The old question of judicial overreach, long a concern of conservatives, seems to be taking a turn for the worse right now. With the Republicans in the Senate trying to break a deadlock over nominees, one judge in Florida has taken it upon himself to decide that Terri Schiavo should die. I’ve written before about the Terri Schiavo case here, but I’ve been thinking (and listening to Rush Limbaugh) a lot over the last few days, as I drove up to South Dakota and back. There is something about the current approach to the judicial problem, which focuses almost entirely on nominating the right judges, it seems, which bothers me. And over the many hours I’ve spent in the car in the last four days, I think I know what it is that bothers me about this approach.
You know the old saying, of course, “Power corrupts.” I don’t think this is quite accurate, since God has absolute power and He is not in the slightest corrupted. But given the sinful human nature, it’s not too far off the mark. Perhaps it might be better said, “Power reveals.” That is, power shows what’s in a man’s heart. I am convinced that this is the reason why celebrities and athletes seem to so frequently have such terrible morals. I don’t think they’re really worse than other people; it’s just that their money and fame remove most obstacles to doing whatever they want to do.
In the case of judges, this principle would seem to explain why judges tend to drift leftward. Conservatism hold strongly to the principle of limited government, and it is modern day liberalism which looks to government to solve all problems, and therefore modern liberal political theory which offers any politician more power. If a conservative senator or a representative tries to seize power this way, his constituency can remove him. But there is no check on a judge except higher courts, and of course the highest court of all, the Supreme court, is just as susceptible to this problem as the others. A number of judges in recent years have drifted leftward, like Souter and O’Connor, but I don’t think any have become more conservative over the years.
This means that in order to correct the problem of judicial tyranny, the nominations process is not enough. There has to be some accountability for judges after they are appointed; even Supreme Court judges. The constitution of the United States set up various levels of government to act as checks on each other, and some were more democratic and some less. The judicial branch is the least democratic of all- they are not elected and are appointed for life. But this does not mean they are unaccountable. Their jurisdiction can be limited, and they can be impeached. Further, they depend on other branches to enforce their decisions.
If I were the governor of Florida I would use my executive power to protect the life of Terri Schiavo, and I wouldn’t care what some judge said. Judges are supposed to interpret law. But if a judge oversteps his authority, I would not allow myself to be subject to his tyranny. It’s one thing to have a difference of opinion. It’s another for a judge to seize power that is not his.
And if I were a congressman, I would push to impeach the judge that allowed Schiavo to be killed, whether a federal judge or a supreme court judge. I think that the other branches of government have to step in to rein in out of control judges, using their legitimate constitutional powers. They’re called “checks and balances” for a reason. This problem will not be solved just through the nominations process, because a lot of judges that are nominated will naturally abuse their power, if there are no consequences for them doing so, and it doesn’t matter what their political leanings are going in. It’s human nature, and it’s why we all have to be accountable.
I am neither a governor nor a senator, of course. I’m a pastor, so I’ll keep doing what I’ve been doing, which is preaching the gospel and teaching people God’s principles of right and wrong. But Republicans had better start paying attention. Many of us support them because they seem to be the party that is better in touch with human nature, being limited and imperfect, which is why limited government is so important. But if they become the party of government solutions for all problems (just different solutions), they will lose a lot of support.
Start reining in those judges. Don’t just appoint ones you like better. Start slapping down the ones who overstep their authority. Otherwise, the problem will never go away.