What Do We Do About Activist Judges?

[galenrox]

Here it is. It says that all states have to abide by Federal laws. We may be talking symantics here.

From Article VI:
"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."
Well, I know a tad about the legal system considering my entire family is in it. I train law school students actually in welfare management (my speciality in law) and work for a law firm where I have to do legal research. So I know a tad about it. We do have a lot of law and that is why we have judges to interpret all the law and come up with the appropriate sentence.
Trust me, I hate the ranting as I have a family member who is a Federal judge. I think it is a dangerous precedent, and even the person who lost her family basically said that the politicians were partly to blame for creating a society that hates judges through rhetoric.

I wasn't saying you didn't know about law, you clearly know quite a bit more than I do. I just don't like all of the criticism, I think it's dangerous, and I'm a conservative when it comes to states rights.

 

[ShamMol]

I wasn't saying you didn't know about law, you clearly know quite a bit more than I do. I just don't like all of the criticism, I think it's dangerous, and I'm a conservative when it comes to states rights.

Well, thank you. But the Supremecy (sp?) clause of Constitution does make it so that state law is trumped by Federal. Period. If there is a dispute of laws, federal always wins. It is like david vs. goliath, except david can't find any rocks.

 

[galenrox]

Well, thank you. But the Supremecy (sp?) clause of Constitution does make it so that state law is trumped by Federal. Period. If there is a dispute of laws, federal always wins. It is like david vs. goliath, except david can't find any rocks.

lol, that's a quality analogy.

 

[Dezaad]

Yes, the Florida Supreme Court is allowed to interpret what Florida law is supposed to mean, but not the U.S. Supreme Court.

Wrong. The Supreme court has the right to review any state's law considering that Federal Law trumps state law.

WRONG... At least if you think that Federal law trumping state law allows the Federal courts to interpret state laws. Interpretating a law is far different than reviewing it to determine if it is conflict with other laws.

I restate again, the U.S. Supreme Court is not permitted to interpret state laws. I did not say or imply that the U.S. Supreme Court can't review state laws to determine if they are in conflict with Federal law. They can invalidate state law on that basis.

The Federal Appellate courts would tell an appellant to get lost if said appellant wanted them to review a state court's interpretation of a state law. All Federal Courts, including the U.S. Supreme Court would refuse to hear the case, based on lack of jurisdiction. But, the Federal Appellate court WOULD take the case if the appellant brought up some Federal issue, such as whether the state law passes U.S. Constitutional muster.

Thus, the U.S. Supreme Court is out of its jurisdiction if it wants to examine a case involving Florida law to determine if the Supreme Court of Florida had interpreted that law correctly. It will not take the case. However, if the same Florida law is claimed to be in conflict with the U.S. Constitution, the U.S. Supreme court can (and may or may not) choose to hear the case.

Not really, they are deviating from the precedent, but there are usually reasons for this. See, almost every single case is different and with those differences are born different decisions because of what happened in the case. That can most clearly be seen in these past two rulings about the Ten Commandmetns.

The times where there are reasons for deviating from precedent are not really times where they are deviating from precedent. Those times are usually referred to as "clarifications". To clear up questions that start with the words, "But, what if I ... ?"

But, I think I didn't make my point clear. My point was that, If activism is rewriting (through interpretation) established laws, and common law is part of established law, and stare decisis is part of our common law, then it could be said that deviation from precedent would be judicial activism. The implication is that if liberal judges are judicial activists because they interpret the Constitution in the Living Constitution tradition, then conservative judges will be judicial activists when they violate stare decisis.

 

[teacher]

Re the RE: Send them to France.

 

[ShamMol]

WRONG... At least if you think that Federal law trumping state law allows the Federal courts to interpret state laws. Interpretating a law is far different than reviewing it to determine if it is conflict with other laws.

Symantics. It trumps state law which allows the high court to review cases that need to be cleared up.

