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Letters to Editors

As we accrue knowledge in this area, becoming pseudo-experts, we feel compelled to write letters to editors when we strongly agree or disagree (mostly disagree) with an article on judicial misconduct. So far, we're unpublished. But we keep trying.

We intended this page to be a small collection of letters we've sent, but it's morph into a collection of our letters plus published letters from others that make our point.

From the Left,
Constraining the Judiciary Weakens the Rule of Law
(The Wall Street Journal, October 25, 2006)

It's probably now obvious that we peruse the Wall Street Journal editorial page. And not much else. It's pointless to read publications from the Left. To its credit, The Journal does a reasonable job of presenting both sides, as this letter demonstrates.

As if you needed more evidence (and we're getting tired of it ourselves), it should be obvious that when the Left uses the phrase "Independent Judiciary" (or any variation thereof), it's really code for "we know we can't get our agendas past the people via their elected Representatives, the Legislature, so we end run using our like minded compatriots (judges) in the Judiciary. As long as we're winning, we don't want anyone overruling our guys." We've said it before: wait until the Supreme Court swings Conservative, and see if those on the Left still want an unchecked "Independent Judiciary." Hypocrites! But we digress.

Below is a letter to the editor from the President of the New York City Bar Association. Do we have to provide links to show this is a doubly Liberal organization? Not only is it a Bar Association, it's based in New York City! But first, to get the Conservative view (by definition, since this was from the Founding), some words from a "letter" from Alexander Hamilton, one of the Founders:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs [sic] of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

But take that in context with what he said in the same paper:

It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can NEVER attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.

Federalist No. 78

Compare and contrast that with this letter.

John Yoo applauds the efforts of the president and Congress to constrain the power of the third co-equal branch of government, the judicial branch. However, democracies require a strong judiciary to assure that the rule of law is more important than any leader. The independent and importance of this branch must be defended when potentially unconstitutional laws... [and then he goes on to talk about upholding one of his agenda items.]

Barry Kamins
President
New York City Bar Association
New York

It seems to us the definition of "co-equal" means that no one Branch can force its views on the others. Like New Jersey's Supreme Court ordering the Legislature today to codify homosexual 'marriage.'

A Public Frustrated With Judges Who Use Their Benches as Thrones
(The Wall Street Journal, October 10, 2006)

Somehow we missed Sandra Day O'Connor's predictable rant against judicial accountability.(September 27 print edition of The Wall Street Journal) In this case, she was attacking Jail4Judges, which we have linked in our Solutions page. The argument is always framed under the guise of "judicial Independence."

We saw Mrs. O'Connor's article mentioned on the Opinion Journal website, but we don't have a subscription and couldn't find it copied on the web at that time. (But you can now.) Still, we could have written a rebuttal without seeing it, it was so predictable. But of course, we wouldn't have been able to rebut specifics. Fortunately, a bunch of like minded citizens — and an active judge! — made the case for us. Below are some excerpts from their letters in the Journal.

It is simply disingenuous to argue that anger against judges is being stirred up by fanatics and opportunists while dismissing the judiciary's persistent undermining of the fundamental constitutional protections, such as the right to life in Roe or private property right in Kelo, as mere "erroneous decisions."

Justice O'Connor's argument ultimately rests on the false assumption that only the executive branch, legislature or public might pose a threat to "the complete independence of the courts." A more reasonable reading of Hamilton is that the responsibility for maintaining the distinction between the judiciary the two others branches rests at least equally upon the judiciary. That has certainly been the opinion of the Supreme Court itself at least since Jefferson requested its advice on foreign policy and the court demurred, explaining to President Washington that there is a constitutional prohibition against such advisory opinions because they usurp legislative and executive powers.

The result has too often been opinions like Kelo in which the rights of minorities or special interests are held to be pre-emptive and the usurpation of legislative and executive powers by the judiciary the means to a socially desirable end.

Edward H. Stewart, Jr.
Austin, TX

Justice O'Connor sets up a straw-man argument when she decries the intimidation of judges ...

