Curbing the courts

Judiciary should recognize the limits of its power

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Newt Gingrich doesn’t say things just to be popular. In fact, he gets in trouble quite a bit for saying things that are decidedly politically incorrect.

So when he suggested at a recent Republican presidential debate that wayward judges and courts should have their positions abolished by Congress, he probably wasn’t just playing to the crowd.

But he might as well have been. He knew he’d get applause, which he did.

Conservatives are fed up with judges who legislate from the bench and who consider the Constitution to be a “living”
document that bends to the
popular will of the time.

Indeed, when was the last time you saw a court ruling you thought was courageous? It doesn’t seem to happen much anymore; even the courts seem to put their fingers up to test
the political winds these days, when the law might prescribe a different result.

But if you want to make that even worse – if you want judges to be even more political than they already are – then you’ll love Newt Gingrich’s ideas for holding judges more accountable.

Politically, not legally.

Gingrich suggests giving Congress subpoena power to
interrogate judges whose
rulings they disagree with. He also recommends eliminating judgeships and even whole courts for “bad” rulings.

Like Gingrich and many
others, we worry that the courts have conferred upon themselves far too much power – and that we risk sliding into a black-robed oligarchy. Some courts have even taken it upon themselves to determine whether constitutional amendments are “constitutional.” Huh? Constitutions are the ultimate law of the land, and are social contracts we make with each other. They are what we say they are, they say what the people want them to say. Some judges would have it be otherwise, which is plainly frightening.

When the courts appropriated the sole discretion to interpret the Constitution in Marbury v. Madison, they donned a cloak of infallibility that others are starting to draw back.

Still, the rule of law is what binds a civil society and makes peaceful resolution of conflicts the norm. And having judges who are accountable to the law – and not to political whim – is an irreplaceable component of that.

Injecting yet more politics into the court system is a spectacularly horrendous idea.

If conservatives don’t like
it when judges legislate from
the bench or otherwise act
politically in their rulings, rest assured the courts would be a thousandfold more political with Congress looking over their shoulders and threatening them with their jobs for ruling the “wrong” way.

Incidentally, with a conservative majority in Washington,
getting rid of liberal judges might be a tasty thought. But it can work both ways. Would
conservatives like that?

What we’d rather see is a system in which the courts did a better job of policing themselves. Is anyone keeping score, for instance, of the number of times a judge is overturned on appeal? Or how flawed his or her powers of reason seem to be? Is there enough counseling and evaluating? Shouldn’t there be performance metrics in order to weed out the incompetents?

You know, they do take an oath to uphold the Constitution and such. Who’s holding them accountable for that? Yes, they can be impeached – but it happens rarely enough that, absent a popular uprising, it can’t be relied upon to thin the herd.

Judges can reflexively stand on the separation of powers and the need for an independent judiciary – and to this point, we stand with them. But while they must be accountable primarily to the law, they also must navigate the real world. And the audience’s fervent reaction to Gingrich’s broadside against the courts should be cause for alarm and introspection.

If courts don’t respect the limits of their power – and don’t uphold the Constitution, instead of upholding what they wish it said – then the social contract can always be rewritten.

Regardless of what they think.

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wtinney
0
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wtinney 12/21/11 - 12:56 am
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Here is some news for

Here is some news for everyone out there: the courts already have tons of politics and ideology that has nothing to do with the Constitution injected into it at every level. Conservatives cheer the meager 10% of cases that go their way and bemoan the 90% of cases that go against them. My opinion is that conservatives have been asleep for far too long, having this ill-conceived law as an institution-respect for the courts. This is the express reason why conservatives lose so much. They do not fight - but do wine - when the courts tear their worlds apart and denounce morals and traditions as a basis of law (which it is). When liberals lose in the courts, they just double down, fight harder, call the courts wrong, disrespect the whole instiotution of law thereby eroding away the decisions over time. Conservatives judges, because of their respect for the institution of law, will defend to the death precedent - even when they disagree with such precedent. Liberals will always act as activists and attempt, sometimes successfully, to overturn precedent - star decisis respect be damned. That is the reason the courts are so liberal and out of touch with any core of our society, there is only one side truly fighting for a change - the change that if anybody thinks about it would be bad for our country, while conservatives always defend the court and uphold star decisis. All are completely one-sided fights and that's specifically why the courts are always progressive.

carcraft
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carcraft 12/21/11 - 05:37 am
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Judges do need to be held

Judges do need to be held accountable. The consitutional amendment in California to define marriage is a classic example. How can state judges say that a constitutional amendment is unconstitutional when it was leagally passed? The Kelo ruling in Connecticut on emminant domain is another scary ruling. The property confiscated by the city is now a garbage dump since the developer could never get the project off the ground and the area was never developed but the owners of the property finally got their house moved. Cost the city $78 million and they ended up with a garbage dump costing the city instead of making the city money ! What a horrible travesty!

