Is the Judiciary Above Criticism?

Former U.S. Solicitor General Theodore Olson had an op-ed piece in Saturday’s Wall Street Journal that is worth reading. In it he stands as a voice of reason advocating the virtues of our independent judiciary and appealing for cooler heads, civility, and respect of the judiciary so that judges can continue their important work unencumbered by untoward criticism.

I found that reading the responses to Mr. Olson’s article was more enjoyable, insightful, and informative than reading the article itself (even if some writers’ grammatical skills were less than perfect).

Some of the more sanguine responses included comments like:

• “With judges, as with any other profession, if you want my respect, earn it” (Rick Irving – Atlanta).


• “Mr. Olson's premise that the federal judiciary is respected has no basis in reality for a significant portion of the population” (Harold Finton - Charlotte, NC).


• “Your article is evidence that the effectiveness of our criticism is just beginning to be noticed” (Elliott Reed – Phoenix).


• “You sir, as an attorney, are indeed a member of that select group who think you are the only ones with intellectual capacity to read and understand the Constitution” (Ruth Skidmore - Plymouth, CA).


• “[Mr. Olsen’s] comments are mindful of the disbelief of Crown and Parliament in the 1760s and 1770s that the American colonists could have any squawk about their treatment by the British” (Joseph Revell - Pensacola, FL).

William Woodford of Little Rock starts with, “What planet has Mr. Olson been living on?” He concludes with:

As a practical matter, contemporary American jurisprudence holds that the law is whatever the lawyers say it is, no matter what the statutes or precedents say. This is called "gaming the system," and it has led to a system of arbitrary justice that has become the rule of men rather than the rule of law. Despite this, Mr. Olson argues that there is no need for someone to guard the guardians.

Many readers hammered away at judicial decisions based in foreign law and decisions that effectively destroy the true intent of the Constitution.

• “For over six decades now, enough higher court judges have independently served the political agendas of socialist liberalism to render our Constitution virtually ineffective and unrecognizable compared to it's original form, intent and protections” (Carl Withrow – Manassas, VA).


• “If a neutral observer were to read the Constitution and then to observe the state and scope of the Federal government today, he would have to come to the conclusion that we have become a nation governed by rule of men, not by rule of law” (Kevin Mawn – Marietta, GA).


• “The Founding Fathers said and wrote nothing about judges being gods. That came later when liberal activist judges starting using their cherished and concise U.S. Constitution as a Ouija Board” (Duane Speight – Prosperity, SC).

I suppose my favorite response came from Harold Finton of Charlotte, NC, who wrote:

Too many people have not respect for the judiciary. That lack of respect comes from their arrogance and abuse. Pretending they are gold-plated gods is no longer working. It is time to treat a few of them like disposable paper plates. It will put the fear of pension loss in the rest of them. And that would be a good thing.

Mr. Finton concludes with a call to arms of sorts, saying, “It is time to throw down false idols. It is better to worship at the altar of liberty than to bear the yoke of judicial tyranny.”

A significant portion of the population is fed up with the current state of the judiciary. They are well informed and are politically active. They have been around for a long time, but for years they have felt impotent to do anything about the situation. Now they sense an opportunity to actually make a difference. Mr. Olson wants these people to return to irrelevance, but that’s not going to happen. The elites may stick their heads in the sand about judicial activism, but the longer they ignore the issue the stronger the backlash will become.

Hat tip: Artful criticism of Justice Ginsburg's position of relying on foreign law to interpret the U.S. Constitution.

Hat tip: Thomas Sowell comments on Theodore Olson’s article.

Is Easy Piracy OK?

As I listened to the disc my son had popped into the computer, I was amazed at some of the songs his teenage friends had created. One friend has had one of his songs played on a local university radio station (with a listening audience of over seven people).

My son explained that his friends create music using an application called Fruity Loops Studio that they had downloaded from the Internet. I have a firewall, and I’m one of those control freak dads that makes his kids get permission to download stuff. As my son extolled the virtues of FL Studio, I googled and found the website.

You can download a free trial copy of the Express edition of the application, but it will cost you $49 to make it fully functional. Buying the Fruity edition costs $99, and the Producer edition costs $149. I surmise from product descriptions on the site that my son’s friends are using the most expensive version, possibly with additional “XXL” options that run the price up to $299. If you’re into creating music, this thing looks like a major blast to use.

I told my son that while I would love for our family to have this product, we simply don’t have the resources to buy it right now. He said that one of his friends had downloaded a key generator for FL Studio. That’s when the red flags went up.

A key generator is a cleverly written program that will give you a product key that will fully activate a software application without obtaining a key from an official source; i.e. by paying for it.