But there is a deeper issue embedded in her recognition that there is an all-too-pervasive lack of trust in judges — both state and federal. All too many judges have lost sight of their responsibility of interpreting law, not making it.

Ralph Adam Fine
Judge
Wisconsin Court of Appeals
Milwaukee

The reality is that plenty of judges have taken on lawmaking duties to shape the world to conform to their beliefs, opinions, and values. Ms. O'Connor fails to describe that the founders did not intend this, nor did they write it into the constitution. The activities of JAIL 4 Judges seem like a natural reaction to judges gone wild.

Jeffrey Ihnen
La Crosse, WI

Justice O'Connor cites Federalist No. 78 and Alexander Hamilton for the proposition that the Framers intended an Independent judiciary. Maybe so, but I defy her to find in the Constitution a provision that states that the Supreme Court has the final say on what is constitutional. That power was arrogated to the Supreme Court by the legerdemain of John Marshall in McCullough v. Maryland.

Kenneth G. Coveney
San Diego

On Judicial FREEdom
(The Wall Street Journal, September 26, 2006 )

FREEdom isn't free

Whether the motives of the CRC are altruistic or partisan, we do not know. (Tuesday's editorial titled Judicial FREEdom.) But as Conservatives ourselves who have made a reluctant hobby studying judicial misconduct, we applaud the idea of Congress limiting judges' junkets for two reasons.

First, the judiciary needs oversight. That's Congress' Constitutionally mandated job as part of a system of check and balances. Letting judges rule themselves is like letting teenagers rule themselves. It's pregnant with mischief. Congress needs to exert its parental oversight, if only for the exercise and to remind the judiciary who's boss. The hope is that emboldened, Congress will take back its authority so it can kick some judges out of the house. (Impeachment. Judge-President Kollar-Kotelly comes to mind.) Already like teenagers, you can see the Judiciary rebelling as it defiantly declares that "...NO other entity should seek to limit judges." What? Not even Congress?

The second reason to let Congress limit junkets is a common sense one. Taking a line from the Judicial Code of Conduct, "An independent and honorable judiciary is indispensable to justice in our society." Attending junkets that foster agendas does not foster an independent judiciary. Rather, it gives, as a minimum, the appearance of impropriety, which Justice Scalia says requires recusal. Failure to recuse constitutes judicial misconduct, a valid complaint.

Jurors, right or wrongly, are not allowed to educate themselves on a case before them. Then neither should judges. Lady Justice is blindfolded so she can weigh matters fairly and so no one can accuse her of bias. Judges need same. Congress needs to set curfews.


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On the ABA
(The Wall Street Journal, July 31, 2006)

ABA left in dust

As if one needed more proof that the ABA is a liberal interest group, here is an excerpt from a public comment letter our Foundation sent the ABA last year regarding their proposal to neuter the Judicial Code of Conduct. Judge for yourselves.

We feel it necessary to sound a klaxon to all those in the judiciary who are people of faith, having convictions about sin (be they Bible believing Christians, Roman Catholics, Mormons, Qur’an believing Muslims, orthodox Jews, etc.), or those who are members of the Boy Scouts of America or like-minded organizations, or those who consider certain chosen behaviors to be, by their very nature, deviant, unhealthy and base. We are outraged that the Commission, an arm of the ABA, is forcing the homosexual agenda on the judiciary, under the guise of "tolerance," by adding "sexual orientation" to the list of factors that define "discriminatory organizations" in Rule 3.04. As currently crafted, this Rule would require any judge who is a member of the Boy Scouts of America to choose between his job and the organization, for that organization staunchly and publicly prohibits homosexuals from being troop leaders. (Thus, some claim the BSA "discriminates.")

While the Commission is quick to point out that this Rule does not affect religious membership (at present), that proviso is only in a Comment. A Rule is a rule but a Comment is only a comment, as the Commission notes on p4 of its Introductory Report. This is a slippery slope and whether calculated or not, can have the ultimate, undesirable, possibly unconstitutional effect of removing people of faith from the judiciary.


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