Techfan
6461
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Techfan 12/21/11 - 06:58 am
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"What we’d rather see is a

"What we’d rather see is a system in which the courts did a better job of policing themselves. Is anyone keeping score," of say, how many times judges are flown to retreats and given thousands of dollars in perks or if a judge's family has received hundreds of thousands of dollars working for groups who have a vested interest in cases before the court?

Riverman1
90449
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Riverman1 12/21/11 - 07:39 am
0
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I generally appreciate Newt's

I generally appreciate Newt's ideas, but not this one. The Court works both ways. What if Obama decided he didn't want to follow Court rulings? What if Obama care is ruled unconstitutional and he decides not to obey? Where would Justice Samuel Alito be today after mouthing, "Not true" as Obama spoke? The Gulag?

Keep in mind, the last president who seriously tried to squash the power of the Court was that most liberal, FDR, when he attempted to pack the court with more than nine justices in order to get his New Deal measures upheld.

onlysane1left
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onlysane1left 12/21/11 - 08:19 am
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This article goes against

This article goes against American Government 101, people. Checks and balances. If Congress has the power to overrule the court, who will have the power to overrule Congress? You may not like the standard the court have set, but look at the history of decisions that the court has made that have been overturned later. Congress should not have the final say in a decision the courts have made. If a judge is not doing a relavent job then start the procedure to remove him or her. Don't let congress whimscally decide anything, heck, they can't get together balance a budget, what makes you think they can really judge a decision that a judge has already made. Think about it.......

Austin Rhodes
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Austin Rhodes 12/21/11 - 08:26 am
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Federal Judge Randy Hall's

Federal Judge Randy Hall's decision in the Keeton vs. ASU case was courageous AND 100% correct.

augusta citizen
9948
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augusta citizen 12/21/11 - 08:34 am
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Riverman1 said, "I generally

Riverman1 said, "I generally appreciate Newt's ideas, but not this one. The Court works both ways." True, I'm surprised he even suggested this.

Riverman1
90449
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Riverman1 12/21/11 - 08:37 am
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Austin, good idea to use

Austin, good idea to use local examples, but that was an easy one to me. I don't know any judge who would have ruled in her favor. But what about local politicians having power over judges? Scott Dean anyone? I have a good idea some local politicians would have squashed his trial. He had friends.

Little Lamb
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Little Lamb 12/21/11 - 08:46 am
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ACES wrote: Indeed, when was

ACES wrote:

Indeed, when was the last time you saw a court ruling you thought was courageous? It doesn’t seem to happen much anymore; even the courts seem to put their fingers up to test the political winds these days, when the law might prescribe a different result.

Austin Rhodes responded:

Federal Judge Randy Hall's decision in the Keeton vs. ASU case was courageous .

Yes, there are some things that must not be said on a college campus. Criticism of the homosexual lifestyle is hate speech to the political correctness crowd, and we cannot allow hate speech on campus.

madgerman
236
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madgerman 12/21/11 - 08:56 am
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We have to get judges free
Unpublished

We have to get judges free from politics. So how do we get them on the bench?

madgerman
236
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madgerman 12/21/11 - 08:58 am
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I wonder what Newt thought
Unpublished

I wonder what Newt thought about the Supremes decision in the Florida hanging chad case? Remember that one, why the rush to justice?

Riverman1
90449
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Riverman1 12/21/11 - 09:00 am
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Madgerman, you get judges for

Madgerman, you get judges for the 9th Circuit on the bench by finding them at get-togethers hosted by William Ayers.

burninater
9799
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burninater 12/21/11 - 09:38 am
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Criticism of the homosexual

Criticism of the homosexual lifestyle is hate speech to the political correctness crowd, and we cannot allow hate speech on campus.
-----------
LL, you're not analyzing this situation properly. If Keeton were getting her masters in business, physical therapy, music, molecular biology, Chinese, physics, electrical engineering, theatre, political science, etc etc etc, her views would have been inconsequential to her major and to the campus. She made the mistake of choosing one of the only disciplines that REQUIRE its practitioners to treat clients' life decisions impartially, regardless of personal conviction. And even then, it wasn't her belief that caused her problems, it was her public statement that she would be unable to avoid projecting that belief onto clients, followed by her refusal to participate in any steps recommended by her department to try to mitigate the conflict with the professional requirements of the field.