I’m hypersensitive on this issue because I work in the software development field and have a special interest in electronic intellectual properties. So I proceeded to lecture my son about laws, ethics, and the eighth commandment, concluding with something like, “We don’t have illegal media in our home!”

The next day I pulled up Windows Media Player and scanned through the library to see what I might want to listen to. I then realized that we had at least one album there that had been ripped from a CD belonging to a friend of my son. Kids nowadays seem to feel that sharing songs is an acceptable pastime. In fact, they see it as a good thing. I sense that many Americans feel the same way.

Few of us would think of walking into a store and pilfering a CD or a software package, but when it’s available electronically we suddenly have no compunction about pulling it down and using it free of charge. After all, one electronic file transfer doesn’t substantially increase the producer’s costs, so there’s really no basis for charging for it, right?

That’s the wrong question. The question should be, “Do I want this enough to pay the price for it?” When someone legally holds something for sale, the only legal and ethical way to obtain it is to pay the required price. If the seller will agree to a discount, that’s great, but there is really no excuse for ripping someone off simply because it is easy.

Researchers have found (requires registration) that pirating software and media stifles innovation and costs jobs. Some countries are working with the Business Software Alliance to strengthen their intellectual property policies so that they can improve domestic innovation and compete in the global marketplace.

Pirating media might reduce our costs and increase our convenience, but in the long run we are hurting the economy and are costing jobs. And despite any slick arguments about ease and overpricing, you simply can’t get around the fact that what you are doing is stealing.

Reining In the Judiciary

Jonah Goldberg parallels what I said in a previous post about the judiciary. The current bizarre confirmation “maneuvering is the natural consequence of giving judges more power than they deserve or need. Debate over judicial appointments used to be more decorous, largely because the stakes were lower. If we empowered the head of the U.S. Postal Service to rule vast swaths of our lives, we'd have huge confirmation battles over the postmaster general.”

Goldberg proposes to solve the problem by returning the Senate to its old filibuster rules, which “required senators to pack a thermos and ramble from a podium for hours or days on end.” He claims this would not only provide drama for politicos, but would put a human face on the issue, thereby providing voters a clear target. He concludes, “That would inject some democratic accountability into the only available vein. After all, nothing focuses the mind of a senator more than watching a colleague get fired.”

I'm not sure he's correct. Harry Reid is continuing the tactics of his defeated predecessor, Tom Daschle. At least Goldberg proposes a solution rather than simply whining.

Judicial Legislation: Solutions Needed More Than Whining

The editors of the National Review complain that recent remarks by two Republican members of Congress are not helpful to the cause of “bring[ing] judicial power down to its proper constitutional size.” After criticizing the politicians, the editors say, “it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law.” They further define the problem by concluding that the kind of judicial independence we currently have is independence from the Constitution.

But for all of their haranguing of conservative politicians and definition of the problem of an out-of-control judiciary, they provide no suggestions on how to deal with the problem. My boss doesn’t mind hearing about problems, but unless you also suggest some possible courses of action, he figures you’re simply whining. That’s pretty much what the editors of the National Review are doing in this instance.

Mormons Also Revere Pope John Paul II

For a pleasant LDS perspective on the Pope, see this article by LDS authors Daniel C. Peterson and William J. Hamblin. Orson Scott Card adds his admiration for the Pope here.

What's the Big Deal On Judges?

What has happened to our federal justice system?

Senate Minority Leader Harry Reid (D-NV) has threatened to shut down business in the Senate (see here) if the Republicans limit the ability to filibuster judicial confirmation votes on the Senate floor. (Some people think that would be great). He wants to preserve a practice instituted by his predecessor, the former Senator Tom Daschle (D-SD) that created a new standard of essentially requiring 60 votes to confirm a federal judicial nominee. Although Senator Daschle’s defeat (and arguably the poor showing by Democrats in some congressional races in 2004) had much to do with this obstructionism, Senator Reid is adamant that it will continue.

Senate Majority Leader Bill Frist (R-TN) has threatened to use what has been dubbed “the nuclear option” to ensure that judicial nominees get a fair up or down vote on the Senate floor. It sounds ominous, and indeed, some former Republican senators argue that it would be a bad idea (here – requires registration).

The Senate didn’t used to get so worked up over judicial nominees. What the heck is going on here? Senator Robert Byrd (D-WV), one of the Senate’s leading rules and procedures experts recently admitted that the Senate technically doesn’t even need to vote to confirm a nominee. The Wall Street Journal editors suggested (here – requires registration) that this means that, “Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates.”

