“Fighting and Winning the Judges War,” by Patrick Buchanan, World Net Daily, 13 April 2005, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=43772 (from Free Republic).
Buchanan’s clique may be economist leftists with fascist tendencies, but on rolling back the actvist courts he is right — and the Republican leadership is mostly wrong
He correctly analyzes the problem
Is America a democratic republic, where the laws are made by elected legislators? Are we a federal republic, where social questions are decided by the states?
Or has America become a judicial dictatorship, where Supreme Court justices render final judgment on all social and moral issues â€“ from the death penalty to abortion to homosexual rights to religious displays to the Pledge of Allegiance. This question of power lies behind the “Judges War” that has broken out in this capital.
He correctly notes the willingness of socialist Leftists to fight
Tom DeLay, R-Texas, ignited the fuse. When Terri Schiavo died after a Florida judge starved her for two weeks, the enraged House majority leader roared, “The time will come for the men responsible for this to answer for their behavior.” Declared Sen. John Cornyn of Texas, judicial seizures of power could lead people to “engage in violence.” At a conference on “Remedies to Judicial Tyranny,” Phyllis Schlafly, first lady of American conservatism, declared, “Tom DeLay and Sen. Cornyn need to be backed up.”
These are “scary times for the judiciary,” warned the Washington Post. Things could “turn ugly.”
He correctly notes that the “solutions” won’t do anything
Among the remedies proposed on Friday was the impeachment of Justice Anthony Kennedy, who authored the five-to-four decision to outlaw the death penalty for under-18 killers like John Lee Malvo, the Beltway Sniper. Kennedy thus personally reprieved 70 murderers on death row. Another idea, backed by President Bush, is for a constitutional amendment defining marriage as solely between a man and a woman.
Both proposals have one thing in common: Neither is going anywhere. The Senate is not going to impeach Kennedy for voting with four other justices, nor is a constitutional amendment to ban gay marriage going to get the necessary two-thirds of the Senate.
Buchanan’s solution? Preventing the inferior courts from considering cultural cases — starting with the pledge of allegiance and abortion
Is the cause of reining in a renegade court hopeless? Are we fated to live under a judicial dictatorship? No. And the remedy is right there in the GOP platform and the Constitution. Under Article III, Section 2, Congress, with President Bush’s signature, can almost wholly restrict the jurisdiction of the Supreme Court.
In 2004, the House voted 233 to 192 to take gay marriage off the Supreme Court docket and by 247 to 173 to remove the Pledge of Allegiance. If the Senate will go forth and do likewise, the Supreme Court’s right of review of laws in both areas would be ended.
On Jan. 1, Chief Justice Rehnquist in his State of the Judiciary Address noted with alarm that Congress had begun to use its power under Article III. He did not deny that Congress had that power.
Buchanan is refering to this
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court still has inalienable judicial power
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
But the move still is substantial. It prevents sealth judging, where the Supreme Court lets stand lower-level social Leftist decisions. It means opposition to cultural judicial tyranny would have one focus — the Supreme Court itself — rather than the diffuse anger at the entire third branch. It also shows a willingness on the part of Congress to fight.
Three cheers for Buchanan’s proposal!