4/04 Judicial Supremacy: Threat To Freedom

Judicial Supremacy: Threat To Freedom

Larry Pratt

The travails of Manny Miranda show clearly the proposition that the courts are in the business of legislating. Any claims that judicial orders and decisions are part of the rule of law are mostly pretense. Judges are simply politicians wrapped in black robes and given the luxury of legislating without accountability.

Until recently, Miranda, an attorney, was serving as chief counsel to Sen. Bill Frist (R-TN), Majority Leader of the U.S. Senate. Before that, Miranda had served as counsel to Sen. Orrin Hatch on the U.S. Senate Judiciary Committee.

While working at the Committee, a staffer brought to Miranda’s attention that memos of the then-majority Democrats were available on a common server without any password protection. The same was true for Republican memos. Miranda eventually took an interest, mostly to find out when hearings would be held, because the Democrats gave the Republicans almost no lead time to prepare.

At one point Miranda’s attention was drawn to the talking points against Bush’s judicial nominees prepared for the Democrat Senators — often by outside interest groups such as trial lawyers, abortion groups and civil rights groups. He found that a former employee of the NAACP had gone to work for Sen. Edward Kennedy (D-MA). Working for Kennedy, Olati Johnson wrote a memo suggesting that the confirmation hearing for Ohio Supreme Court Justice Julia Smith Gibbons be delayed. Gibbons had been nominated for a position on the U.S. Court of Appeals for the Sixth Circuit.

Kennedy and the Democrats held off the hearing until after an affirmative action case (viewed as the most important such case in 25 years) was decided by the Sixth Circuit. Why? Gibbons was viewed as likely to vote against the liberals and that would have tipped the decision the other way.

Isn’t Kennedy’s footdragging far more contemptible than what Miranda did? After receiving a good deal of indignant news coverage in the partisan press, Miranda was forced to resign by Frist before the Senate Sergeant at Arms had even conducted an investigation of hacking the Democrats’ computer files. (How one can hack a document that is posted in the open has yet to be explained by Sen. Frist or anyone else.) That same partisan press has not had a thing to say about the memo from the NAACP/Kennedy aide Johnson.

Frist and Hatch had both promised Miranda that if he “resigned,” they would refocus the press coverage toward the content of the Democrat memos. That promise has not been kept — nor have those Senators even attempted to keep it.

In another “talking points” memo for Kennedy, Jay Bybee, a nominee for the Ninth Circuit, was described as “awful.” Among his “shortcomings” was his opposition to gun control.

Miranda makes a very important observation. Until the successful fight against confirming Texas Supreme Court Justice Priscilla Owens to the Fifth Circuit, judicial battles had been masked in procedural fights. Filibusters would be conducted because a candidate was alleged to lack a judicial temperament which was usually a code phrase for a nominee who thinks the Constitution means what it says. The Owens nomination was blocked on openly ideological grounds.

In other words, the memos, and now the public record itself, make it impossible to believe that a judicial order is necessarily a lawful order. Judicial orders and decisions will usually be found upon inspection to be nothing more than legislating by “legislators” who do not have to stand for reelection. Calling these legislators judges confuses the issue.

Another question. Why does Congress allow this to happen? The answer is, because a socialist agenda can be imposed from the top down on an unwilling population with no consequences for the elected office holders. Congress can blame the courts and the courts can sit and smirk.

Voters had better start asking candidates for the House of Representatives if they are willing to file resolutions of impeachment against judges making unconstitutional rulings. All federal candidates also need to be made to commit to using Congress’ constitutional powers to strip jurisdiction from federal courts. If the courts cannot get involved in various issues, they cannot legislate there at all.

Manny Miranda should be regarded as a national hero. What the nation does with his gift will determine whether we rein in the judiciary or continue to allow it to tyrannize us.

My interview with Miranda can be heard on the web at http://www.gunowners.org/radio.htm.