The whole showdown issue has its roots in judicial history. Historian Arthur Herman details (here) how the Supreme Court was established merely to provide a common sense check and balance on federal laws passed by politicians. The Founders felt that this body would never exceed its role of merely interpreting the laws.

Any study of federal judicial history, however, shows that the federal judiciary has continually worked to expand its role. In the Right Nation, John Micklethwait and Adrian Woodridge argue that judicial legislation came to a head in the Roe v. Wade and Doe v. Bolton decisions. Duncan Currie, reviewing the book, says that in Western Europe abortion was legalized in over a period of time “through legislation and, occasionally, referenda.”

In the U.S., as we are all painfully aware, the Supreme Court effectively wrote a new law legalizing abortion. Duncan Currie says, “Thus the chief lesson of Roe: When citizens lose at the ballot box, they feel defeated. When they lose by judicial fiat, they feel cheated.”

Judicial legislation didn’t start with Roe, but that’s when it became mainstreamed. It has blossomed tremendously since then. One problem is that our Congressional leaders have largely been AWOL in their Constitutional duty to provide judicial oversight. Once a judge or justice is appointed, that’s the end of it. It has been many decades since any of these people have truly been called to task for their gross errors, arrogance, and legislating from the bench.

In a previous post I quoted Jonah Goldberg saying, “The meaning of the Constitution does not exist at all — outside the cranium of whichever justice provides the swing vote.”

In other words, when we are a nation of laws it does not matter so much who is appointed fill a judicial seat as long as the person is competent. However, now that judges create laws, a right expressly reserved for the legislative branch in the Constitution, we are becoming a nation of men rather than a nation of laws.

It naturally makes sense that since judges now legislate rather than merely interpret; their confirmations take on an air of an election campaign because personal ideology now matters. Anything Congress does can now be trumped by the judiciary. That is why Congressional leaders are fighting tooth and nail over this issue. The judiciary is everything.

Only a strong public outcry and a firm action by elected officials can reverse this trend. Is the public aroused enough over this issue to make it happen? Are we supporting candidates that have the will to do their job in this area? We might not be there yet, but there seems to be an increased vigor on this issue among American voters. Maybe we are on our way there.

Extending Daylight Saving Time: It's About the Money

When I was a kid and asked my mom what daylight saving time (DST) was. She said it was like a guy whose feet stuck out and got cold at night because his blanket was too short. So he cut a foot off the top of the blanket and sewed that portion onto the bottom to make the blanket longer.

Some of our lawmakers seem to actually believe this would be effective. On Wednesday, the House Energy and Commerce Committee approved an amendment to the energy bill under consideration that would extend DST by two months. (See story). Rep. Ed Markey (D-Mass) said, “The more daylight we have, the less electricity we use.”

I may be picking at nits, but changing a clock does not produce more daylight. What Rep. Markey probably meant is that we tend to use more electricity later in the day coincidental with sundown, so that shifting an hour of daylight to later in the day would result in a reduction in energy usage. He cited a Transportation Department estimate showing that the proposed extension of DST would save the equivalent of 10,000 barrels of oil daily.

10,000 barrels of oil! That’s a lot, isn’t it? Well, no, it really isn’t. The country uses about 20 Million barrels daily. 10,000 barrels is a savings of only 1/20%. In other words, it’s almost nothing. It’s a symbolic feel-good piece of legislation. These people want my children to go to school in the dark for a symbolic gesture? They want our schoolchildren groggy for the first three hours of school instead of just the first two, merely so that they can pat themselves on the back for theoretically reducing energy usage by almost nothing?

The assumption seems to be that reduced energy usage is such a desirable goal that it outweighs all other considerations, even if it’s only an infinitesimal reduction. Before passing a sweeping measure that will impact the lives of every single American and the people they interact with internationally, our lawmakers should consider all of the ramifications of this proposal.

If history is any indication (see here and here and here), the legislative effort to extend DST is being promoted by lobbyists for the sports, sporting equipment, retailing, automaker and oil industries. (Can you say, “KA-CHING!” children?) They believe that people attend more sporting events, buy more sports equipment, do more shopping, and drive more when it is lighter later. Could it be that Rep. Markey and his colleagues are more interested in this than in energy savings? Never mind the documented increase in school bus accidents during the dark mornings or the fact that the DOT estimate is based on the early 70s when far fewer people had air conditioning.

If DST is such a magnificent thing, why don’t our lawmakers simply mandate it year round as has been done temporarily at least twice in the past? Many Americans hate doing the twice-annual clock shift anyway. I suppose if lawmakers were go year round right now they would give up any future bargaining chit to garner more cash from the aforementioned deep-pocketed special interest groups a few years down the road. They don’t want to kill the goose that lays the golden eggs just yet.