The Greatest Threat: Nuclear Terror or Activist Judges?

Jeff Johnson | July 7, 2008 | 8:31pm EDT
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( - Liberal judicial activism can be stopped through a three-tiered approach, according to a panel of experts who addressed the Conservative Political Action Conference (CPAC) Saturday.

The approach includes appointing more judicial conservatives to the federal bench, getting Congress to exercise the authority it currently has over the federal courts and amending the Constitution to prohibit judges from expanding or contracting the document's meaning, the conservatives argued.

U.S. Rep. Trent Franks (R-Ariz.) said he understands that many Americans are worried about the possibility that terrorists will obtain a weapon of mass destruction, but he warned that there is a greater threat.

Forgetting the truths on which the United States was founded, Franks said, has produced an equally frightening prospect, which he called "judicial tyranny." He noted that state and federal courts have ruled the Pledge of Allegiance unconstitutional, legalized same-sex "marriage," authorized governments to take private property solely to increase tax revenues, blocked parental control of sex education and protected online pornography all in recent months.

"And judicial tyranny's most horrifying scar on the soul of America is 45 million dead children," Franks said, referring the estimated number of abortions in the United States since the Supreme Court's Roe v. Wade decision legalizing the procedure in 1973.

"These are not the causes that our American heroes lying out in Arlington National Cemetery died for and it's time that those of us who still have breath said: 'Enough is enough!'" he said.

Tom Fitton, president of Judicial Watch, used a different name to describe the same problem: "judicial activism."

"A conservative may see judicial activism in a court that creates or expands a civil right, such as the recent same-sex 'marriage' ruling by the Massachusetts Supreme Judicial Court," Fitton explained. "A liberal may see an activist court as not activist at all, but as taking on the proper role of the judiciary as an interpreter of law for a society whose values change and evolve."

Fitton was quick to point out that he does not fall in the latter group.

"I think liberals who make that argument are being intellectually dishonest," he said. "Liberals will pretend there is no judicial activism rather than try to defend it."

To eliminate confusion, Fitton said conservatives need to be able to recognize the instances when a judge exceeds his or her lawful authority.

"If a judicial decision robs a legislative body of its powers ... if a decision upends longstanding precedent for no good reason ... if a court decision redefines the plain meaning of a law or the Constitution ... if a court decision sets public policy and gets into the nitty-gritty of government decision-making rather than simply interpreting the law, you've probably got judicial activism," Fitton explained.

"[And], if a judicial decision spends a lot of time citing laws and court decisions made in Belgium [or any other foreign country] you probably have judicial activism," he added.

Judicial activism, Fitton argued, is not that different from theft.

"Oftentimes, judicial activists' decisions rob citizens of the right to govern themselves and judicial activism can rob us of our liberty," Fitton expounded. "Judicial activism also robs the judiciary of the respect of citizens, for when judges act as politicians and make up the laws as they go along then they deserve no more respect than politicians."

Retired federal Judge Charles Pickering, whose nomination to the Fifth U.S. Circuit Court of Appeals was blocked by Democrats using a filibuster, said liberals accused him of being a judicial activist.

"During the debate of the Bush nominees, far left groups and senators with complete hypocrisy but, nevertheless, with some success, loudly proclaimed they were opposed to activist judges," Pickering said. The truth, he insisted, is that liberals are opposed to judges who are not activists.

"What they really want is activist liberal judges. What they really oppose are conservative judges who exercise restraint," the former judge said.

Sandra Froman, a Harvard Law School graduate and president of the National Rifle Association, said conservatives should support President Bush and any future chief executive who attempts to appoint conservative judges.

"We must put judicial conservatives on the bench," Froman said. "Note we're talking about 'judicial conservatives' here, not necessarily 'political conservatives.' We want judges who will interpret the law as it was written, not ignore the law or, worse yet make it up from the bench."

Pickering is taking that philosophy even further. He is proposing a constitutional amendment that would require federal judges to interpret laws based on the text of the Constitution and the common meanings of the words used in a law at the time it was adopted. His proposal would further forbid judges from taking any action that would, in any way, alter the original meaning of the Constitution, as amended.

"Only in the last 30 years have the liberals discovered that it's easier to change the Constitution by convincing five members of the Supreme Court rather than the old-fashioned way -- the amendment process -- where the people and the people's elected representatives are involved," Pickering explained.

"I assure you that the Constitution is going to change over time. The only question is will it be changed by judges or by the people."

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