MILNET Opinion -

MILNET Opinion
Supreme Injustice, October 27, 2004

"International law is no longer a specialty. ...It is vital if judges are to faithfully discharge their duties...Since Sept. 11, 2001, we're reminded some nations don't have the rule of law or (know) that it's the key to liberty...International law is a help in our search for a more peaceful world."

- Justice Sandra Day O'Connor, Georgetown Law School, October 27, 2004

One of the reasons that there is a long standing fight over the justice system between left and right in this country is quite well demonstrated by the 80 year old justice quoted above. Mz. O'Connor, like many liberal minded lawyers who have risen to become judges in our nation, has a horrible disease. Like many powerful people, she believes she can legislate despite not being elected to her post.

Worse, she like many or her colleagues in the justice system have turned to international law to support their agenda. Unfortunately, Justice O'Connor servers on the U.S. Supreme Court. Her job, it seems she has forgotten, is to apply the U.S. constitution to cases before the Supreme Court, not take guidance from other nations in the world. In fact, it would be a gross miscarriage of justice if O'Connor were to succumb to her disease and attempt to apply international law to any case before the court. In fact, it would be grounds for dismissal from the court. While Justices are appointed for life, gross misconduct or inability to perform the office are sufficient reason to dismissal from the court.

Moreover, it is inconceivable that any U.S. Supreme Court Justice would consider International law in their deliberations. So why did Justice O'Connor extol law students at Georgetown University on such a controversial subject?

Perhaps the reason is that she is looking to build a case in her own mind for her rather dismal record as a Supreme Court Justice. Rarely has she resisted the temptation to legislate from the bench. And being one of the swing votes, this makes her extremely dangerous to the U.S. Constitution and the U.S. law derived from that document.

In the past the Supreme Court has gone out of its way to consider international law in any of its deliberations. Even when U.S. treaties with foreign nations are cited, the court has blinded itself to what the Executive branch has committed the U.S. to with the approval of Congress. The focus has always been on the U.S. Constitution and U.S. Statutes. Treaties that defy U.S. law so far have been abrogated or the Court has refused to hear such cases on the premise that diplomacy created the problem and diplomacy must correct it without the interference of the Court.

Yet here comes O'Connor citing her opinion that the court has been wrong in the past. Worse, she is attempting to persuade young law students of her case, doing so with the power and prestige of the highest court in the land. Not happy with attempting to legislate from the bench, she goes one step further and is attempting to brainwash future lawyers and potential judges in one of our most prestigious schools.

Yes, she has a right to an opinion, as we all do. However, with authority comes responsibility. For instance, it is not right for the President of the United States to express a public opinion on a trial, especially when potential jurors will be listening. Similarly, it is reprehensible for a Supreme Court Justice to express an opinion as if it were a precept for future judicial decision making. Her responsibility is to carefully express her opinion couched in terms that make it clear that it is indeed her personal opinion and does not necessarily deserve any more merit than any of the students opinions.

But then, that would be impossible. Law professors think their opinions are worth more than the courts and are happy to allow their students to place those opinions on some higher plane than just any other lawyer. Therefore it is not a big surprise to find that her eminence Justice O'Connor is held at even a higher level. The truth is that she is only one of a gaggle of judges who together make decisions, and Mz. O'Connor is more often than not in the dissenters group attempting to change the U.S. legal landscape like a legislator with having been elected to that position.

So is it any wonder that the left is focused on interfering with the appointment of judges, and the right is desperate to take the opportunity to find impartial judges who do not wish to legislate from the bench. The battle has swapped sides at each change in administration. When the left is in control, the right does their best to refuse to approve judicial appointments of bench legislators, and when the right is in control, the left will do anything to prevent strict constitutionalists from being approved.

In fact, anyone looking at the record of the U.S. Congress over the past three decades would easily see the system is broken. Unfortunately, the Constitution is both the solution and the problem. The Constitution is quite clear on the subject of the judiciary. The words "advise and consent" jump out -- in fact, every elementary school textbook will focus on those words. They are indeed important. The words are used by Congressional oversight committees to give themselves an inordinate amount of power -- the power to refuse to approve Presidential appointments. In the case of U.S. judges, Congress has essentially usurped the President's power to appoint justices. Unfortunately, the words also create the problem that to correct the broken system, one must amend the U.S. Constitution.

And of course that is the dilemma. How does one adopt a strict Constitutionalists philosophy and then on the other hand propose that the Constitution be amended? The answer to that is simple. The law is immutable unless it is legally changed. If we don't like our laws, there is a process in place to change them. Congress does this all the time. For instance, the appropriations process is replete with monies promised and monies withdrawn. Laws are created and the courts refute them and eventually some of these problematic laws wind up being stricken down by the highest court in the land. In the end, the Supreme Court is the mechanism for matching laws derived from the Constitution against that standard. And Congress has the power to modify that very same standard, if and when that standard is believed by an overwhelming majority of States of the Union. Once changed, than laws derived from the no longer applicable sections are stricken and new law may have to be written to replace those stricken. All of this is part of the U.S. Constitutional Amendment process. While amendments are rare, there have been more than twenty applied since the original signing of the American Standard.

Thus the process is in place, yet the left has continued to fail in changing U.S. written law to support their agenda. The answer to their dilemma? Change law from the bench where no majority is necessary, change the law from the bench where little can be done to reverse those changes. And if you don't believe this chain of logic, then take a look at the number of cases where circuit courts in the liberal bastions of this nation have made controversial decisions that have been overturned. The Ninth Circuit Court of Appeals that severs the liberal Northwest is the most reversed court in the land. It is known as the "Activist Court". And the most revered court by the left, taking on law by pushing typical liberal issues as their interpretation of law where no such law exists.

Whether you believe the issues are important or that the laws should change is not the problem here. The problem is that the laws of this land can be changed through an established process that was created to ensure fair and impartial application of legal standards. The activist court concept attempts to circumvent that process in favor of personal political agendas.

Justice O'Connor is an example of how that effort has reached into the highest court of the land, and if left unchecked, will eventually make a shambles of our legal system, and threaten the U.S. with legal decisions based on politics rather than legal standard. MILNET believes that Justice O'Connor's speech is the final act of an incompetent Supreme Court Justice and comprises misconduct. It calls into question her ability to distinguish the basic essentials of her position and therefore calls into question her ability to faithfully serve her oath of office. She should be censured at the least and stripped of position at the worst.

- Michael Crawford for MILNET

Sources:

O'Connor Extols International Law, Fox News/A.P., October 27, 2004