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> Activist judges, what should be done?
hayleyanne
post Apr 14 2005, 12:48 PM
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Every day, it seems, I hear more discussion of what to do about activist judges. The Schiavo case is just the most recent example of an out of control judiciary. Before that it was the Massachusetts ruling that forced the legislature to legalize gay marriage and thumbed its nose at the offer to institute civil unions. Judicial nominations are being fought tooth and nail by both sides. How telling is that? If they did not wield such enormous power that would not be happening. Democrats are quick to cite how many of Bush’s nominees have been approved and point to a relatively smaller number who have not. But that is not the point. Those judges who sailed through the nomination process were lower court judges. Given the relatively few cases the Supreme Court agrees to hear, it is the appellate judges that have the final say on constitutional law. And it is these nominations that the democrats have virtually shut down. I have a few questions for debate on this issue:

(1) Is the time ripe to finally reign in an activist judiciary?

(2) If so, what options would you suggest? There are a number of them in this regard. Ex. allow a supermajority in Congress to overturn a judicial opinion; require a supermajority of justices to sign on to a Supreme Court opinion that overturns a democratically enacted law. etc.

(3) Or, should we accept that the judiciary is the final say on every cultural issue presented to it and take an aggressive role fighting the appointment of liberal judges? Ex. the nuclear option.

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CivusAmericanusS...
post May 12 2005, 02:10 AM
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(1) Is the time ripe to finally reign in an activist judiciary?

(2) If so, what options would you suggest?

(3) Or, should we accept that the judiciary is the final say on every cultural issue presented to it and take an aggressive role fighting the appointment of liberal judges?


As a conservative I'm a firm believer in judicial restraint and more strict interpretation of the Constitution. As such I think anytime is good moment to tackle this problem. However, I do believe that conservatives as well as liberals can be judicial activist. A judge that believes abortion should outlawed in court is just as wrong as one of the Supreme Court justices that voted in the majority of the Roe v. Wade decision. Judges should reinstate the constitutional balance between the states and the federal government and enforce the laws as they were intended to be used. I do not believe that the rights and powers of judges should be limited. An independent judiciary that will make opinions not biased by public opinion is important to maintain. The only step that could preserve the courts as they are is to remove filibusters on judicial nominees so that conservative judges can be passed without legislative games. This is only a short-term solution, but I feel that tampering with the Founding Fathers' setup of the judiciary is incredibly dangerous. There need's to be a final arbiter.
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hayleyanne
post May 12 2005, 11:06 AM
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QUOTE(CivusAmericanusSum87 @ May 11 2005, 09:10 PM)
(1) Is the time ripe to finally reign in an activist judiciary?

(2) If so, what options would you suggest?

(3) Or, should we accept that the judiciary is the final say on every cultural issue presented to it and take an aggressive role fighting the appointment of liberal judges?


As a conservative I'm a firm believer in judicial restraint and more strict interpretation of the Constitution. As such I think anytime is good moment to tackle this problem. However, I do believe that conservatives as well as liberals can be judicial activist. A judge that believes abortion should outlawed in court is just as wrong as one of the Supreme Court justices that voted in the majority of the Roe v. Wade decision. Judges should reinstate the constitutional balance between the states and the federal government and enforce the laws as they were intended to be used. I do not believe that the rights and powers of judges should be limited. An independent judiciary that will make opinions not biased by public opinion is important to maintain. The only step that could preserve the courts as they are is to remove filibusters on judicial nominees so that conservative judges can be passed without legislative games. This is only a short-term solution, but I feel that tampering with the Founding Fathers' setup of the judiciary is incredibly dangerous. There need's to be a final arbiter.
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I agree that the ideal way to go is to simply have strict constructionists on the bench. We need to have a whole bunch of Scalias on the bench. But that ain't gonna happen. The process is too politicized. Even if we do get a few good judges on the bench in the next 4 years-- we have no assurance that we will get to have good ones appointed to the Supreme Court and that is what counts. All we know is that Rehnquist is stepping down. No real progress there. The best hope is that Stevens steps down soon. But I am digressing.

I don't like to tamper with the constitution, however, we have gotten to a point where we must seriously consider a "check" on the judiciary. That doesn't mean we give Congress the power to overturn a decision. What I would like to see is a requirement that the Supremes be held to a supermajority requirement whenever they are overturning laws as unconstitutional. This would force decisions that go beyond the political lines. And who knows, it may even get them to focus on the Constitution itself instead of the policy they want to see instituted. hmmm.gif
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lordhelmet
post May 12 2005, 07:28 PM
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QUOTE(hayleyanne @ May 12 2005, 07:06 AM)

QUOTE(CivusAmericanusSum87 @ May 11 2005, 09:10 PM)
(1) Is the time ripe to finally reign in an activist judiciary?

(2) If so, what options would you suggest?

(3) Or, should we accept that the judiciary is the final say on every cultural issue presented to it and take an aggressive role fighting the appointment of liberal judges?


As a conservative I'm a firm believer in judicial restraint and more strict interpretation of the Constitution. As such I think anytime is good moment to tackle this problem. However, I do believe that conservatives as well as liberals can be judicial activist. A judge that believes abortion should outlawed in court is just as wrong as one of the Supreme Court justices that voted in the majority of the Roe v. Wade decision. Judges should reinstate the constitutional balance between the states and the federal government and enforce the laws as they were intended to be used. I do not believe that the rights and powers of judges should be limited. An independent judiciary that will make opinions not biased by public opinion is important to maintain. The only step that could preserve the courts as they are is to remove filibusters on judicial nominees so that conservative judges can be passed without legislative games. This is only a short-term solution, but I feel that tampering with the Founding Fathers' setup of the judiciary is incredibly dangerous. There need's to be a final arbiter.
*




I agree that the ideal way to go is to simply have strict constructionists on the bench. We need to have a whole bunch of Scalias on the bench. But that ain't gonna happen. The process is too politicized. Even if we do get a few good judges on the bench in the next 4 years-- we have no assurance that we will get to have good ones appointed to the Supreme Court and that is what counts. All we know is that Rehnquist is stepping down. No real progress there. The best hope is that Stevens steps down soon. But I am digressing.

I don't like to tamper with the constitution, however, we have gotten to a point where we must seriously consider a "check" on the judiciary. That doesn't mean we give Congress the power to overturn a decision. What I would like to see is a requirement that the Supremes be held to a supermajority requirement whenever they are overturning laws as unconstitutional. This would force decisions that go beyond the political lines. And who knows, it may even get them to focus on the Constitution itself instead of the policy they want to see instituted. hmmm.gif
*




I like that idea but I also like the idea of more aggressive oversight of the judiciary by the legislature. Perhaps it could prevent debacles like what just occured in Nebraska when Clinton appointed District Judge, Joseph Bataillon essentially said that the voters of Nebraska had zero power when he overturned the state constitutional amendment against gay marriage. This was judicial activism at it's most insidious. One judge ignored the will of the people and created law from whole cloth. Amazing.

Would a USSC supermajority require a constitutional amendment to implement or does the congress have the power to change the rules governing the Supreme Court as part of Article III, section 1: " The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"?

This post has been edited by lordhelmet: May 13 2005, 01:31 AM
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