I restate again, the U.S. Supreme Court is not permitted to interpret state laws. I did not say or imply that the U.S. Supreme Court can't review state laws to determine if they are in conflict with Federal law. They can invalidate state law on that basis. The Federal Appellate courts would tell an appellant to get lost if said appellant wanted them to review a state court's interpretation of a state law. All Federal Courts, including the U.S. Supreme Court would refuse to hear the case, based on lack of jurisdiction. But, the Federal Appellate court WOULD take the case if the appellant brought up some Federal issue, such as whether the state law passes U.S. Constitutional muster.

Interpret-they apply federal law to determine if state law is unconstitutional. I guess we mean the same thing, we just use different vocabulary. That is what I meant. Sorry for the confusion.

Thus, the U.S. Supreme Court is out of its jurisdiction if it wants to examine a case involving Florida law to determine if the Supreme Court of Florida had interpreted that law correctly. It will not take the case. However, if the same Florida law is claimed to be in conflict with the U.S. Constitution, the U.S. Supreme court can (and may or may not) choose to hear the case.

However it does the exact opposite every once and a while, such as the Bush/Gore case. But again, that may just be interpretation.

The times where there are reasons for deviating from precedent are not really times where they are deviating from precedent. Those times are usually referred to as "clarifications". To clear up questions that start with the words, "But, what if I ... ?"

I agree. But, I state it as if cases are different enough to warrant a clarification. If they can have case law applied, but yet are different enough, then it could come out with a different ruling than the previous case.

But, I think I didn't make my point clear. My point was that, If activism is rewriting (through interpretation) established laws, and common law is part of established law, and stare decisis is part of our common law, then it could be said that deviation from precedent would be judicial activism. The implication is that if liberal judges are judicial activists because they interpret the Constitution in the Living Constitution tradition, then conservative judges will be judicial activists when they violate stare decisis.

That is what many people say, that deviation is judicial activism. That is plain wrong. Ditto for when the case law is there and you say founders intent. That is plain wrong. There is a fine line to be walked and a lot of judges do a great job, and some judges do not (conservative and liberal). And you made your point clear, I read you loud and clear (at least I hope I do...you seem to have a bit more experience with this than I do).

 

[JOHNYJ]

It use to be that Activist Judge was a liberal judge who.Destroyed some American tradition for no real reason. Or was anti God. The Terry schiavo case proved its just a judge one side or another doesnt agree with.
The presiding Judge in the Schiavo case was a southern baptist ,Republican, who became an " activist Judge " .Because he followed the law and the fanatics that were down there didn't like it.

 

[galenrox]

It use to be that Activist Judge was a liberal judge who.Destroyed some American tradition for no real reason. Or was anti God. The Terry schiavo case proved its just a judge one side or another doesnt agree with.
The presiding Judge in the Schiavo case was a southern baptist ,Republican, who became an " activist Judge " .Because he followed the law and the fanatics that were down there didn't like it.

basically, although I don't like your interpretation that being pro-separation of church and state as being anti-God, because that couldn't be further from the truth.

 

[Nemo]

No doubt the federal courts would find the "liberal judge" appellation amusing. One would be hard-pressed to find a more conservative group of people than the judges appointed to the federal bench. Circuit Judge Stanley E. Birch, Jr., who wrote the special concurring opinion to the en banc decision of the Eleventh Circuit Court of Appeals decision in the Schiavo case, specifically addressed the issue of the "activist judge," and rather sharply criticized the Congress for attempting to interfere with the judiciary, which opinion you will find interesting reading.

By the bye, Judge Birch was appointed by former President George H.W. Bush.

 

[Nemo]

No doubt the federal courts would find the "liberal judge" appellation amusing. One would be hard-pressed to find a more conservative group of people than the judges appointed to the federal bench. Circuit Judge Stanley E. Birch, Jr., who wrote the special concurring opinion to the en banc decision of the Eleventh Circuit Court of Appeals decision in the Schiavo case, specifically addressed the issue of the "activist judge," and rather sharply criticized the Congress for attempting to interfere with the judiciary, which opinion makes for interesting reading.

By the bye, Judge Birch was appointed by former President George H.W. Bush.

 

[ShamMol]

^Bingo, and I have been trying to point out that of the judges currently sitting on the bench, 75% of them were appointed by Republicans. This means that they are moderate to conservative. And with the Presidents that we have had from the Repubs lately, it means that the majority of those are conservative. This is more true in the district courts than the appellate courts because they are more easily confirmed there.