Piperpig
9
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Piperpig 12/21/11 - 10:20 am
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Two long points: Little

Two long points:

Little Lamb, the college did not expel her because of her political views, but because of her stated intentions. Keeton was adamant about her disapproval of homosexuality and further stated that she would act on those beliefs in counseling her students. The psych department believed that her clearly stated intentions were inconsistent with the national guidelines and that the university risked losing its accreditation if it allowed her to graduate.

Should a college have the right to determine if one of its students is fit to graduate? Would a medical college have the right to expel a med student who disavowed conventional medicine in favor of holistic medicine? Could a military school expel a student who stated his refusal to comply with the chain of command? Would Augusta State have the right to expel a psychology student who stated his intention to counsel religious people to give up their faith?

Courts are faced with tough decisions everyday. These decisions are not easy. Every decision made by a court is a form of judicial activism. The 11th Circuit overturned Obamacare. That is a form of judicial activism. The Supreme Court overturned Chicago's ban on handguns and by doing so made the Second Amendment applicable to state laws. That was a clear violation of states' rights (and an example of judicial activism), yet most conservatives cheered it. When the Supreme Court upheld state power in Kelo, conservatives were upset that the Court did not side with the property owners. Yet, that decision was a powerful ruling for states' rights and represented the opposite of judicial activism.

burninater
9799
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burninater 12/21/11 - 10:38 am
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Burninator, it is you that's

Burninator, it is you that's not analyzing this properly. Keeton was just being honest. She was honest enough to confront her own doubts. Something we all must do, especially those who would council others. She simply had the courage to make public an inner struggle. Something the college and program would’ve grown from, if they embraced open debate of “touchy” subjects.
--------------
Young Fred, you're making the same error LL has. This simply was about professional requirements of behavior, not speech. Publicly expressing her views was not the issue. Indicating that she was unwilling to conduct her chosen profession in the manner required by licensing agencies BECAUSE of those views was the issue. Counselors are perfectly welcome to believe as Keeton does, and I'd wager many do. They are not, however, allowed to impose those views on clients, and the unwillingness to follow this job requirement was Keeton's problem.

It isn't a free speech issue if Starbucks fired me because I didn't think white people should drink coffee and acted accordingly. It's a job competence issue.

Little Lamb
47950
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Little Lamb 12/21/11 - 11:55 am
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What I remember, Fred, was

What I remember, Fred, was that the attorneys for ASU told the judge that Keeton's opinions were making other students on campus "uneasy." Therefore, she must be stopped.

burninater
9799
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burninater 12/21/11 - 12:09 pm
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(start quote) In his

(start quote)

In his decision, Judge Hall wrote that these facts made the issue not one of religious belief, but of specific curriculum-based decisions appropriately made by a faculty. "[T]he record suggests, and the testimony at the hearing bolsters, that the plan was imposed because plaintiff exhibited an inability to counsel in a professionally ethical manner -- that is, an inability to resist imposing her moral viewpoint on counselees -- in violation of the ACA Code of Ethics, which is part of the ASU counseling program's curriculum."

(end quote)

Read more: http://www.insidehighered.com/news/2010/08/23/psych#ixzz1hBpNBfOS
Inside Higher Ed

I don't know what the attorneys may or may not have presented in the course of arguing their case LL, but your conclusion about the reasoning behind the judge's decision is incorrect.

OJP
7493
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OJP 12/21/11 - 02:29 pm
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carcraft (and the

carcraft (and the ACES):

State constitutions and their amendments can most certainly be federally unconstitutional.

Were Georgia to amend its constitution to outlaw any and all gun ownership, I'd wager your faux confusion regarding federal constitutional supremacy would quickly vanish.

OJP

OJP
7493
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OJP 12/21/11 - 04:14 pm
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Young Fred: That was

Young Fred:

That was primarily directed at the ACES for this comment: "Some courts have even taken it upon themselves to determine whether constitutional amendments are 'constitutional.' Huh?"

There's no way any competent editorial staff is genuinely that ignorant of one of the fundamental principles of federalism and our government: the supremacy of the federal constitution.

But it applies to carcraft to a lesser extent. It's very basic civics that the federal constitution is the "supreme law of the land".

