Harry Reid and the Nuclear Option: Why Judicial Appointments Matter.

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Harry Reid’s complicity in Barack Obama’s court-stacking scheme should not be underestimated. The appointment of activist judges to the federal courts, and most particularly the D.C. Circuit, is a purposeful act designed to install judges who are friendly to the progressive agenda, most particularly, those who will uphold upcoming challenges to Obamacare. Presidents and members of Congress may come and go, but lifetime appointments for federal judges means that errant jurists can have major influences on policies for years to come.

 How can this be? Don’t judges consistently rule in accordance with the directives of the law? The sad answer is no. There is a means within our legal system whereby the rule of law can be perverted beyond recognition. It’s the same reason why we often see our Supreme Court decision split, often 5 to 4. How can it be that nine of the most brilliant legal minds in our country so often disagree about what our laws direct? In a word: Ideology. Judicial appointments are rarely based upon pure competence but rather are almost always based upon how a jurist perceives their role in shaping policy. A strict constructionist judge believes in the sanctity of the rule of law and understands that their role is merely to explain what the law says. An activist judge believes that their role is in manipulating law to achieve a certain goal. Activist judges cross Constitutional lines by “legislating from the bench,” a clear violation of our separation of powers.

How is law created from the bench? The primary, most blatant abuse of power thatour courts routinely engage in involves the deliberate disregard of the most effective restraint imposed against corruption of the judicial branch. That restraint is a legal device called precedent. It involves restriction of a judge’s decision-making depending on what law was established in the past.

American law was not invented along with this country. Our history of jurisprudence was borrowed from the English Common Law. The Common Law has been in development since at least the Magna Carta. The wise men who developed this system understood one thing: that judges are human. As such, they are prone to capriciousness, greed, ignorance, fatigue, ambition, prejudice, and stupidity, among other vices. Therefore, the problem was, how does one create a system of justice, where the laws are applied equally to like people in like situations, when the arbiters of this system are subjects to the instability of their own character?

The solution: Precedent. When a case is before a judge, he or she is not supposed to decide that case based on what they pull out of hat or based on what the lawyers are coughing up. The lawyers are by trade biased. The judge’s hands are supposed to be tied by precedent.

Here’s how it works: over the years of development of the common law, we saw the creation of causes of action. “Causes of action” are a set of elements that identify a problem that is common to the human existence. Once the cause of action has been identified, there are limited selections of remedies that are appropriately applied to address that problem.

Here’s my favorite example: When I was in law school, we studied a landmark case which established a cause of action in “public nuisance” which addresses a situation where someone prevents fellow citizens from using something that is publicly owned. In this very old English case, the facts pertained to a situation where a man continually blocked a public path with his donkey. Only in this case, the donkey was referred to as an “ass.” So you would read this old English case which had statements like, “ye old defendant would not moveth his ass from the road.” In any event, after establishing that this set of facts did create this cause of action, the remedies involved forcing the person to refrain from the offending act and perhaps pay a fine or damages to an injured party. After that case, in the future, any judge who was addressing a similar set of facts was the refer back to the older cases in his jurisdiction to guide him as to what he should do with the case in front of him. So for example, let’s say ten years after the donkey case, a plaintiff petitions the court because the defendant continues to block a road with his wagon. Or 200 years later, a neighbor to a public park makes the park unusable by the public because of some regular, abhorrent behavior, e.g., blasting music, littering, etc., that repels fellow citizens from being able to enjoy the area. In those later cases,  judges are to look at past cases and those cases are there to restrain the judge from arbitrary rulings. In fact, in one’s jurisdiction, earlier cases that have similar facts are considered to be “mandatory authority” and the judge can not stray from following the confines of those decisions. This promotes stability of the law (beneficial to the state) and predictability of the law (beneficial to the people).

But some judges no longer consider themselves bound by precedent. It is simply much more convenient to their activist agendas to disregard the restrictions.

This encourages “judge shopping,” where litigants take cases to friendly jurisdictions in order to secure rulings that are in line with their social agenda. This lends itself to legal chaos in which the rules are no longer clearly ascertained or defined. Harry Reid & Company are acting deliberately to ensure a complicit judiciary by creating forums that will be receptive to manipulating precedent in order to sustain the progressive agenda.

In a pure democracy you have the rule of the mob. In a republic, the rule of law is the cornerstone. That is why corruption of the law is one of the primary vehicles of undermining freedom. Disregarding precedent is the fuel of that corruption.

Harry Reid may be many things, but he is not stupid. In order to entrench the power of the government over the people, he is colluding with Obama’s minions in government to deliberately install jurists who will manipulate precedent in order to cement into place progressive policies that would never survive a hostile electorate. These recent turn of events are an enormous cause for concern and make it even more critical that conservatives regain control over the House and Senate in 2014 and the White House in 2016. It might be the last chance to check an out-of-control judicial branch.

 

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