Judicial Imperialism

Three times in recent political history state courts have captured national attention by grossly overstepping their proper bounds.  Each time a Republican governor huffed, puffed and ultimately did nothing of consequence.  We are watching the steady erosion of government by the consent of the governed and the rise of an imperial judiciary.

Twice the passive Republican governor was named Bush.  On the other occasion he was a Romney.  The great Republican dynasties evidently haven't retained enough vitality to bear the considerable burdens of executive responsibility.  Their scions should stick to the U.S. Senate, the natural home for flaccid gasbags of both parties. 

What became of the Republican Party's commitment to republican government?  Are the princes of the GOP in charge of the Massachusetts and Florida executives really stupid enough to believe that they work for the judiciary or are they just too cowardly to do the hard job they were elected to do?

Jeb Bush has indicated that he won't defy the web of court orders that mandates Terri Schiavo's death because he lacks the authority to do so.  This is either idiotic or dishonest.  Either way it is appalling.  Jeb isn't subordinate to the courts and he cannot both do his duty and passively accept the judiciary's view of his authority. 

This is the same Jeb Bush who could have resolved the entire Florida 2000 fracas simply by announcing immediately after the statutory recount that the election was over, the result was certified and that, regardless of any court order, the certified result would not be changed.  All subsequent recounts and court proceedings would then have been moot.  As a matter of abstract constitutional principle this would have been the best possible outcome.  When the courts run amok it is the executive that must bring them back in contact with reality. 

I can forgive Jeb for failing to do his duty in the election contest.  His blood ties to the victorious candidate gave him a conflict of interest that was, at a minimum, embarrassing.

In the Terri Schiavo case his passivity is despicable.  He professes to believe action is justified and his power to act is absolutely clear.  He is cowering at the prospect of doing something solely because action would put him in conflict with some pissant judge in Pinellas County.  That is beneath contempt. 

The courts made a hash of Terri's case.  Hash is the principle output of the judicial process; the law truly is an ass.  But primary responsibility for the horror show now unfolding doesn't lie with the courts.  It lies with the man who has the power to cut through all the judicial foolishness, but not the courage.  Someday, in the infernal regions, Jeb Bush and Pontius Pilate will co-host a fascinating panel discussion on the moral implications of spinelessness.  The rest of us can only hope, in all humility, that we won't be in the audience. 

As for Mitt Romney -- what can we say about a man who is ordered to issue marriage licenses to same-sex couples on the laughable ground that there is no rational basis for confining marriage to sexually complimentary couples, and who meekly complies?  Does Romney's vocabulary lack the word "no?" 

Marriage licenses are issued under executive authority.  The people who issue them in Massachusetts work for Mitt.  All Romney had to do when the Massachusetts Supreme Judicial Court held that the state was bound to sanction oxymoronic "homosexual marriages" was to announce that the court was wrong and the executive branch would not comply with its absurd order.  If any functionary tried to obey the court rather than the governor, Mitt could have taken administrative action to have that functionary tossed out into the street with revocation of pension benefits. 

What exactly could the courts have done?  Issued injunctions?  Ignore them.  Entered judgments for damages?  Refuse to pay them.  When the courts deliberately distort constitutional law to bolster their own power they should be ignored.  Make them come to terms with their own impotence.  Obeying them only fans the flames of their megalomania. 

A governor cannot be true to his oath of office if he slavishly accepts even the most fraudulent judicial pronouncement about what that oath requires.  Promising to uphold the law is very different from promising to obey every crackpot edict that can attract a majority on a court packed with fools. 

If you know anything at all about American constitutional law you understand that governors and presidents have to determine for themselves what the constitution and laws require of them, regardless of what any court may say.  All of our most revered leaders have recognized this and talked about it, including, among others, Jefferson, Lincoln, Franklin Roosevelt and Ronald Reagan.

How has the Republican Party's aristocracy so completely lost sight of the simplest, most basic constitutional principles?  If Republicans won't oppose the ridiculous imperial pretensions of the judiciary who will?

I wish I knew.

Comments

[Luciferous]

The challenge of judicial tyrany makes establishment figures' blood run cold. I remember when First Things published a significant (prescient) discussion of judicial overreach in 1997, or so. It evoked a thunderous response, to include board resignations, angry denunciations, and general charges of extremist delusion. My, how times change. Some of the original reactionaries have since come around. And the evidence cited by FT to make its case has been bolstered by subsiquent judicial usurpation in regards "gay marriage", executive powers to conduct war, death penalty criteria, to name just a few obvious outrages.

Robert Bork, who participated in the FT discussion, believes there is no turning back. The judiciary has the bit in its teeth. It has taken the measure of its opponents in the legislature and executive, and is impelled by willfulness defined by legal positivism to do as it wishes. It knows it is largely insulated from the popular will, that its actions are virtually undetected, let alone understood, by the broad swath of the electorate, and its allies in the media will run interference for them.

[nicholas martin]

Mr. Mulherns !

This article is so well written, I have nothing of substance to add to it.

Please, Mr. Mulhern, try to contact Jeb Bush, AND TELL HIM THIS, what you wrote above.

OK. I am being naive, of course. Some staff member will pick up the phone, or read the e-mail if you chose to write to him by e-mail. Regular mail is too slow, however, I would send a copy of this by regular mail anyway.

Nevertheless, one of his staff will read it. Perhaps ( and almost certainly ) it will be ignored. But, at least you have done something. You know the saying: " Dixi et animam meam salvavi !"

You are referring to that place down below and express your hope that we will not be in the audience. That we do not know, but I feel that if you try your best, by perhaps childishly HUMILIATING yourself by trying to contact Mr. Jeb Bush, your chances of ending up in the audience down below will be reduced.

I do not know the law, am still basically new to this country, etc. I did my PATHETIC little act of help : I prayed for Terri ( I am sure you did too ), sent them 10 dollars, no more because I am dirt poor, and I signed some kind of an on line petition addressed to Jeb Bush. The petition of course was a request for help, action, whatever. I did not even read it all the way through.

Maybe you can do a little more. It might be worth a try. I imagine you have more weight, more clout than I do.

[Dan M]

Terri is a casualty of the Culture Wars.

We have, and have had casualties in genuine shooting wars. But there have been casualties in our domestic cultural battles as well.

The Judiciary is naturally gathering power to itself. This accumulation is injurious to the Country, but not unexpected, nor unforseen.

Peter suggests a Constitutional shootout over this issue. I disagree. Not because I object to the idea of a high stakes duel between the Judiciary and the other branches, but because this issue is not propitious enough. The ground I would suggest waging such a clash on are:

1} Immigration, {or as Michelle Malkin describes it, Invasion};

2} Sovereignty, {US vis-a-vis the UN}; and

3} The treatment of foreign terrorists.

The Schiavo battle is complex, draws Conservatives into the drama of a dispute between family and a "husband," and involves issues of Federalism.

[TomC]

We lost, she's gone.