-considered effort to intimidate individual judges."

This year he took account of more recent developments: "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."

The article continues:

There have been calls in Congress to strip the federal courts of jurisdiction to hear challenges to the phrase "under God" in the Pledge of Allegiance, to the display of the Ten Commandments on government property and to the Defense of Marriage Act, a federal law that permits states to withhold recognition of same-sex marriages performed in other states.

On another front, a resolution with dozens of sponsors was introduced in the House last spring criticizing the Supreme Court for citing foreign legal authority in several recent decisions. The court has mentioned foreign law in such rulings as those striking down capital punishment for the mentally retarded and invalidating the Texas criminal sodomy statute.

The House measure, the Reaffirmation of American Independence Resolution, declared that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority."

Apparently even Justice Sandray Day O'Connor is becoming concerned.

So has President Bush defended the Judiciary? As Presidential spokesman Scott McClellan recently stated:

"Activist judges are seeking to redefine marriage for the rest of society, and the people's voice is not being heard in this process,"

Or as Karl Rove, his main advisor has stated:

"The president made it clear we need to do whatever is legally necessary to protect the sanctity of marriage as a union of a man and a woman. Activist judges are attempting to take this out of the hands of the people and to make these decisions in the courtroom. That's not where they belong."

Or as Bill O'Reilly, the right-wing talking head has espoused:

Activist judges who defy the will of the people will now be objects of discussion, and sometimes, scorn. These people have hiden in the weeds for years and now, they are going to be exposed.

So what did our Founding Fathers say about the role of the Judiciary and the danger or defense of the Justice System our nation required? Looking up the Federalist Papers, I came across the writing of Alexander Hamilton who pointed out about the role of the Judiciary:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Hamilton was wise to note that the fact that the courts would sometimes over-rule legislators was NOT because it was the superior body, or a group of 'activist judges' as is described today, instead he pointed out:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Now what has John Kerry said about judicial appointments and what is a "good judge"? In the Second Presidential Debate he stated:

I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I don't believe we need a good judge of that kind of definition on either side.

I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you're reading their decision, their opinion, you can't tell if it's written by a man or woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you're reading a good judicial decision.

What I want to find, if I am privileged to have the opportunity to do it -- and the Supreme Court of the United States is at stake in this race, ladies and gentlemen.

The future of things that matter to you -- in terms of civil rights, what kind of Justice Department you'll have, whether we'll enforce the law. Will we have equal opportunity? Will women's rights be protected? Will we have equal pay for women, which is going backwards? Will a woman's right to choose be protected?

These are constitutional rights, and I want to make sure we have judges who interpret the Constitution of the United States according to the law.

Maybe that sounds like too much common sense. John Kerry is interested in equal treatment for women, minorities, and personal freedom. He isn't interested in participating in the attack on the Judiciary so common around Republican circles today.

John Kerry we needed you in 2004. We need you more than ever for 2008.

Bob