By Greg Smith
Harry Reid may go down as the man who killed judicial review. By instituting what was known as the “nuclear option” he has begun a partisan arms race that should leave Republicans planning a response that would blunt both the ability of politicians to appoint loose constructionists, and judges to replace the Constitution with their personal opinions.
Nowhere does the Constitution give the courts the right to judicial review of laws for constitutionality. The only mention of courts in the Constitution provides for a supreme court. Judicial review was a right assumed by the Supreme Court 14 years after the Constitution was approved, thus it can be altered or removed with a law of a single sentence.
Senate rules, until changed by Senate Majority Leader Harry Reid, required at least 60 votes to close debate and allowed a vote on federal judges nominated by the president. During the Bush years Democrats used this requirement to their full advantage, not allowing votes on judges to whom they wanted to keep off the federal judiciary. Republicans, who then held the Senate threatened Democrats with a rule change so they could vote with a simple majority. Democrats protested this idea as an affront to the dignity of the Senate, Republicans never implemented the threat.
In 2013 the two parties were each in the opposite position, Democrats went through with the rule change they had previously assailed. This was a tactical victory for Democrats who want complete latitude to place judges on the federal bench, and some judges who believe the ends justifies the means. It will prove to be a strategic blunder if Republicans retaliate in the future.
No occasion of a judge ignoring the democratic process is more memorable than in the case of Proposition 209, a voter referendum approved by 54% of California voters in 1996, the principal wording of which said “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
A color-blind society should aspire to this level of equality.
Soon after passage Chief U.S. District Judge Thelton Henderson issued a temporary injunction against enforcement of Prop 209 saying it was likely to be found in conflict with the 14th Amendment. Now, the 14th Amendment contains the following: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This is known as the Equal Protection Clause in the 14th Amendment, which doesn’t mention race or gender. It did not need to.
According to an article on cnn.com Henderson wrote in his order: “Courts must look beyond the plain language of an enactment.” Exactly the problem. If judges look beyond what is actually written in the laws and Constitution they can find any right or prohibition they desire, negating the very Constitution they swear to uphold.
Judicial oversight should be a good thing, and for about 160 years, it was. Courts closely followed the Constitution and protected citizens when those who governed strayed beyond their rights. No more. Judges to an astonishing degree think themselves the arbiter of good and bad, like some type of robed superheroes regularly installing their personal opinions disguised – poorly – as legal arguments.
This is not an argument against judicial review. A judge simply following the Constitution as it is written is a bulwark against tyranny and a friend of freedom. A judge overriding the democratic process is tyranny itself. Citizens of all political outlooks should agree this enfeeblement of the peoples’ power be slapped down like a rabid dog.
This is an argument against judges making up law where none exist. It is against unelected judges who think they know best ignoring the democratic process on which this nation was built. A judge has no right to institute what he or she thinks is right in place of what is constitutional. The judiciary today has crossed that line too many times to be left in place without either a major overhaul of process or personnel.
A higher court eventually reversed Henderson’s injunction against Prop 209, allowing it to take effect. Opponents of Prop 209 predicted it would have a enormously deleterious impact on minorities in the state university system. So how bad was it? According to a report by the National Association of Scholars in the ensuing eight years after Prop 209 minority enrollment and graduation rates had both increased.
The reason is simple: California voters put the kibosh on social engineering which had previously made choices based on perceived fairness, not on the needs of the individual, proving the most efficient and effective system of allocation is the market, not the magistrate.
Americans no longer have the respect for the courts they had when FDR tried to pack the Supreme Court in 1937, but court packing is still not the answer. The courts need an overhaul and if Republicans were willing to do this fairly and quickly, they would do themselves, the nation, and even the courts a favor. ©
Greg Smith is a freelance writer and political consultant who lives in Bantam, CT. His blog is found at http://www.betterfatthanfascist.com.