High court's power grab may backfire

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.

However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."

Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."

In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."

That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."

Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.

Jihadist Jawad was caught in act

Both policy realities and military realities were shortchanged in today's Denver Post editorial, "The Reality of Closing Gitmo." Here's the link. To start with, policywise, the editors' admonition that “there should be no excuses” for failure to quickly shut down Gitmo is ridiculous, and flies in the face of both logic and international law. The Post editorial states: "The detainees should be properly adjudicated. If they can’t be charged, they must be freed." This is hogwash. The detainees at Gitmo are not simply common criminals; they are enemy combatants, subject to the laws of war (not criminal code) and may be detained until the cessation of hostilities. Holding these enemy combatants indefinitely, and the Gitmo facility itself, is fully compliant with international law, as noted in an Obama administration report (see my earlier post, It’s Official: Gitmo complies with Geneva Rules).

The Post editorial goes from debatable to irresponsible, however, in its characterization of the case of Mohammed Jawad, accusing the government of misdeeds “in the handling of the case of an Afghan held since he was a teenager on what Huvelle says is mostly hearsay evidence and on confessions gained through torture by Afghan captors. Mohammed Jawad is accused of throwing a grenade that seriously wounded two U.S. servicemen and a translator in Kabul.”

As it happens, I know a little bit about that case. I was deployed in Afghanistan at the time it occurred, just before Christmas 2002 (December 17th). The “two U.S. servicemen” wounded in the attack were from my unit at the time, the 5th Battalion 19th Special Forces Group (Airborne) of the Colorado Army National Guard.

The “two U.S. servicemen” wounded are not some faceless statistics (although Mohammed Jawad did his best to change that). They have names (and since it was reported at the time - including in Colorado newspapers - I can mention them here): SFC (Sergeant First Class) Michael Lyons, and SFC Christopher Martin. Their wounds were severe: SFC Martin almost bled to death from his leg wound, and had it not been for the alertness and skill of our unit’s medical personnel, might very well have died.

Incidentally, Mohammed Jawad was captured, at the scene, by local citizens (shopkeepers) outraged that an outsider (Jawad was not from Kabul) would attack “our” Americans (despite what you may have heard, at the time we were there, we were VERY popular with the locals for bringing peace, security, and yes, lots of American dollars to the Afghan capital city). Jawad was turned over to Afghan forces for a VERY brief period of time before being taken into custody by our Soldiers; allegations of “confessions gained through torture by Afghan captors” are baseless.

Post editors did a disservice to SFC Lyons, SFC Martin, and every Soldier in the Colorado Army National Guard with this inaccurate and misleading editorial.

Courts Out of Control

Nagel Diagnoses the Unrestrained Judiciary “If the root cause of judicial excess is the way lawyers think, what is to be done?” So asked CU law professor Robert Nagel in an important article four years ago, with insights even more timely as we anticipate the seating of Justice Sonia Sotomayor. “It is necessary,” Nagel answers, “to look for those lawyers who are confident enough and independent enough to challenge established patterns of thought and deeply ingrained instincts. And it is necessary to recognize that the nomination and confirmation processes may even then not be fully adequate to restrain the Court. Renewed attention needs to be directed at other political checks on the federal judiciary. [But] Congress so far has lacked the political will….”

From this important and seldom-voiced insight has grown Bob Nagel's new book, Unrestrained: Judicial Excess and the Mind of the American Lawyer. We at Backbone America regard his diagnosis as fundamentally important for any hope of meaningful judicial reform, not only at the federal level when (as they will eventually) conservatives regain power, but also in Colorado for the immediate present, when voters have a chance to dismiss four activist liberal justices from the state Supreme Court in 2010.

Here is the full text of Nagel's seminal article from the long-ago days of the confirmation drama surrounding Miers, Alito, and Roberts.


