HollisterFreelance.com | Round Two With the Judicialature

Round Two With the Judicialature

Jan 30, 2006
By Al Kelsch

On Jan. 4, 2006, Vermont District Judge Edward J. Cashman issued a sentence of just 60 days jail time to Mark Hulett who admitted to repeatedly raping, over a four year period, a seven year old girl. Prosecutors were seeking a sentence of eight to 20 years in prison. In a later twist, a man described as a friend of Hulett's is being held for raping the same young girl.

Judge Cashman stated he no longer believed in punishment.

The stunning lack of proportion in the sentencing in this case occasions an opportunity to return to the subject of judges, both Federal and State, legislating from the bench. In a previous column we have seen that lawyers admit, at least in the confines of law schools, that judges do in fact make laws. A particular case is instructive of how judges create laws where none existed before, often in opposition to the wishes of the Legislature and the citizens.

The Civil Rights Act of 1964 made it illegal "to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race." One section of this act, 703(d) specifically forbade discrimination in any program that provided apprenticeship or training. Brian F. Weber, a white employee, was denied admission to training at his company in a program that awarded places on the basis of seniority even though black employees with less seniority were admitted. The company had established racially separate seniority lists and quotas were used in the decision process. Weber sued and Weber vs. Steelworkers came before the Supreme Court in 1979. Justice William J. Brennan ruled against Weber in his majority opinion, even though he did not deny that his opinion was counter to the plain cognitive meaning of the Act.

Justice Brennan, who is forever associated with moving the bar of judicial activism higher than it had previously been, rejected the literal interpretation of the Act even though the wording of the Act was never in dispute. He appealed to the notion that the "spirit" of the Act was not to protect whites from racial discrimination, but was motivated by "the plight of the Negro in our economy." Weber lost the case.

The facts of the situation were such that the Legislators had in fact debated the possibility that the Act might cause reverse discrimination, and the supporters and writers of the act had specifically stated this was not (reverse discrimination) the purpose of the act. In fact, supporters of the act rejected the idea that reverse discrimination was even permitted by the act. The language and the meaning of the language was perfectly clear by the Justice's own admission. The consequences ordered by Justice Brennan's opinion had been debated and rejected by the legislators. However, Justice Brennan chose to create law in that discrimination could be charged by blacks but not by whites in similar employment circumstances.

This is judicial activism.

Nor has it been established or even debated as to why judges are the proper instruments of change at all, since they are unauthorized to do so by the source of their authority, namely the citizenry. The answer is that judges assign to themselves, in such cases, the right to make laws they consider to be morally superior, regardless of what the citizenry or their legislators might desire.

As the scholarly Thomas Sowell puts it, "In principle, the fundamental justification for judicial activism is that what is imposed is morally preferable to what exists - or what the public wants." According to Professor Ronald Dworkin, author and Professor of Law at New York University, "a more equal society is a better society even if its citizens prefer inequality." In other words, judges can be trusted to make superior moral judgments, the public be damned.

Judicial activism, and the Federal and State judges who practice it, has created a Brahmin class in the United States. One can see Judge Cashman in precisely that role: operating with real power, morally superior, personally above the law, unaccountable to the citizenry.

The operation of the judiciary cannot be left to lawyers exclusively. All citizens must inform themselves and take responsibility for the performance and conduct of each of the three branches of government if the Republic is to survive. The price of liberty is eternal vigilance.

Al Kelsch lives in Hollister with his wife Judy. They both enjoy running and singing. Reach him at oibland@yahoo.com.

Al Kelsch
Al Kelsch lives in Hollister with his wife Judy. They both enjoy running and singing. E-mail him at oibland@yahoo.com.