In Check

I read with interest the article by Miriam A. Krinsky and Robin Meadow, which argued that in order to administer justice impartially we must permit judicial officers to be independent. "Voting to Maintain Justices' Objectivity," Forum, Nov. 4, 2002.

The article discusses the judges of our California appellate courts, arguing that their retention is an appropriate starting point and that the voters should not remove them. The article then shifts to the federal courts and a discussion of our Founding Fathers.

I know of no Founding Father, certainly neither Thomas Jefferson nor James Madison, who spoke of an independent judiciary. In fact, Article III of the Constitution assures us that Congress controls the federal courts "as Congress may from time to time ordain and establish" and under "such regulations as Congress shall make."

Hence, to the extent that the Constitution remains relevant, which is a point of contention in some academic circles, the Founding Fathers intended the judiciary to be accountable to the people through Congress. The Founding Fathers also intended the judiciary to be the weakest of the three branches, with the executive wielding the "sword" and the Legislature controlling the "purse."

Of what judiciary do Krinsky and Meadow speak that is free from partisan politics? Are they referring to the Florida Supreme Court, which ignored the law and rewrote a Florida statute to favor Al Gore in the 2000 election? The court substituted its political agenda in place of the existing law. The law stated that the results of the voting had to be verified within seven days of the election. The court determined that this was not sufficient time for the results to be verified and essentially rewrote the law by permitting the Gore machine 23 days to verify the results. In so doing, the court usurped the role of the Florida Legislature.

The Florida Supreme Court also opined on the lack of wisdom of the statute that they were construing. Any judicial officer with more than 10 minutes on the bench knows that deciding the wisdom, or lack thereof, of a statute is beyond the proper judicial role.

Having based their collective decision on the results that they were seeking rather than on the law as clearly written, the court engaged in the politicization of the judiciary. The U.S. Supreme Court in Bush v. Gore corrected this obviously erroneous decision.

Or do Krinsky and Meadow refer to the New Jersey Supreme Court, which rewrote the law in the 2002 election in favor of the Democrats by permitting Sen. Robert G. Torricelli to substitute out at a time clearly beyond that permitted by New Jersey law? Again, the court put its political agenda ahead of intellectually honest review. The court knew that Torricelli could not win and hence permitted the substitution.

The Krinsky and Meadow article states that judges protect the interests of ordinary people. How does a judge protect these interests? Is it done by holding an issue beyond the power of the people by declaring it "protected" by the Constitution so that the judge decides for the people what is in their best interest? Judicial officers do this every day by basing their rulings on their hidden political ideology.

Permitting the people to decide most issues for themselves would better protect ordinary people. Creating constitutional rights that did not and do not exist does not protect the people. The people should be able to rid themselves of these political-activist judicial officers.

As for the appropriate characteristics that a judicial officer must have, intellectual ability and integrity certainly are appropriate, along with judicial temperament. The other two characteristics mentioned by Krinsky and Meadow, fairness and absence of bias, are subjective and inappropriate, as they are nothing more then code words for the politically correct elitists who distrust the people.

For these elitists, if a judicial officer is anti-abortion or pro-gun, then he or she must be unfair or biased. If he or she is pro-gay, anti-gun, pro-abortion, then he or she is obviously fair and unbiased.

Allowing the people to oust judicial officers makes the judiciary accountable to the people rather than to some politically savvy body appointed by an executive officer. This does not render the judiciary political in the sense of being subject to the will of the people, except indirectly. The Legislature writes the law consistent with the views of the people. The judiciary, by refraining from rewriting the law, also is complying indirectly with the will of the people.

If this is truly a constitutional democratic republic - i.e., the will of the people, through their representatives, is to prevail, except for those very few areas forbidden by the Constitution - then it is essential that those who interpret the Constitution and all other laws construe them in the manner consistent with maximum democracy and minimum interference by government.

Each time a judicial officer finds something protected by the Constitution and, therefore, outside the sphere of democracy, the rights of the people are lessened, and the power of the government over the people grows.

The judiciary has been responsible for bringing us many things that are against the wishes of the people. If put to a vote of the people, abortion would not be legal, nor would flag-burning. Defendants like O.J. Simpson would not be able to sit silent while the prosecutor is prevented from commenting on the defendant's silence. No other "civilized" society provides this "right" to its alleged miscreants.

It is only through the judiciary that the politically correct have been able to force their elitist values, such as burning the flag and banning the Ten Commandments and prayer in schools, on the people. None of this would pass muster were the people permitted to vote on it.

A judiciary accountable to no one is an oligarchy, feared by Jefferson, and should be feared by all of us as the ultimate in government control over the people. Thus, the people's power to reject sitting judicial officers is both necessary and proper.

It is the height of naivete to suggest that any judicial officer is apolitical. They are all political and, as such, should be accountable to the electorate. If judicial officers were to construe the law as written and to employ elementary rules of construction where the law is ambiguous, then there would be no need for the people to remove them. Until then, however, the people must hold the judiciary accountable, lest we have an unelected oligarchic government in control of our lives.