 

[icantoofly]

Actually, it was Florida's Supreme Court who ignored Florida's state laws, and the Supreme Court who remedied this error. I think you're right that that case was an example of judicial activism. If it had been decided properly, it would have been 9-0 in favor of ending the recounts.

THE FIRST AGENDA: SECURE THE RULE OF LAW

The Rule of Law will not be secured if the Senate continues to fail to stop filibusters and holds of the President’s Federal Judge nominations. If the Senate is incapable of securing the Rule of Law, what else have they to offer? Sure, Congress might get a rectifying law or two passed, but even if they do, the current herd of unlawful, legislating federal judges will change such laws to fit their own specifications. Republican and Democrat members of the Senate say they can change things if more of their party are elected. Why should any one believe that? Why should anyone believe that new Senators if elected will be any less pusillanimous than current Senators? But if current Senators exhibit the courage to commit to the first agenda and work to accomplish this agenda before the next Congressional elections, they will be more credible candidates in these elections. Otherwise, how many voters will care whether Republicans or Democrats are elected or not? I know I won’t!

 

[Fantasea]

THE FIRST AGENDA: SECURE THE RULE OF LAW

The Rule of Law will not be secured if the Senate continues to fail to stop filibusters and holds of the President’s Federal Judge nominations. If the Senate is incapable of securing the Rule of Law, what else have they to offer? Sure, Congress might get a rectifying law or two passed, but even if they do, the current herd of unlawful, legislating federal judges will change such laws to fit their own specifications. Republican and Democrat members of the Senate say they can change things if more of their party are elected. Why should any one believe that? Why should anyone believe that new Senators if elected will be any less pusillanimous than current Senators? But if current Senators exhibit the courage to commit to the first agenda and work to accomplish this agenda before the next Congressional elections, they will be more credible candidates in these elections. Otherwise, how many voters will care whether Republicans or Democrats are elected or not? I know I won’t!

This sounds like an excellent argument for term limitting senators and representatives. I like the idea of twelve years maximum for each.

 

[icantoofly]

This sounds like an excellent argument for term limitting senators and representatives. I like the idea of twelve years maximum for each.

I too like 12 year term limits.

I suggest we add: the 12 year limit is to be applied overa candidate's lifetime. In otherwords, whether the individual terms (e.g., 2 years for Representatives, 6 years for Senators) occur consecutively or not, the total years these folks may serve shall be no more than 12 years.

Also, I think the following should also be amended.

[bold face and underline added]

The Constitution of the United States of America
Effective as of March 4, 1789

Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

I propose that the the last paragraph be amended by adding the following:

A majority of the state legislatures shall be permitted to call and hold a national public referendum to judge whether or not one or more of the before mentioned elected or appointed, state or federal governent public servants, has violated this their constitutionally required oath of office.

 

[ALiberalModerate]

You right wingers act like there are not activist judges on the right. When in fact, there are just as many.

If you want to do something about activist judges, appoint centrists instead of conservatives or liberals to the bench.

 

[Fantasea]

I too like 12 year term limits.

I suggest we add: the 12 year limit is to be applied overa candidate's lifetime. In otherwords, whether the individual terms (e.g., 2 years for Representatives, 6 years for Senators) occur consecutively or not, the total years these folks may serve shall be no more than 12 years.

Also, I think the following should also be amended.

[bold face and underline added]


I propose that the the last paragraph be amended by adding the following:

A majority of the state legislatures shall be permitted to call and hold a national public referendum to judge whether or not one or more of the before mentioned elected or appointed, state or federal governent public servants, has violated this their constitutionally required oath of office.

For both of us, that's wishful thinking. Most of these hogs, feeding at the public trough, are in it for life, or as close to that as they can get.

The Representatives, with the two year term, are in a constant fund raising and campaign mode. With the gerrymandered election districts, the reelection rate of incumbents is about 90%. Bad news.

 

[icantoofly]

You right wingers act like there are not activist judges on the right. When in fact, there are just as many.

