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Judiciary

Return to Common Sense

November 27, 2012

Section: Domestic – Judiciary

“Judges are responsible for interpreting the Constitution, not legislating from the bench”

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” Abraham Lincoln.

 

Philosophy (Background, Issues, Objectives):

Constitution, Article III, describes judicial Power.

• Provides checks and balances to Executive and Legislative branches.
• Supreme Court interprets law how it supports the Constitution.

Constitution, 5^th Amendment, introduces use for a Grand Jury.

·         “No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

·         A grand jury is a type of jury that determines whether there is enough evidence for a trial.

·         Grand juries can also prosecute criminal actions of government employees and their laqwyers.

Judges are sworn to support the Constitution, but may have differing approaches how to support it.

• Originalists interpret the Constitution based on original public meaning when law was enacted.   
• Constructionalists interpret the Constitution based on an evolving standard of decency.

Judges must be nominated with advice and counsel from the Senate.

• Federal judges must be experienced, knowledgeable, and objective.
• Senate reviews judicial credentials and job suitability.

Courts are not meeting expectations.

• Justice is slow due to caseload backlogs.
• Courts are accepting cases where suit has no standing
• Delay is standard defense tactic, eroding prosecution commitment.
• Plea bargaining addresses workload, but undermines perception of justice.
• Justice (sentence) is inconsistent between judges.
• Impeachment of sitting judges is onerous and time consuming.

Special Prosecutors investigate government officials for misconduct while in office.

• Special prosecutors were used to prepare impeachment charges against Bill Clinton.
• Special prosecutors are accused of being over zealous and partisan in their investigations.

Grand Jury Arbitration is a legal technique for the resolution of disputes outside the courts, where a third party reviews the case and imposes a decision that is legally binding for both sides.

• This 84-year old arbitration system remains a fair, inexpensive and unbiased option for millions of American consumers.
• Not only is arbitration relatively inexpensive, the Searle study shows that it provides consumers a level playing field in dealing with businesses—even those businesses that regularly use arbitration to settle their consumer disputes. 
• Arbitration helps consumers by providing them a path to justice other than the one through our overcrowded courts, where the only sure winners are the trial lawyers.

 

Principles:

Original Founder intent was courts to be objective check and balance to the other two branches.

• Senate advice and council on judicial confirmation was designed as a non-binding, second opinion.

 

Recommendations:

Short Term, Return judiciary funding to levels prior to recent unwarranted expansion.

• Eliminate Office of Justice Programs.

Nominate and confirm only those justices who have a proven record of fidelity to the Constitution.

• Fill judicial openings in less than a year.
• Reject activist judge.
• Eliminate partisan American Bar Association from any role vetting federal judicial nominees.
• Clarify the rules of the Senate to prevent a minority of obstructionists from permanently blocking a vote.
• Enact term limits for federal judicial appointments (12 years max).

Elected officials should criticize any policymaking from the bench that is disguised as judicial “interpretation.”

• Reinterpret Flast vs. Cohen to impose more stringent standing under the Establishment Clause.

• Eliminate the overuse of Special Prosecutors.

Encourage arbitration in consumer and employment matters to free up over-burdened courts.

Long Term, Enact Constitutional Amendment to impose term limits for Supreme Court Justices (12 years max).

Remove federal judges who have a history of being reversed on appeal.

• Eliminate the Ninth U.S. Circuit Court of Appeals due to long history of activist rulings.

 

References:

“Democrat Memogate: The Beginning of Political Scandal” dated February 9, 2004 published by Center for Individual Freedom at http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/democrat_memogate.htm .

“Judicial Activism Undermines the Integrity of the Constitution (Part I)” by Nancy Salvato dated March 12, 2004 published on American Daily at http://www.americandaily.com/article/742 .

“Judicial Activism Undermines the Integrity of the Constitution (Part II)” by Nancy Salvato dated March 14, 2004 published on American Daily at http://americandaily.com/article/741 .

“Clarifying ‘Extremism’” by Stephen Markman dated September 19, 2005 published on National Review Online at http://www.nationalreview.com/comment/markman200509190840.asp .

