Thursday, May 15, 2008 |
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ProtectMarriage.com |
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Posted by:
Hugh Hewitt at
7:53 PM |
A constitutional amendment to the California Constitution will almost certainly qualify to be on the ballot in November as more than a million signatures had already been turned in even prior to the Caluifornia Surpreme Court's putsch today. You can contribute to the effort and volunteer to help pass it and thus rebuke the out-of-control California Supreme Court at ProtectMarriage.com.
See Justice Baxter's ringing denunciation of the majority's usurpation of the People's rights below. Then get involved. You don't have to live in California to help deliver this message. Advocates of judicial imposition of same sex marriage will be pouring millions of dollars into defeating the amendment, and it will require an enormous effort to send the message that despite the ambitions of judges and cultural elites, majorities do matter in a Republic built on constitutional majoritarianism.
This will be an enormously important election for the future of the country. Marriage is of course a central institution that society must protect and nurture, but the idea of separation of powers and accountability for courts is also a bedrock principle of the rule of law, and it is eroding before our eyes. The California electorate will be asked to decide if it is willing to be ruled by judges, whether it will simply accept being told what they will do and when they will do it. I hope every interested citizen in the country, every religious leader fond of religious liberty, every legislator who takes his or her job seriously will grasp that the vote on the marriage amendment on the Califoria ballot is really much much more than just a marriage amendment and concerns far more than just California law --it is a vote on who rules, judges or the People, and its result will mark a decisive beginning of a rollback of judicial imperialism or a capitulation to the courts on this and on any other issue the courts decide to impose their will upon.
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Thursday, May 15, 2008 |
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A Judicial Outrage |
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Posted by:
Carol Platt Liebau at
2:36 PM |
If Republicans want voters to understand the threat to representative self-government posed by an activist judiciary, they need look no further than the outrageous usurpation of legislative authority by the California Supreme Court, which has effectively created a right to gay marriage out of whole cloth.
This is, of course, after the voters of California overwhelmingly approved a law defining marriage as between a man and a woman -- and despite the fact that the California law invests those who register as domestic partners with the same rights and responsibilities accruing to husbands and wives.
Those who want gays to have the right to marry had the right and the power to try to change their fellow citizens' minds. Instead, like the abortion activists back in 1972, they've chosen to take their case to an unelected judiciary who has seen a hitherto-unimagined right somehow emerge from a "living" document.
It's wrong and an illegitimate use of judicial authority for the state Supreme Court to insert itself into what's essentially a legislative controversy over a moral and religious matter. Yet, that's what it's done, somehow rearranging the interpretive tea leaves to announce from on high that such a sweeping change will be imposed on Californians --against their explicit, expressed desires eight short years ago.
This makes a mockery of the concept of self-government.
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Thursday, May 15, 2008 |
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The Damage Done By Courts |
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Posted by:
Hugh Hewitt at
1:49 PM |
Today's decision by the California Supreme Court is yet another judicial putsch. It is appalling. Incredibly, a feverish will to power on the part of small numbers of judges is rapidly eroding a citizen's standing as the ultimate lawgiver. Courts unbound by any sense of limits, by any sense of restraint, threaten the basic understanding that has long undergirded the Republic --that the laws proceed from the open consent of the people, and that the ultimate laws, the federal and state constitutions, are documents of fixed meaning and structure, not merely window dressing on the rule of judicial elites or empty phrases waiting for elites to fill them with meaning.
Today's ruling framed the question before the California Supreme Court this way:
The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
That was not in fact the central question. The central question was whether the representative nature of the California state government, including its initiative provisions, would be upheld.
They were not. The California Supreme Court asserted its ultimate power today in a way that is shameful and deeply destructive of the ability of a free people to govern themselves.
UPDATE: From Justice Baxter' opinion partially concurring and partially dissenting:
Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage —an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority....
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will....
I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamentalprovisions of the state Constitution, but it runs afoul of another just as fundamental— article III, section 3, the separation of powers clause. This clause declares that “[t]he powers of state government are legislative, executive, and judicial,” and that“[p]ersons charged with the exercise of one power may not exercise either of the others” except as the Constitution itself specifically provides. (Italics added.)
History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.
Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.
The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
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Friday, April 25, 2008 |
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Hillary on the Supreme Court? |
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Posted by:
Carol Platt Liebau at
4:48 PM |
Below, Matt references the idea that Hillary Clinton might be offered a Supreme Court seat by Barack Obama as an incentive to go away.
There was some speculation on my personal blog (here and here) to this effect back in February.
Would Hillary accept a Supreme Court seat? On the one hand, it could certainly assauge her thirst for power. On the other, as I've thought about this possibility since February, it's also seemed to be that she's hungry not just for power -- but for the constant, public validation and the conflict that accompany a career in elective politics. Would strictly intellectual combat, in a pretty cloistered environment, be enough for her?
Finally, are there any conflict of interest issues that might arise? After all, Hillary Clinton played a great role in staffing the Justice Department during her husband's administration. Could she decide with an open mind Supreme Court cases that implicate issues (or cases themselves) that were litigated by the Clinton Justice Department's solicitor general?
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Thursday, March 27, 2008 |
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"PBIP: Polar Bear-Induced Paralysis" |
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Posted by:
Hugh Hewitt at
12:20 AM |
My new Townhall.com column asks if we want to backdoor Kyoto through the Endangered Species Act.
UPDATE: The Washington Post reports on a second effort to use the ESA to impose hydrocarbon emission controls:
The National Oceanic and Atmospheric Administration announced yesterday that it will evaluate whether four kinds of seals inhabiting Alaska's Bering Sea should be placed on the endangered species list because of melting sea ice.
