Judicial power

By Peggy and Kerry McCarthy

Republicans, independent voters, and an increasing number of Democrats await the 2010 midterm elections as a way to express dissatisfaction. However, by the time we vote again, an increase in unelected bureaucrats and appointed judges may have changed the political landscape.

Our judiciary presumes to interpret the Constitution in such a way as to transfer power away from those who are responsible to their electorate and to the regulatory class composed of government agencies and bureaucrats. This poses a direct challenge to the sovereignty of the people. Courts increasingly intrude into areas of civil society, reliably expanding government control in areas as diverse as eminent domain and expressions of religious freedom. On the other hand, when it comes to acting against government control over industry (which smacks of fascism), they say nothing.

The Federal government took a direct role in supporting unions by taking over GM and Chrysler. Just as a public option in medical insurance would make it impossible for private insurers to compete, eventually Ford may eventually be driven out of business or put into government protection. The government has taken over the banking industry, the student loan program and is on the verge of controlling all mortgages and mortgage loans in the country. One version of the healthcare bill provides for the Internal Revenue Service to electronically remove funds from peoples’ bank accounts.

Americans should be able to rely on Federal courts to find these activities unconstitutional, except that our constitutional firewall has been breached.

An unsettling and mostly unrecognized facet of the controversial Terri Schiavo case illuminates the disposition of judges to take control. Judge George Greer of the 6th circuit court of Florida issued an order restraining the Department of Children and Families from fulfilling their statutorily designated role of protecting children and disabled adults. He further directed “that each and every singular sheriff of the state of Florida are hereby directed to take such actions or action as is necessary to enforce the provisions hereof.”

Florida Governor Jeb Bush’s avoidance of a constitutional crisis highlights his impotence as governor, but, chillingly, also sets a precedent: a judge presiding over two counties effectively expanded his authority to command the sheriffs in every county and override the governor of his state. Others may not have recognized his actions as a power grab, but his peers did; Mr. Greer received congratulations from judges all over the country for his stand.

An autocratic judge’s attempt to increase his power is not so surprising. What’s amazing is that there was no rumble of protest from the governor or the sheriffs. Why? Maybe they know something we don’t. The secret is: Those whose power is transferred are often complicit. They willingly shrug off accountability. When people protest, they are not responsible.

The progressive project of rendering elections irrelevant proceeds apace.

What is known as the Progressive Era could be said to have begun in1887 with the creation of the Interstate Commerce Commission, in reaction to legitimate concern over railroad freight rates. Measures introduced by Theodore Roosevelt and Woodrow Wilson proved the workability of bureaucracy, and Franklin D. Roosevelt’s New Deal accelerated and gave permanence to big government.

The timing of Vermont Democrat Senator Patrick Leahy’s bill proposing to expand the judiciary (ostensibly to reduce the workload and speed up the judicial process) is interesting. Democrats now enjoy filibuster-proof control of the Senate, a huge majority in the House of Representatives, no criticism from the press, and a far-left president. In truth, Mr. Leahy’s bill effectively packs the courts. Healthcare and government takeover of business can arguably be seen as a diversion: the big game is control of the judiciary.

Mr. Leahy is a member of a small, power-wielding club who always win their elections. They know that when they use Blue Dog Democrats to pass unpopular bills such as cap and trade and the healthcare bill, there will be electrical repercussions. Liberals are willing to throw their moderate colleagues under the bus once their aims have been achieved.

It’s not about elections any more. Elections come and go but judges are forever.

-Peggy and Kerry McCarthy are writers living in Indiana.