Another Misguided Group

6--13--1998

A new group, Citizens for an Independent Courts, with major sponsorship from the liberal Century Foundation and consisting of such figures as former N.Y. governor Mario Cuomo and former senator Alan Simpson of Wyoming, announced its formation on June 6th, 1998, at a Washington press conference.

This is another misguided group whose platitudes fail to grapple with the realities of the legal system and the actual meaning of the Constitution. The group appears to be, as they claimed, fairly non-partisan. But their stated aim of trying to eliminate "politics" from the judiciary simply ignores reality and mislabels the motivations behind movements to control the run-away courts (including the high court).

Baldly overlooking, as usual, the false premise originally promoted by the John Marshall court in 1804 with "Marbury vs. Madison" - the first major court-led maiming of the Constitution - this new group seems to feel that the "independence" of the courts is being threatened. Never mind that federal justices are appointed for life, not elected by the voice of the people, and nearly impossible to topple - this organization feels that there is a danger of challenge to the "supreme" powers of the courts. (If only it were so...)

In fact the real and major problem is that when the justices issue rulings and edicts that are unconstitutional, there has been no effective effort to correct them!

In their press conference, the group picked on the honorable John Bork, who wrote a book suggesting that a constitutional amendment is needed which would allow Congress to override uncontitutional, ridiculous, and destructive decisions of the Supreme Court by some sufficient majority vote - actually quite a good idea. However, the new group considers this a challenge to the "independence" of the judicial system. Readers should really interpret the group's intent as actually attempting to preserve the imperial, nearly unassailable status which the federal judiciary actually enjoys. Input from the ABA and from justices was quoted expressing some real or imagined fears, but that was merely quoting the foxes regarding the posting of a guard at the henhouse!

To suggest that the courts should be totally unreachable and secure from any pressures, political or otherwise, beyond the current impeachment threat, which the great Thomas Jefferson referred to as a "paper scarecrow," is absurd and can only ultimately lead to more judicial anarchy. And that in turn threatens disruption of peaceful processes in a democratic republic.

The Founding Fathers intended the judicial branch to be the weakest of the three created by the Constitutuion. No one who has studied them or who applies the slightest logic to the struggle they had over balance in the total system, including even the branches of congress, could pretend for even a minute that it was the intendion of the framers to place the ultimate constitutional power in the hands of 9 un-elected lawyers! And yet that is what has happened - by the manifest illogic of self-declaration by the supreme judicial rulers themselves. Thanks to such aberrations as Miranda, the Exclusionary Rule,, and usurpation of legislative functions (through "judicial legislation") by the power-seeking and legally-intemperate judiciary, major changes are not only called for but long overdue.

The problem with independence and federal justices is that they already have entirely too much of it. Judges and the ABA have always used the word "independent" when they really mean "unaccountable." At the press conference the word "accountable" was used, but the very formation of this group belies the loosest interpretation of the word. Their expressed efforts will be to counter it totally.

The CRJ, other groups, and all sensible citizens do indeed challenge the runaway power of the courts, and intend to persevere for real and effective changes. In doing so, all will need to see through the misguided sophistry of groups such as this one.