OJP

OJP
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OJP 12/21/11 - 04:18 pm
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So am I to believe that a

So am I to believe that a hypothetical President Gingrich would call for the arrest and/or impeachment of the Justices of the Supreme Court if they strike down the healthcare law?

"Conservative" ideology circa 2011 is so convoluted it is collapsing in on itself.

OJP

Little Lamb
47950
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Little Lamb 12/21/11 - 04:21 pm
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OJP — read Gingrich's

OJP — read Gingrich's statement carefully. He said it was within Congress's authority to create or eliminate judgeships. It is within Congress's authority to limit the jurisdiction of the Supreme Court. Not the president.

OJP
7493
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OJP 12/21/11 - 05:40 pm
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Little Lamb: Any legislation

Little Lamb:

Any legislation that includes a limitation on judicial review would need the President's signature.

And he does suggest impeaching judges for "bad" decisions in his white paper; but the Constitution clearly states that judges shall hold their offices during good behavior. Simply disagreeing with the President is not "bad behavior".

Legal experts and philosophers from all over the political spectrum are jumping on him for good reason: we can all imagine being the target of an overzealous Congress.

Would you want a hyper-paranoid Congress and President following a massive terrorist attack to legislate away the Bill of Rights and prevent the judiciary from reviewing that legislation?

The founding generation itself created the judiciary in 1789, and it has largely remained unchanged (minus changes accounting for growth).

Given the choice, I'd much rather have a robust judiciary which only sparingly oversteps its authority than a Congress that can legislate away the Constitution.

OJP

OJP
7493
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OJP 12/21/11 - 05:52 pm
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Little Lamb: And Gingrich's

Little Lamb:

And Gingrich's whole philosophy seems to be "Best 2 out of 3" (i.e., Courts + President beat Congress; Congress + Courts beat President; and President + Congress beat Courts.

So, since the Congress and the President already decided that the healthcare law is constitutional (by passing it into law), it appears that under Gingrich's model, it is immune from judicial review.

As would be every law signed by the President for that matter.

OJP

Bruno
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Bruno 12/21/11 - 07:19 pm
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I agree with the article and

I agree with the article and OJP. Gingrich's stance on this is not very well thought out.

freeradical
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freeradical 12/21/11 - 10:37 pm
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The thrust of Newt's point

The thrust of Newt's point had nothing to do with " getting rid "

of anybody.

The thrust was that requiring looney tune, soft -headed judges to take

full ownership in explaining soft-headed, outrageous & radical

decisions in a public setting outside the environment of their

warm , fuzzy little fiefdoms is 99.9 % effective in acting as a control

in curbing outrageous politically & personally driven decisions.

Period !

And he is right.

They lack the guts to publically explain the proclimations they issue

in the warm, fuzzy confines of their little fiefdoms as sound law.

The " the threatening of their jobs " had nothing to do with

their "rulings".

In fact according to Newt their willingness to explain their "rulings"

virtually garrantees that NOTHING further can be done to them,

and they will continue to be gainfully employed.

Their refusal to leave the warm fuzzy comfort of their personal fiefdoms

and to take public ownership by explanation is what would would

put their status as gainfully employed at risk.

The writer misses what Newt actually said , if I do say.

If a clearer example of the mechanism that was the thrust of Newt's

point in action was any closer it would have bitten said writer of this

story in their hairy behind:

" A powerful south Georgia judge will resign rather than
ANSWER damaging accusations that she abused her
authority ...and other Tyrannical behavior state officials
said tuesday.
Brunswick Superior Court Judge Amanda F. Williams
said in a letter to Gov. Nathan Deal that she would resign
Jan.2 " (Augusta chronicle 12/21/2011)

And Judge Hall's decision not to recuse himself due to his extended

involvement & Alumni status with one of the two parties involved

in the Keenan case showed abbhorrent ,sub-standard integrity as a

jurist .

Making himself nothing more than a functioning courtroom malignancy of the

party to which he had the prior involvment in this case.

And no one has the intellectual capacity to speak directly to this

specifically.

They don't dare.

freeradical
1144
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freeradical 12/21/11 - 10:31 pm
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Newt is right . His plan is a

Newt is right .

His plan is a judicial self-cleaning oven.

KSL
140136
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KSL 12/21/11 - 10:56 pm
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I read a complaint on this

I read a complaint on this site somewhere, don't recall exactly where, that Bush charged Secret Service personnel for rent of housing at his ranch. Like the dunce posting the comment doesn't realize that the Clintons do that as well in Westchester County, NY. They are doing it right now after Clinton is out of office. Ignorance abounds.

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