The Problem with the Court National Review, Nov. 21, 2005 By Robert F. Nagel Rothgerber Professor of Constitutional Law University of Colorado School of Law

Observers across the political spectrum see the next nomination to the Supreme Court as pivotal. With the withdrawal of Harriet Miers as a potential successor to the meandering Sandra Day O’Connor, President Bush has the opportunity to force a clear-cut decision on whether the Court should make a basic change of direction. As the upcoming confirmation battle takes shape, it is important to understand fully the distressing lessons of the past thirty-five years. By 1972 President Nixon had placed Justices Burger, Blackmun, and Rehnquist on the high court. He did so after making the judicial activism of the Warren Court a major campaign issue. Since then, Republican presidents have successfully nominated seven individuals, all for the announced purpose of reducing the amount of legislating from the bench. Even President Clinton’s two appointments, Stephen Bryer and Ruth Bader Ginsburg, were presented as moderates who would refrain from extreme forms of judicial adventurism. In short, for roughly thirty-five years Republican appointees have had numerical domination of the Supreme Court and, more importantly, during that period the American people have witnessed a continuous record of assurances from presidents and judicial nominees that the Court should apply, not make, law. While it is widely recognized that these assurances have not exactly been translated into action, it is difficult to grasp the full scope of the failure. The problem begins with the fact that neither the Burger Court nor the Rehnquist Court reversed even one of the Warren Court’s egregiously activist decisions establishing new individual rights. In fact, not long ago Chief Justice Rehnquist himself wrote a decision emphatically re-affirming the notorious rule of Miranda v. Arizona requiring that police inform criminal suspects about their right to remain silent before questioning them. The conservative instinct to respect precedent might be thought to explain this sustained refusal to reverse course, but it cannot explain why so many Warren Court rulings have been recklessly expanded. It cannot explain, for example, the rather complete transformation by the Burger Court of a principle against legally-enforced segregation into a demand that school districts achieve racial balance through extensive busing programs. Nor can it explain the Rehnquist Court’s expansion of earlier, limited rulings on separation of church and state into an aggressive campaign to stop government endorsement of religion, including non-denominational prayers at school graduations, student-led prayers at football games, and public displays of the Ten Commandments. Even this is only the tip of the iceberg. Since 1970 the Court has established new rights undreamed of during the Warren Court era. Everyone knows of a few outrageous examples, such as Roe v. Wade, the abortion decision. But the record does not end there. The original abortion decision, which was itself roundly condemned by legal scholars as having no legal justification, has been stubbornly extended to grant the right to minors and to protect even partial birth abortions. Indeed, in voting to re-affirm Roe, three Republican appointees, O’Connor, Kennedy, and Souter, made the most extreme claims for judicial power ever articulated in American history. Moreover, the record of activism is not confined to a limited set of highly visible issues. It extends to every corner of public life. It includes an extensive campaign to transform gender roles, as well as significant efforts to re-write defamation laws in all fifty states, to protect pornography and nude dancing and offensive language, to require free public education of the children of illegal aliens, and to normalize homosexuality. In a mostly forgotten foray, the Court even adopted Charles Reich’s theories about “the greening of American” to announce that public assistance is a property right and that sixth grade school children must be given a hearing before being suspended. The result has been far-reaching and destructive changes to public administration and educational discipline. It is, then, an understatement to say that thirty-five years of appointing justices for the announced purpose of reining in the Court has not worked. The most common explanation for this sorry state of affairs is, of course, the Souter Explanation, which notes that, when he was nominated, David Souter had almost no public record on any important issue and that he has turned out to be one of the most liberals members of the Court. Under this view, which had much to do with opposition to the Miers nomination, it is assumed that predictions about judicial behavior can become more accurate if there is enough information. There is, of course, some truth in the Souter Explanation, but it does not fully explain our inability to restrain the Court. One reason is that even people who did have extensive public records before their nomination—people like ex-Governor Earl Warren and ex-politician and judge Sandra Day O’Connor—sometimes turn out much differently than their records would predict. This leads to the Kennedy Explanation, which posits that nominees’ beliefs change radically once they are on the Court. Much of the pressure to change is thought to be social. The justices, it is said, live the Washington D.C. in close proximity to people who think the purpose of life is to exercise political power over others. They begin to read the Washington Post and they socialize with liberal law professors from places like Harvard. Or, as in the case of Justice Kennedy (who is especially fond of relying on foreign legal sources when interpreting the American Constitution), they attend international judicial conferences where the prevailing belief is that judges are the ultimate guardians of civilized values everywhere. Again, this explanation is surely partly true. But most justices were powerful appellate lawyers or ambitious executive branch officials before ascending to the Court. You would think, then, that many of the factors that are supposed to influence them after confirmation would have already influenced them before that and should have been detectable during the nomination and confirmation processes. A third, and fuller, explanation is so obvious that it is generally ignored. Those put on the Supreme Court are almost always successful lawyers. This means that they tend to be adept at—and therefore not inclined to be skeptical of—the way lawyers and judges think. And the way that lawyers and judges think is one of the basic reasons that we have such a powerful judiciary. Consider first the basic legal instinct to respect and follow the logic of prior cases. The consequences of this instinct are almost always underestimated. In fact, firmly entrenched lines of cases now establish the basically liberal direction of the Court, not in only in a few high profile cases, but across the board. It is now settled precedent that government cannot endorse religion, that a right to privacy is part of the Constitution (and that this right applies to an open-ended array of issues involving sexuality and family life), that pornography is protected by freedom of speech, and that equal protection requires the invalidation of any legislative distinction thought by judges to be irrational. Even reversal of one or two landmark cases, like Roe v. Wade, would not significantly alter the fundamentally interventionist jurisprudence of the Court. More generally, many lines of cases hold that courts must decide whether an interest asserted by the government to justify a statute is illegitimate or, if legitimate, how important it is. These same legal doctrines also require that judges decide whether the legislature has chosen the best or most effective way of achieving that interest. This is to say that it is now normal and required practice for judges to make essentially the same kinds of assessments about the wisdom and efficacy of legislation as legislators do. It is easy to say at a confirmation hearing that judges should not legislate from the bench, but dozens of authoritative cases require that they do. Indeed, the line between a legal and a political judgment is now obscured to the vanishing point. Respect for precedent is only one aspect of a broader inclination in the legal profession to honor authority generally and the judiciary especially. This inclination has natural appeal, especially for conservatives, but it has been taken so far in the nation’s law schools that the Supreme Court is commonly depicted as an indispensable political and moral leader. Its role in cases like Brown v. Board of Education was nothing less than to save the country from

