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The Houdini Award By: Thomas Sowell
FrontPageMagazine.com | Monday, October 14, 2002


You expect a corrupt politician to do corrupt things, so when Senator Robert Torricelli, D-N.J., withdrew as a candidate for re-election after ethics charges led to his falling behind in the polls, that was hardly surprising. Nor was it particularly surprising that New Jersey's Democratic Party chose a substitute — even though this was in direct violation of a New Jersey law which forbids the substitution of candidates this close to Election Day.

What was astonishing was the spread of the corruption to the New Jersey Supreme Court, which unanimously approved this action in defiance of the plain words of the written law. When the late Justice William Brennan of the U.S. Supreme Court "interpreted" a provision of the Civil Rights Act of 1964 to mean directly the opposite of what its plain words said, the dissenting opinion of Justice William Rehnquist likened this "interpretation" to the great escapes of Houdini.

There should be an annual Houdini award for this kind of judicial corruption. The New Jersey Supreme Court would win this year's award hands down.

Like Justice Brennan and others who have turned laws upside down for the sake of imposing their own will, the New Jersey Supreme Court claimed to be applying the "spirit" of the laws, rather than the words. Spirits don't talk back, so you can never prove the judges wrong, no matter how plain the words of the law.

If Houdinis on the bench can escape the laws that are on the books and substitute their own personal preferences as the basis for their rulings, then democracy becomes an illusion and the reality becomes a judicial ad-hocracy, overruling whatever laws the judges don't like, whether explicitly or by free-ranging "interpretation."

Laws do not enforce themselves. If courts are too corrupt to enforce them, then our last line of defense is the press, which can alert the public to what is happening and let the voters decide what they are going to do about it. But if both the courts and the press are willing to turn a blind eye to those illegalities which meet their political approval, then the corruption is complete.

The U.S. Supreme Court refused to hear the appeal from the New Jersey Supreme Court's ruling, even though the Constitution of the United States explicitly provides that state legislatures — not state courts — are to prescribe the methods for the selection of each state's representatives in Congress and in the Electoral College which elects the president of the United States.

When a state court violates the election laws passed by its state legislature — whether in New Jersey this year or in Florida two years ago — the mainstream media backs them up, when this serves the political causes favored by journalists, who vote overwhelmingly for Democrats. Any criticism of such courts is deplored as an attack on the independent judiciary and the rule of law.

But when the U.S. Supreme Court overruled the Florida Supreme Court in 2000 and restored the law passed by the Florida legislature, the media outcry was loud and long. It was called "interference" by the High Court, when in fact what the justices did was stop interference by the state court. Maybe the heat that the justices took from the media had something to do with their refusal to carry out their constitutional responsibility this time.

Some are discussing the New Jersey fiasco as if the issue is whether it is "fair" to have one party be able to substitute candidates at the eleventh hour when its current candidate is behind in the polls. That is a legitimate question but whether we have a government of laws, and not of men, is a momentous question.

The New Jersey judicial corruption highlights the importance of electing U.S. senators who will confirm judges who follow the law, not their own political leanings and social visions. The Senate is currently blocking judicial nominees who follow the law, obviously hoping to get judicial Houdinis who will enact the liberal agenda from the bench, when it cannot get enacted in the voting booths.

Voters need to keep that in mind when they go to the polls in a few weeks. In voting for Senate candidates, especially, they are voting on what kind of country we are going to have and what kind of country our children will inherit.


Thomas Sowell is a senior fellow at the Hoover Institution.


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