A Protest Too Far

Article excerpt

Byline: David Davenport and Gordon Lloyd , SPECIAL TO THE WASHINGTON TIMES

In his 19th and perhaps final year-end report on the federal judiciary, Chief Justice William Rehnquist warned that judges must be protected from political attacks.

Singling out members of Congress who have criticized activist judges and introduced bills to limit their jurisdiction, Chief Justice Rehnquist defended judicial independence from those who disagree with court decisions.

But the chief doth protest too much. The court is not under attack from political demagogues. No, the "mounting criticism" of the judiciary that disturbs Justice Rehnquist has developed because responsible people from across the political spectrum feel courts are making policy on matters beyond their purview.

And, of course, it doesn't help that courts are making decisions that overturn policies mandated by voters and their representatives.

Courts are not simply facing political threats from partisan legislators disappointed that courts disagree with them. More fundamentally, the critics raise legitimate questions about whether courts are exceeding their jurisdiction and, short of doing nothing or impeaching justices, they are asking, "What can be done to check the judiciary and return public policymaking to the legislative and executive branches?"

Rather than a congressional check to judicial activism, Chief Justice Rehnquist says we should rely on appeals to higher courts and the judicial nomination and appointment process. Having a higher court fox guard the lower court hen house is hardly a check on judicial power. And, even assuming new judges would have a different view of judicial activism, new nominees in a time of filibusters and delayed appointments would need decades to balance the bench.

In fact, the Constitution gives Congress far more power over the judiciary than Justice Rehnquist's report would allow. Who decides on the pay of judges, the size of the Supreme Court or what lower federal courts should exist or how they should operate? In each case, the correct answer is Congress.

Indeed, Article 3, Section 2 of the Constitution says the Supreme Court's appellate jurisdiction shall fall under such regulations and with such exceptions as Congress shall make.

After lengthy explications of congressional and executive powers in Articles 1 and 2 of the Constitution, Article 3 concerning the judiciary is quite brief. …