Statements by certain Republican political leaders and commentators in recent days touting the importance of "judicial independence" may imperil the chances that Republicans will be able to resolve the problem of judicial activism over the next several years.

There is no dispute among political conservatives that judicial activism is a problem. The symptoms have been apparent for decades. Judges legislate from the bench proclaiming that prayers at school commencement ceremonies are unconstitutional while, at the same time, assert that certain types of child pornography are protected by the first amendment. These are just two examples of dozens of pernicious decisions rendered by the courts over the past 50 years or so, and carefully documented by such skilled attorneys and legal observers as Judge Robert H. Bork, Mark R. Levin, Pat Robertson, and Phyllis Schlafly,

The dispute among Republicans basically centers around how the problem should be resolved, and the quarrel seems to be getting rancorous. Some commentators and political leaders appear to embrace the view that the only acceptable solution to judicial activism is to appoint strict "originalist" judges whenever vacancies occur on the federal bench; to do otherwise, they believe, would be to violate the principle of "judicial independence." This seems to be the perspective of President George W. Bush and the popular syndicated columnist Charles Krauthammer. The problem with this approach, when used by itself, is that decades can pass before there's any desired change. Further, there is no guarantee that any appointed justice is going to turn out to be a "strict constructionist" or "originalist" when he takes his place on the bench of the U.S. Supreme Court. Democrats always relish the opportunity of repeating the fact that seven of the current nine Supreme Court justices were Republican appointees. As it turns out, all seven were nominated by presidents who wanted "originalist" justices, but only three of the seven turned out to be so. Judge Robert H. Bork, in his writings, suggests that there is a powerful force which seduces judges to abandon any propensity to exercise their duties in a manner consistent with an "originalist" philosophy, namely the desire to please the legal community, the media, and academia, who are essentially members of the same social class as the judges themselves, and who, by and large, have a tendency to be politically liberal.

Some conservative political leaders and columnists are looking around for other solutions to the judicial activism problem. It's likely that many of them have long since abandoned hope that the objective of appointing "originalist" justices and judges to the Supreme Court and to the various appellate courts is likely to be more successful in the future than it's been in past decades. There may also be a certain level of anxiety lest the Republicans lose control of the White House and one or both houses of Congress in future elections, thus limiting any window of opportunity for judiciary reform.

The various proposed solutions to dealing with judicial activism, which are intended to accompany the continued practice of making conservative judiciary appointments, basically fall into four different categories:

• imposing court procedures that make judicial activism more difficult,
• restricting the jurisdictions of federal courts to keep them from hearing cases involving religion, marriage, and other topics that most members of the public don't want the courts to adjudicate,
• disciplining judges that infringe on Congress' exclusive legislative authority, and
• establishing term limits for federal judges (this last would require a constitutional amendment).

Since the great stumbling block preventing political conservatives from reaching a consensus on the issue of judiciary reform seems to be "judicial independence," perhaps it would be worthwhile to briefly consider what limits, if any, this type of independence should have. First, I think that virtually everyone would agree that it would be highly inappropriate for a prominent public figure, or any one else for that matter, to privately contact a judge in order to solicit that judge to make a ruling favoring a specific party in a dispute being adjudicated by the court. Clearly, if a judge were to entertain such a request, it would destroy the legitimacy of the entire judicial process.

On the other hand, it seems of greatest importance that members of Congress and state legislatures should remain vigilant to the possibility that certain procedures in the judicial system may be defective with the result that some disputants in lawsuits fail to receive justice. Congress as the legislative branch of government should exercise its duty to ensure that any such defects in procedures are identified and remedied by legislation where needed.

Further, there may be no greater defect in the function of the federal judiciary in modern times than that it often infringes on Congress' exclusive legislative authority in our national government, thereby both undermining the integrity of Article 1, Section 1 of the United States Constitution and defrauding the American public of their right to a government that derives its authority from their consent.

Accordingly, judicial independence is appropriate when considered in the context of the outcomes of individual cases when it is clear that the procedures leading up to the outcome were free of defects that might otherwise have resulted in an unjust ruling. However, when certain defects in a procedure are clearly evident, the concept of judicial independence should not be used as a means to prevent the remedying of such defects by legislation.

Copyright by Andrew W. Pollock III

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