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Dismantling democracy through judicial activism

By Tom Jipping
web posted February 18, 2002

While Senate Democrats are blocking President Bush's judicial appointments, guess who's minding the judicial store and guess what are they up to? Liberal activist Clinton judges, that's who, and they are up to no good.

Out on the left coast, for example, more than 70 per cent of the full-time judges on the U.S. Court of Appeals for the Ninth Circuit are Democrat appointees. Two of President Clinton's 14 appointees to that court are among his most radical ever and they are busy dismantling what the people of California have spent years building.

In 1994, nearly 72 per cent of California voters decided no longer to treat perpetual criminals as if they were first-time offenders. Instead, each additional felony would be treated more seriously. They enacted the "Three Strikes" law requiring that a third serious or violent felony would bring at least 25 years behind bars.

Last November, Judge Richard Paez ruled that using this law to do exactly as Californians intended violates the Constitution's ban on cruel and unusual punishment. He insisted that the sentence was "grossly disproportionate" to the crime, a standard urged by only three Supreme Court Justices concurring in a 1991 case. But hey, it was all an activist needed to get where he wanted to go.

Well, now fellow Clinton appointee Judge Marsha Berzon has done the same thing in two cases. Earnest Bray had in the 1980s been convicted of four counts of robbery. In one incident, a co-defendant threatened to kill the woman they were robbing, and actually fired three shots. In another robbery, his co-defendants punched and kicked their victim.

Had he not chosen this criminal path, prosecutors could have charged him with petty theft when Bray stole several videotapes in March 1994. Instead, they charged him with felony petty theft "with a prior." Conviction of this felony became his third strike when added to his earlier robbery convictions. He received the mandatory minimum of 25 years in prison.

Richard Brown had in the 1970s and 80s been convicted of at least five serious or violent felonies including second degree murder, assault with a deadly weapon, and robbery. He also had a string of other convictions for felony vehicle theft, burglary, battery, second-degree robbery, and possession of drug paraphernalia.

Brown's life of crime had similar consequences for him. When caught for shoplifting in 1995, prosecutors charged him with petty theft with a prior.With three felony strikes, he too received the mandatory minimum of 25 years in prison.

Joined by liberal activist extraordinaire Judge Stephen Reinhardt and fellow Clinton appointee Judge A. Wallace Tashima, Judge Berzon did the same thing her colleague Judge Paez had done last fall. Going to prison for 25 years for petty theft or shoplifting would, by itself, strike most people as a little much – or, in legalese, "grossly disproportionate. Since neither of these career criminals had received that sentence for that crime, however, she had her work cut out for her.

Judge Berzon repeatedly said that petty theft itself, what she called the "core conduct" of the crime for which Bray was convicted, "is ordinarily punished by no more than six months in jail." Indeed it is, but Bray had chosen to commit other crimes. He chose the serious of crimes that resulted in his conviction for petty theft "with a prior." That "with a prior" part is what takes him outside the ordinary realm of first-time offenders receiving slaps on the wrist.

Only by re-framing the facts in this case, by acting as if this were a first-timer rather than a habitual felon, could Judge Berzon get where she wanted to go. She's a true activist judge, making things up and moving things around to achieve the result she wants to reach. Like the case last year before Judge Paez, these were brought by law professor Erwin Chemerinsky, a dedicated leftist crusader willing to use the courts to thwart the democratic choices of his fellow citizens. Activist lawyers and activist judges are a potent combination, and here they are dismantling democracy itself and putting the safety of law-abiding citizens at risk.

This is the judicial legacy of Bill Clinton. With more than 100 judicial vacancies and more than 50 Bush nominees languishing in the Democratic Senate, these Clinton activists are striking at will. They are continuing the revolution, substituting their values and political agenda for those of the people.

Tom Jipping is the director of the Free Congress Foundation's Center for Law and Democracy.

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