profound moral paralysis; its role in cases involving Nixon’s Watergate tapes or the 2000 Florida election dispute, was to save the political system from chaos and fecklessness. It was this same grand view of the centrality of judicial power that caused those three conservative justices in Planned Parenthood v. Casey to write that opposition to the Court’s original abortion decision threatens the American constitutional system. At its best and highest levels, the practice of law involves the imposition of order on complex factual disputes and the marshalling of rational arguments. It is a profession that honors detachment, discipline, intellect, and, above all, words. As valuable as these traits can be, those who are trained to rely on them in their daily work can easily become distrustful or even disdainful of the political process because that process involves unruly conflict, raw power, and emotionality. In politics the strongest arguments do not always prevail, and words are sometimes less important than experience; failure, disorder, and even disaster are always possibilities. Judges, who occupy an even more controlled environment than do practicing lawyers, will often view the outcomes of the political process as irrational, unjustifiable, or excessively risky. Finally, it now accepted by the bulk of the legal profession, including many of its most influential scholars and successful practitioners, that there is no single correct method for interpreting the Constitution. As (now) Chief Justice John Roberts said at his confirmation hearings, the correct sources of constitutional meaning vary depending on the nature of the case. Sometimes a justice should look at the plain meaning of the text, but sometimes that can be overridden by historical information or by the overall logic of the document or by changes in social conditions or by evolving political practices or by philosophical considerations. This is what most sophisticated lawyers believe, and it is the way they shape their arguments. This variety of interpretive methods may sound reasonable, but in operation it means that judges are free to move from one method or combination of methods to another. This in turn means that the justices are free in a very real sense to give whatever meaning they wish to the Constitution. If the literal meaning of the text seems unfortunate in a particular case, it is permissible to shift to some other source of meaning until the result seems acceptable. A justice committed to widely accepted understandings about what it is to engage in interpretation, then, is committed to a method that permits the justice’s preferences to displace constitutional meaning. This is not left-wing excess; it is mainstream legal thinking. If the root cause of judicial excess is the way lawyers think, what is to be done? Certainly, it is necessary to continue to study the records of judicial nominees carefully. But accurate predictions about specific positions that a nominee will take once on the Court, even if they are possible, will not change the basic direction of the Court. To do this it is necessary to look for those lawyers who are confident enough and independent enough to challenge established patterns of thought and deeply ingrained instincts. Both Justices Thomas and Scalia demonstrate these capacities, so such lawyers exist. But to find them it is necessary to look beyond credentials and ideology. And it is necessary to recognize that the nomination and confirmation processes may even then not be fully adequate to restrain the Court. In this event, renewed attention needs to be directed at other political checks on the federal judiciary. Congress so far has lacked the political will to enact jurisdiction-stripping legislation or to reverse egregious judicial errors through constitutional amendment. This failure means that for some thirty-five years, at any rate, we Americans have been more interested in the melodrama of confirmation hearings than in real change.

