Gavel powers

In an almost hysterical reaction to comments by Majority Leader Tom DeLay about federal judges, several Democratic members of the House made holier-than-thou speeches last week defending judicial independence.

In perhaps the most ridiculous comment, one member on the House Floor said Mr. DeLay’s words had judges all over the nation “cowering in the corners.” The majority leader may wish he had that much power, but it is obvious to anyone not seeking partisan political points that he does not.

Mr. DeLay’s comments came at the height of the Terri Schiavo case when emotions and feelings ran very high on both sides. Regardless of how one feels about the Schiavo case, and regardless if one is liberal or conservative, everyone should be concerned that the judiciary seems to be setting up as a type of superlegislature. Our Founding Fathers clearly did not mean for the judicial branch to be superior to or more powerful than the legislative and executive branches.

Sen. John Cornyn, Texas Republican, a former State supreme court justice, made some very serious charges on the floor of the Senate April 4. He said, “It causes a lot of people great distress to see judges use the authority they have been given to make raw political or ideological decisions.” He added, “Sometimes the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people.”

The reason people on both sides of the political spectrum should be concerned about this judicial power grab is that the political pendulum swings. Sometimes conservatives control legislative bodies; sometimes liberals do. Would liberals someday want conservative judges overruling their legislation?

The Schiavo bill was very narrowly drawn to apply to just that case at the request or insistence of more liberal members of both House and Senate. Then some liberals in the media, in Congress and in the courts criticized the bill as being too narrowly drawn. One judge, showing great arrogance in a bitter nonjudicial type opinion, even scolded Congress for acting.

I served 71/2 years as a circuit court or state trial court judge in Tennessee. I have great respect for the legal profession and the judiciary. When I attended George Washington University law school in the early 1970s, I took a course in legislative law. We were taught then that courts were not legislatures. They were not to be political bodies, and they were to give great deference to the actions of the Congress and state legislatures.

In fact, we were taught, through much case law, that the courts’ primary role was to try to determine legislative intent, not to try, whenever possible, to overrule it anytime judges might disagree for personal and/or political reasons.

The intent of the Congress was clear in the Schiavo case, with the bill passing the House 203-58 with strong support from both parties and by unanimous agreement in the Senate. Are we now to have some type of judicial dictatorship?

Thomas Jefferson, in a September of 1820 letter, said in response to arguments that federal judges should be the final interpreters of the Constitution: “You seem to consider the federal judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have with others the same passions for the party, for power and the privilege of the corps. Their power is the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal.”

Alexander Hamilton, writing many years ago in Federalist Paper No. 81, said: “To avoid all inconveniences, it will be safest to declare generally that the Supreme Court shall possess appellate jurisdictions that shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify this in such a manner as will best answer the ends of public justice and security.”

All judges are elected or appointed through a political process, yet many do not like to admit this either to themselves or to others. So they sometimes bend over backward to prove how nonpolitical they are. They leap at the chance to rule against a political defendant or show their power by overturning a political decision by Congress or some other legislative body.

Federal judges in particular are not only unelected; they are, as a practical matter, almost totally unaccountable. Thus they have very great power, which is very easily abused. For most of this country’s history, federal judges wielded this power with great restraint, giving great deference to legislative bodies. For many years now, however, we have had far too many judges who have lost their humility and have not shown such restraint. In trying to show how nonpolitical and above politics they are, they have ironically become more political than ever before.

This has become so common that a majority in this country have become upset with government by the judiciary instead of by coequal legislative and executive bodies. We are going down a dangerous path and one clearly not intended by our Founding Fathers or the Constitution they gave us.

We are supposed to have a government of, by, and for the people, not one that ignores clear legislative intent and becomes one that is only of, by and for the courts and of, by and for very political and power-hungry judges.

John J. Duncan Jr. is a Republican member of the U.S. House of Representatives from Tennessee.