Should judicial activism be declared ‘unconstitutional?’

The uproar resulting from the Ninth Circuit’s already infamous Pledge of Allegiance decision is enough to make conservatives childishly silly enough to hop on a rusty gate and swing to the melodious sounds of  “Naa-na-na-Naa-na.”  And as legislators stumble over themselves to recite the pledge with sincerity and gusto, it’s more than a little amusing that it all started with two little words and a couple of liberals in black robes. 

If we weren’t having so much fun, we could almost feel sorry for Alfred T. Goodwin and Stephen Reinhardt, the two concurring judges on the pledge opinion.  How many highbrow judges issue stays on their own rulings?  And talk about bad timing.  Barely a week after the court said “under God” was unconstitutional, people were shooting off both their fireworks and their mouths saying the Pledge of Allegiance like crazy.  Isn’t it great when a plan backfires in front of God and everybody at the Fourth of July parade?

 But as silvery as the lining is to the Ninth Circuit’s little black cloud, there is, sadly, still a storm to contend with, and it strikes deeper than robbing school children of an affirmation of God and country before starting class.  That storm—judicial activism—has been brewing for some time, and its effects are felt here in Kentucky in another controversy involving God, tradition, and the public square.

Only 9 of 16 judgeships are filled in the Sixth Circuit, which serves Kentucky, according to Erik Stanley, an attorney with Liberty Counsel, representing six Kentucky counties being sued by the ACLU over posting the Ten Commandments in public buildings.  Stanley says the case has a good chance of ending up at the Supreme Court if it ever gets through the bogged-down lower court.  “The Sixth Circuit doesn’t have time because there are no judges.  It’s running at about half-staff.  So the practical aspects [of vacancies] are really coming home in this Ten Commandments issue,” he said.

Since April, the Bush administration has sent 100 federal judicial nominees to the Senate Judiciary Committee headed by Sen. Patrick Leahy, D-Vt.  Of those, 30 nominations were for circuit courts, with only two having been confirmed.  

President Bush has a tendency to nominate conservative judges, and that doesn’t sit well with the liberal majority on the Judiciary Committee.  I suppose they figure if they hold out long enough, Bush will send them someone more to their liking, perhaps more activist judges like the Ninth Circuit’s Goodwin and Reinhardt.  If you could find “judicial activist” in the dictionary, there would likely be a notation saying, “see Ninth Circuit Court of Appeals.”  In recent years, 27 of 29 appeals from the Ninth Circuit have been overturned by the Supreme Court—17 of them unanimously.  But while liberal judges like these seem to sail through the Democrat-controlled Senate Judiciary Committee, they are an increasingly hard sell to the flag wavers in the heartland—and in the days since Sept. 11, there seems to be a lot of them. 

Sen. Diane Feinstein, D-Ca, who is a member of the Judiciary Committee, has taken note, saying she was “embarrassed” that the Pledge of Allegiance judgment occurred in her district.  Only time will tell if her embarrassment translates into confirmation of better judges—those who interpret the laws, not tweak them into their own elitist versions that are way out of step with the mainstream of both history and common sense.

Maybe all the pledge hoopla will cause people to let it be known that they’d like the Constitution defined, not dissected and reconfigured with all the “offensive” stuff thrown out.  Maybe they’ll demand confirmation of common-sense judges that will lighten the load of the overworked ones that serve Kentucky, because with the Ten Commandments cases and others, the problem of judicial activism becomes less about Washington power struggles and more about what happens on Main Street where people still say the Pledge of Allegiance the old-fashioned way.