In December, an environmental group, the Center for Biological Diversity, petitioned NOAA's Fisheries Service to list ribbon seals as facing extinction because global warming has affected the extent of ice cover in both the Bering and Chukchi seas, where the seals live. NOAA officials said they will review the status of bearded, spotted and ringed seals, as well, because they all use the same sea ice in different ways, at different times of the year.
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Wednesday, March 12, 2008 |
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Will Spitzer "Mann" Up? |
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Posted by:
Matt Lewis at
5:49 PM |
Now that he has stepped down, my guess is that Eliot Spitzer will probably not be prosecuted, but if he is, it will likely be under The White Slave Traffic Act of 1910 -- otherwise known as the Mann act (named after James Robert Mann). Essentially, this law prohibits the movement of prostitutes across state lines.
The act is rarely enforced, but Spitzer was known to use obscure laws to go after his enemies, so who knows?
I found this interesting:
The first person prosecuted under the act was heavyweight boxing champion Jack Johnson, who had an affair with a prostitute named Lucille Cameron. Johnson married Cameron so that she couldn't be made to testify against him. Belle Schreiber, a prostitute that had at some point left a brothel and traveled with him to another state, was the next in line to testify against Johnson. He was eventually prosecuted and sentenced to the maximum penalty of a year and a day in prison.
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Wednesday, January 23, 2008 |
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Federal Judicial Pay: Part 1 |
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Posted by:
Hugh Hewitt at
9:56 AM |
In 2006, federal judicial salaries ranged from $212,000 for the Chief Justice to $165,200 for federal district judges. Cost-of-living adjustments aside, federal judges haven’t seen a pay increase since 1991.
This item from early last year in the WSJ.com was a reminder that it isn't enough to get great judges on to the federal bench. Fans of the rule-of-law and an independant judiciary must work to keep them there. Congress failed to address the issue of judicial pay last year. Perhaps they can get to it early this year before the presidential election roils the waters so deeply that bothing can be accomplished. The president and the Democratic leadership could make this one, bipartisan issue an example of fixing problems that really have no partisan aspect. If they don't, the federal bench will begin to lose its younger superstars, and the next president will find it increasingly difficult to recruit from his or her list of talented lawyers and law professors. The quality of judging will quickly plummet if the only candidates a president can find are those who think the pay level is just fine as it is.
Most readers will look at the $165,200 number and declare it a grand salary which they envy, and indeed it is high compared to the average American's salary.
But that number is also lower than many first year lawyers make when they leave law school and work for a big New York, Los Angeles or Washington, D.C. firm. Judges earn significantly less than what they would command in the private sector, often less than tenth of what they could be earning. Most of them love their work and feel a very high calling to preside over the judicial machinery, but for those judges with young families, the pressures are immense. If they leave they can quadruple their take home in a week, pay for college and save for retirement and a legacy for the children.
Or they can remain on the Bench, assuring justice is done in the courtrooms of the country. The vast majority of them would prefer to stay, and litigators would prefer that they do as well as experienced trial judges are a great benefit to lawyers with the facts and law on their side. Further, as more and more of the country's political problems get kicked into the courts, we don't want rookies or judges with expansive views of their roles or of the mystical powers of their robes presiding over the resolution of those cases.
The Chief Justice has campaigned to raise salary levels for judges. His year-end report on courts in 2006 was devoted to the topic, and deserves wide reading even a year later. The Chief Justice returned to the subject in his year-end report covering 2007:
Finally, I am resolved to continue Chief Justice Rehnquist’s twenty-year pursuit of equitable salaries for federal judges. Over the past year, congressional leaders and a wide range of groups that value a capable and independent Judiciary have made progress on this matter. The House Judiciary Committee passed a bill by an overwhelming bipartisan vote of 28 to five that would help reverse the steady erosion of judicial salaries since 1969, the benchmark year that Congress has utilized in recent years for assessing federal pay levels. The bill would restore judicial pay to the same level that judges would have received if Congress had granted them the same cost-of-living pay adjustments that other federal employees have received since 1989—not a full restoration but a significant one. The Senate Judiciary Committee was considering a similar bill when the 2007 Session ended. We are grateful for the continuing support of the bipartisan leadership in both the House and the Senate, as well as the support of the President, on this vital legislation. The legislation reflects a commitment on the part of the Legislative and Executive Branches to carry out their constitutional responsibilities with respect to the Judicial Branch, and I urge prompt passage as a first order of business in the new session.
The pending legislation strikes a reasonable compromise for the dedicated federal judges who, year after year, have discharged their important duties for steadily eroding real pay. This salary restoration legislation is vital now that the denial of annual increases over the years has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.
I do not need to rehearse the compelling arguments in favor of this legislation. They have already been made by distinguished jurists, lawyers, and economists in congressional hearings, letters, and editorials—and seconded by a broad spectrum of commercial, governmental, and public interest organizations that appear as litigants before the courts. I simply ask once again for a moment’s reflection on how America would look in the absence of a skilled and independent Judiciary. Consider the critical role of our courts in preserving individual liberty, promoting commerce, protecting property, and ensuring that every person who appears in an American court can expect fair and impartial justice. The cost of this long overdue legislation—less than .004% of the annual federal budget—is miniscule in comparison to what is at stake.
Read the Chief Justice's entire report for its overview of the state of the federal judiciary, but take a moment to let your legislators know that you support the idea of fixing judicial pay. The conventional wisdom is that Washington is broken. Well, the federal judiciary isn't, at least not yet. But an exodus of judges or the inability to recruit superstars in the future would quickly diminish the federal courts' well-deserved reputation as the finest and fairest courts in the world. Fixing judicial pay would be a great step towards butressing the rule of law, and one on which liberals and conservatives alike could agree.
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