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Judge H. Lee Sarokin

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Republican Candidates Want the Federal Judiciary to Be More Like American Idol

Posted: 10/24/11 06:44 PM ET

The New York Times reports that Republican candidates for the presidency want to eliminate certain cases from the court's docket (like same-sex marriage), impose term limits for judges, give Congress the power to overrule the Supreme Court, abolish the Ninth Circuit Court of Appeals and cut judicial budgets -- all this in the name of ending "judicial activism". Judicial activism is in the eye of the beholder. In reality, it simply means a decision with which one does not agree. I seriously doubt that the Supreme Court's decisions regarding corporate moneys in elections, individual gun rights or the outcome of the Bush/Gore election are examples the candidates would cite of judicial activism.

The greatest single guarantee of judicial independence is life tenure. Proponents of term limits are not without justifiable support, but it is difficult to see how term limits would eliminate the much feared and reviled "judicial activism". It would replace judges both with whom we agree and disagree. The Republicans keep insisting that judges must be held accountable; that somehow public opinion should influence outcomes. Nothing could be more inaccurate or contrary to constitutional principles, and nothing could be more dangerous than having Congress become a Super-Supreme Court as some have proposed.

Newt Gingrich claims that "judicial supremacy" is factually and morally wrong and "an affront to the American system of self-government". Since Marbury v. Madison in 1803, the law of the land has been that the courts determine what is or is not constitutional. If not the courts, who else? Can you imagine leaving those critical decisions to Congress -- like this Congress! And remember, it is these same Republicans who require judicial nominees to take a blood oath that they will follow precedent! Apparently Marbury is not on Mr. Gingrich's list. Mr. Gingrich also suggests that if we cannot rid ourselves of these liberal judges, we should either punish them or extort their compliance by cutting their funds -- your democracy at work. He suggests shutting their electricity so that they cannot function. Now there is a platform plank for a presidential candidate that should inspire us all.

Among the most ridiculous suggestions, Rick Santorum recommends abolishing an entire circuit court (the 9th) because he disagrees with its rulings. If disagreeing with how a branch of the government was conducting itself were the criteria, we would certainly abolish Congress. Removing judges or entire circuits because some or even a majority do not like or agree with their decisions violates the Constitution and the separation of powers. We cannot have a country in which the president or Congress can overrule the unpopular decisions of the judiciary or fire the judges who render them.

Court decisions need not be and frequently are not popular. Many would be disapproved by the public if submitted to a vote. Decisions conferring rights on criminal defendants are often unpopular. Integration of schools might not have passed a plebiscite. Courts are not the same as American Idol. The public does not vote on decisions. One of the roles of the Constitution, and in turn the courts, is to protect the minority from the oppression of the majority. The judicial branch is the last bastion of freedom in this country. The repeated attempts to politicize it demean it in the eyes of the public.