Senator Charles Schumer has more than a hundred questions he’d like answered by John Roberts,  President Bush’s nominee to the Supreme Court. Well, the Senator from New York may be interested to know that he’s not the only person with questions. The great majority of Americans have a ton of questions about judges and judicial philosophy they wish to pose to Democrats, including Mr. Schumer and New York’s junior Senator, Hillary Clinton. Here are a few, all directed at leaders of the Democratic Party.

Senator Patrick Leahy of Vermont complains that “We have right now the most activist Supreme Court I've seen in my lifetime,” adding that he will ask Mr. Roberts whether he will become “part of that same activist coalition.” Senator Ben Nelson of Nebraska, too, speaks of judicial activism, stating that he “would have problems with” and “could end up voting against” a person who will be “an activist judge.” Senator Mark Pryor of Arkansas does the same, expressing concern about “judicial activists” who will “replace the Congress through their decisions.”

• Will the many Democrats who use the term “activist judge” as a pejorative and as a disqualifier for one who seeks a seat on the Supreme Court urge the Democratic Party to formally condemn the notion of judicial activism as undemocratic?

• Whatever the decision of their party, will those same Democrats condemn the judicial activism introduced and practiced generally by the Warren Court and specifically by judges such as Earl Warren, William J. Brennan, Jr., William O. Douglas, and their judicial heirs, including members of today’s Court?

Senator Pryor is entirely correct in asserting that judicial activists “replace the Congress [and other legislatures] through their decisions.” Indeed, the Senator echoes the explicit warning given to Americans in 1796 when Washington urged each department of government to scrupulously keep within its own sphere, never seeking to change the Constitution or other laws by usurping power from the other departments: “But let there be no change [in law] by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

• Will Democrat leaders join Republicans, Independents, Libertarians, and ordinary citizen Democrats in condemning Liberal Activist judges, who for half a century have mocked Washington’s contention that legitimate laws are created only “by an explicit and authentic act of the whole people” and Jefferson’s notion “that the will of the majority honestly expressed should give law”?

Each time activist judges “expansively interpret” the Constitution as a “living document,” they erode the principle of Federalism, which requires that powers which the Constitution does not grant to the Federal government be reserved to the states.

• Will Democrats admit that by usurping powers left to the states, Liberal Activist judges have been the nation’s greatest opponents of choice as they have imposed their will upon every citizen of every state?

• Will Democrats admit that judges who exercise judicial restraint and assert the integrity of the Constitution’s language have been the nation’s greatest proponents of choice, allowing the people of the individual states to make decisions for themselves, a right guaranteed them by the constitutional principle of Federalism? 

For decades Americans have scratched their heads, kicked the ground, and uttered oaths as they have reacted to yet another dictatorial decision issued by Liberal Activist judges who divine rights from a “living, growing” Constitution which alternately “lives” and “grows” according to laws passed by a majority of the states, despite laws passed by a majority of states; according to American tradition, despite American tradition; according to laws and judicial decisions of other nations, despite laws and judicial decisions of other nations.

• Will Democrats admit that the arbitrary (and thus dictatorial) nature by which Liberal Activist judges give “life” to the Constitution makes those judges far more destructive of democracy than one man’s placing himself above the law, the consequences of which Felix Frankfurter warned when he wrote, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”

• Will Democrats admit to the profound notions regarding constitutional democracy implicit in Oliver Wendell Holmes’ humorously figurative statement about the role of judges: “If my fellow citizens want to go to hell, I will help them; it’s my job”?

It is all the rage these days for Democrats to employ the word “extremist,” especially regarding certain judges, judicial nominees, and judicial scholars.

• Do Democrats find the following ideas extremist?

“The mass of the citizens [not the courts] is the safest depository of their own rights.”

“A judiciary independent of a king or executive alone is a good thing; but independence  of the will of the nation is a solecism, at least in a republican government.”

“Let the future appointments of [Federal] judges be for four or six years and renewable by the President and Senate.” [The writer believed that the Constitution’s provision for granting life tenure to Federal judges is a mistake.]

“One single object . . . [will merit] the endless gratitude of society: that of restraining the judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges . . . our foreign department.”

• Will Democrats proudly give us their full reaction to each of those quotes taken from the correspondence of a person who found many judges so far removed from the idea of democracy and the American people that he called the judiciary a “foreign department”?

• Will Democrats proudly stand behind their judgments even after they learn that the person quoted above is Thomas Jefferson, the great champion of democracy and the great opponent of centralized governmental power?

With the invocation of Jefferson, this list of questions, though far from complete, ends in the hope that it will elicit some straight answers from members of a party which today regards its true-revolutionary founder as standing upon an opposite pole. Of course, we never expect to hear anything remotely Jeffersonian from mere politicians such as Mr. Schumer and Mrs. Clinton, who love the idea of judicial activism so long as it is practiced by Liberal activists. But a word of advice to Democrats such as Pryor and Nelson: If you mean what you say about judicial activism, you had better act courageously, firmly, and fairly upon your beliefs; for in this modern age of communication, the days are gone when politicians can slyly nominate, support, and vote for activist judges, certain that they will never be held accountable by an uninformed public preoccupied with “more important” problems con fronting the nation.

Copyright by A.J. DiCintio

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