Tuesday, August 16, 2005

Judical Abuse

Libercontrarian brings us a story of an Ohio judge who has ordered the incarceration of a critical blogger for "intimidation."

If the allegations are true, this is a real head shaker. In fairness, I have seen people make claims like this before, and they were simply crazy. But even in those cases, no one jailed and denied people their phone call, visitors or access to the outside world prior to a conviction.

In general, though, I have seen a lot of speeches by judges recently whining about how they feel intimidated by the criticism they are taking. Why, Justice Breyer recently claimed ruling on "tough subjects" like gay rights and the death penalty have left the court vulnerable to political attacks that threaten judicial independence. Really? I don't see any evidence of the judiciary being afraid of taking any social issue and finding the power to substitute its public policy decisions for the legislature's.

Statements like this explaint the source of the problem: "There's nothing that's not on the table," former Solicitor General Theodore Olson said of the court's work, which this fall includes issues like abortion, capital punishment and assisted suicide.

While the filing of a lawsuit makes any issue subject to a judicial decision, the problem with the Courts is that it accepts the claim that the substantive outcome of all public policy issues are somehow implicated by the Constitution. They simply aren't.

Abortion is before the Court because the Court made it that way. The Constitution didn't. Capital punishment should only be before the Court on due process issues. There is nothing in the Constitution to suggest otherwise. And assisted suicide? That is a legislative function if ever I heard one. The Court shouldn't be promoting or denying it -- the Court should only enforce the process. So long as due process and the long standing common law fundamental right to control one's own health care is built in to the system, the Court needs to say, on occassion, "No thanks. You guys have other methods of getting a remedy."

In the irony statement of the article: Breyer said the nine-member court is focused on constitutional limits on major fights of the day. "We're sort of at the outer bounds. And we can't control politics of it, and I don't think you want us to try to control politics of it," he said.

The Court has been controlling the politics of it. If abortion is a fundamental right, that does not explain why the Court need inject itself into every single abortion regulation. At some point, even fundamental health care rights are simply health care. How did the unstated right of abortion become extended outside of parental control? Even free speech rights are subject to parental control, and it is the most protected right in the Constituion.

This confrerence was part of the ABA, an institution to which I belong. I must admit, though, that I grow tired of its political posturing as well. New group President Michael Greco of Boston said judges have faced physical threats, and threats of impeachment from Washington political leaders unhappy with court decisions.

True. The former is unforgiveable and should be prosecuted. The latter is a procedure outlined in the Constitution is a part of the checks and balances intended by the Founders. If the Judge has not remained true to his duty, then impeachment should be on the table.

"If we do not protect our courts, our courts cannot protect us," Greco said. Right he is. But our Courts must allow us to protect ourselves, and must be willing to honor the entire political process -- all three branches. The Courts cannot enforce a single ruling without an Executive branch to send in the cops. The Courts cannot here a single case without a Legislative brach to fund the Court and grant the jurisdiction. It is high time that the Court kept its business "judicial."

Over time, the judiciary has built its political house of glass. It is not immune from criticism. Get over it judges. The more political you get, the more political the process and criticism will become.


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