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The judiciary: The strongest and most dangerous branch?

By Tom Jipping
web posted March 4, 2002

Senator Dianne Feinstein, California Democrat and Judiciary Committee member, let it slip on NBC's "Meet the Press" Sunday, Feb. 24. She said she would oppose appeals court nominee Charles Pickering because he had "right-wing views, both politically and personally."

Feinstein: At least she admitted what we all knew
Feinstein: At least she admitted what we all knew

Now ask yourself this question: why are political or personal views a qualification to be a judge rather than, say, politician? What is it that Senator Feinstein thinks judges do that makes their political and personal views important? This is what the debate over the power and appointment of judges is all about.

A judicial nominee's political or personal views are relevant for only one reason; because one thinks those views determine judicial rulings. That is, judges are free to make decisions based not on the law, but on their own personal views. Stating that view is enough to expose its danger to our liberty. Government decisions based on political or personal views are political decisions, made by those we elect to make our laws and over whom we have electoral control. Judicial decisions must be based on law, not on political or personal views. Our liberty depends on thus separating law from politics.

You are no doubt familiar with the phrase "a government of laws, and not of men" but probably don't know where it comes from. It appears at the end of Article 487 of the Massachusetts Constitution of 1780. More important than this goal, however, is the necessary condition for achieving. Article 487 says that "the judicial [branch] shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men." If judges make law, if they base their decisions on their political or personal views, this is a government not of laws, but of men. And we have no liberty.

The U.S. Constitution gives "legislative power" to Congress in Article I and "executive power" to the president in Article II. As students of civics learn at least from their books, the legislative branch makes laws and the executive branch enforces them. Political and personal views are most important for legislators, yet even there many would say the most relevant political or personal views are those of the constituents, not the representative.

Political and personal views are less relevant for the executive. Remember John Ashcroft's confirmation hearing last year? Democrats hammered him about the need to put aside the political and personal views that led his previous service as a Senator. Crossing over to the executive branch, they said, required Ashcroft to enforce all the laws, even those inconsistent with his political and personal views. He pledged to do so.

Political and personal views are not at all relevant for the judiciary. As Chief Justice John Marshall wrote in Marbury v. Madision, it is the duty of judges simply to "say what the law is" and apply it to the facts of their cases. That's the "judicial power" assigned by the Constitution in Article III.

This system of separated government powers, as Justice Antonin Scalia wrote in 1987, is "the absolutely central guarantee of a just government." Because political and personal views are irrelevant there, America's founders believed the judiciary would be the "weakest" and "least dangerous" branch. Senator Feinstein's opposite view, that political and personal views are not only relevant to but even dispositive of the appointment of judges, makes the judiciary the strongest and most dangerous branch.

America is at a crossroads. The fundamentals of freedom are all up for grabs. Last year, Senator Charles Schumer held hearings to promote the idea that Senators should base their judicial confirmation votes on a nominee's ideology. Now Senator Feinstein says the same thing, that political and personal views determine fitness to serve in the judiciary. Nothing could be more dangerous to liberty. It's time to decide.

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

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