The Constitution is still the supreme law

"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.

Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.

The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.

The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.

The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.

In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.

Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.

Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.

Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."

It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.

But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.

For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

Coalition opposes Sotomayor

(Denver, June 5) A coalition of Colorado groups and concerned citizens joined forces today in opposition to President Obama's nomination of Sonia Sotomayor to the United States Supreme Court. Organized as the Colorado Judicial Network, they are urging the US Senate confirm only highly qualified individuals who put the rule of law ahead of personal political agendas. As former State Sen. John Andrews put it: “Barack Obama said he wanted to remake the Supreme Court with his judicial nominees. Yet we are told by the administration that this is a 'middle of the road' judge who sides with conservatives more often than liberals. The White House is attempting to confuse the American people, who deserve an honest airing of the differences between the Obama-Sotomayor view of the law and the Roberts-Alito-Scalia-Thomas approach to the Constitution and the role of the Court.” “Sonia Sotomayor's statement that a 'wise Latina woman' would generally make better decisions because of 'the richness of her experiences' than a white male reveals the extent to which political and personal agendas have supplanted the rule of law in selecting nominees.” said former State Treasurer Mark Hillman. “Rule of law requires that laws be written, accessible, understandable and uniformly applied. Obama understands his nominee has little interest in impartially applying the law. He also understands that this undermines the rule of law. He just doesn’t want the American people to understand. “

“We reject the notion that Sonia Sotomayor is a 'racist,'” said Jim Pfaff who heads the Judicial Confirmation Network's efforts in Colorado. “What motivates her to say a 'Latina woman' would make a better decision than a white male—as with her statement in 2004 that the courts make law—is a belief that the Rule of Law can be ignored whenever she wants to accomplish a favored political end.”

The Colorado Judicial Network is an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States. They seek judicial nominees who stand for the Rule of Law and are committed to uphold the principles of judicial restraint and fidelity to the original meaning of the United States Constitution

The Colorado Judicial Netowrk Steering Committee includes:

** John Andrews, Chairman, Backbone America Citizens Alliance and former Colorado Senate President.

** Jon Caldara, President, Independence Institute.

** Mark Hillman, former State Treasurer.

** Jeff Crank, State Director, Americans for Prosperity.

** Jim Pfaff, former State Director, Americans for Prosperity and President/CEO, Colorado Family Institute.

Pfaff serves as press contact for the coalition and can be reached at jim@iresearchanddata.com or 303.957.8600