If you want to do something about activist judges, appoint centrists instead of conservatives or liberals to the bench.

You have me at a definite disadvantage here. Months ago I decided I don'tknow the difference between right wingers or left wingers, conservatives or liberals, moderates or centrists, or even the differences among any of the preceding three pairs. You can help e a lot if you provide me your definitions. I'm desperate enough to accept any one's definitions as long as they are unambiguous.

Also please tell me the label most applicable to me. It is my plea that the Constitution as amended be interpreted in strict conformity with the interpretation given it by those who adopted the Constitution and each of its 27 amendments.

I treat the 18th and 21st Amendments as the simplist to interpret, since the 21st repeals the 18th (I think it would have been better if both were never adopted).

The reason for my plea is not because I think the Constitution should not be changed in future in strict accord with its Article V. The reason for my plea is my conviction that to do otherwise corrupts not only the "supreme Law of the Land," (rendering such phrase vacuous and an oxymoron), but also it corrupts the viability of our free republic and the heritage we all shall bequeath to our grandchildren.

 

[icantoofly]

You right wingers act like there are not activist judges on the right. When in fact, there are just as many.

If you want to do something about activist judges, appoint centrists instead of conservatives or liberals to the bench.

For a long time now, I have been confused about the meanings of the labels: rightwing, leftwing, conservative, liberal, moderate, and centrist. Help me out here. Please give me your definitions. I'm desperate enough to accept any one's unambiguous definitions.

After you do that, please tell me which label you think applies to me.

It is my plea that our constitution and each of its 27 amendments be interpreted in strict conformity with their interpretations made at the time they were adopted by those who adopted them.

I make this plea not because I am opposed to our Constitution being amended in future in strict accord with its Article V. I make this plea because I am convinced that to do otherwise corrupts our "supreme Law of the Land" -- rendering that phrase vacuous and an oxymoron -- but also because it corrupts the viability of our free republic and what we shall all bequeath to our grandchildren.

 

[icantoofly]

For both of us, that's wishful thinking. Most of these hogs, feeding at the public trough, are in it for life, or as close to that as they can get.

The Representatives, with the two year term, are in a constant fund raising and campaign mode. With the gerrymandered election districts, the reelection rate of incumbents is about 90%. Bad news.

Yes, it's a tough problem to solve. But wishful -- and some creative -- thinking is a prerequisite to coming up with a practical way to solve this problem. In this same spirit, I am inspired by Yogi Berra's old observation: "It ain't over 'til it's over." That is, the ability to solve this problem "ain't over 'til it's over."

 

[Fantasea]

Originally Posted by Fantasea
For both of us, that's wishful thinking. Most of these hogs, feeding at the public trough, are in it for life, or as close to that as they can get.

The Representatives, with the two year term, are in a constant fund raising and campaign mode. With the gerrymandered election districts, the reelection rate of incumbents is about 90%. Bad news.

Yes, it's a tough problem to solve. But wishful -- and some creative -- thinking is a prerequisite to coming up with a practical way to solve this problem. In this same spirit, I am inspired by Yogi Berra's old observation: "It ain't over 'til it's over." That is, the ability to solve this problem "ain't over 'til it's over."

The chief stumbling block is this; the only way to have term limits is for the Congress to enact the enabling legislation. This requires half plus one of the five hundred thirty-five incumbents to commit an act of political, financial, and egotistical suicide. Somehow, I can't see this happening. Can you?

However, they did manage to term-limit the president, didn't they?

 

[icantoofly]

The chief stumbling block is this; the only way to have term limits is for the Congress to enact the enabling legislation. This requires half plus one of the five hundred thirty-five incumbents to commit an act of political, financial, and egotistical suicide. Somehow, I can't see this happening. Can you?

However, they did manage to term-limit the president, didn't they?

It's truly a formidable problem. However, your statement about the adoption of term-limits for the president gave me an idea. In the president's case they were limiting the term of someone other than themselves.

Ok, let's organize to encourage Congress to maximize their retirement income after 12 years of service and have it decrease rapidly each year thereafter. Next let's encourage all those planning/announcing their retirement to vote to limit to 12 years the terms of those not retiring.

What do you think?