“Lowering the Bar” by M. Edward Whelan III dated June 12, 2006 published by Ethics and Public Policy Center at http://www.eppc.org/printVersion/print_pub.asp?pubID=2644 .

“The ABA’s Agenda” dated July 31, 2006 published in the Wall Street Journal Editorial Page on http://www.opinionjournal.com/editorial/feature.html?id=110008728  .

“Ten Years and Out” by John Andrews dated August 10, 2006 published in the Wall Street Journal Editorial Page on http://www.opinionjournal.com/cc/?id=110008774 .

“It’s Time for the Supreme Court to Say ‘No’” by Jay Sekulow dated January 2, 2007 published on Town Hall at http://www.townhall.com/columnists/JaySekulow/2007/01/02/it%e2%80%99s_time_for_the_supreme_court_to_say_%e2%80%9cno%e2%80%9d .

“Not Credible ‘Whatsoever’” by Edward Whelan dated January 10, 2007 published on National Review Online at http://article.nationalreview.com/?q=MTk5OTZkZTY2N2JkZmQ5NDgyNjAwZjAxZDE0ZjY3Yzc= .

“The Pot Calling the Kettle ‘Interim’” by Andrew C. McCarthy dated January 17, 2007 published on National Review Online at http://article.nationalreview.com/print/?q=MDZmMzQ5Zjg4ZGI1OTgxODA1OWM5YzFjYTRmYTlhNzk= .

“The lies he told” dated March 7, 2007 published on Rocky Mountains News at http://www.rockymountainnews.com/drmn/editorials/article/0,2777,DRMN_23964_5399259,00.html .

“The Next Supreme Court Vacancy” by Edward Whelan dated June 21, 2007 published by National Review Online at http://article.nationalreview.com/?q=ZmMwMzIzZWNiZmJkYzZmOWU1NWE4ZTJlZWQxZDY5MTg= .

“Does the Court Mean Business?” by Michael S. Greve dated September 19, 2007 published by American Enterprise Institute at http://www.aei.org/publications/pubID.26834,filter.all/pub_detail.asp .

“The Right Judicial Litmus Test” by Steven G. Calabresi dated October 7, 2007 published by Wall Street Journal Opinion Journal at http://www.opinionjournal.com/editorial/feature.html?id=110010702 .

“Mr. Constitution” by David Rivkin and Lee A. Casey dated March 22, 2008 published by The Wall Street Journal at http://online.wsj.com/public/article_print/SB120614142302256093.html .

“Read Before Burning” by Lisa A. Rickard dated March 11, 2009 published by Town Hall at http://townhall.com/columnists/LisaARickard/2009/03/11/read_before_burning .

“Grand jury recommends: indict Barry Soetoro, a.k.a. Barack Obama” by Mark S. McGrew dated April 15, 2009 published by Renew America at http://www.renewamerica.us/columns/mcgrew/090415 .

“Keeping a Republic: Overcoming the Corrupted Judiciary” by Robert H. Bork dated February 24, 2010 published by The Heritage Foundation at http://www.heritage.org/Research/LegalIssues/hl1147.cfm .

“Let’s Get Original” by Robert VerBruggen dated February 2010 published by The American Spectator at http://spectator.org/archives/2010/02/26/lets-get-original .

“Civil Justice Reform” dated August 17, 2010 published by The Heritage Foundation at http://www.heritage.org/Research/Reports/2010/08/Civil-Justice-Reform .

“The Role of the Courts” dated August 17, 2010 published by The Heritage Foundation at http://www.heritage.org/Research/Reports/2010/08/The-Role-of-the-Courts .

“Sen. Paul Proposes Serious Cuts” by Chris Edwards dated January 31, 2011 published by Cato Institute at http://www.downsizinggovernment.org/sen-rand-paul-proposes-serious-cuts .

“President Gingrich Would Curtail Judicial Power” by Kevin Mooney dated July 13, 2011 published by The American Spectator at http://spectator.org/archives/2011/07/13/president-gingrich-would-curta .

“Term Limits for Judges” by Richard A Epstein dated April 17, 2012 published by Hoover Institution at http://www.hoover.org/publications/defining-ideas/article/114801 .