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Judicial Arrogance By: Henry Mark Holzer
FrontPageMagazine.com | Monday, October 13, 2008


Tuesday, October 7, 2008 should be remembered as a day when federal judicial arrogance descended to a new low.

Apparently, before being appointed to the federal bench by President Clinton, United States District Judge Ricardo M. Urbina (District of Columbia) learned somewhere along his career path—student at Georgetown University and its Law School, practitioner at the DC Public Defender’s Office, teacher at Howard University School of Law, judge at the DC Superior Court—that Articles I (legislative) and II (executive) of the United States Constitution must succumb to the arrogance of unelected, life-tenured Article III federal judges.

That’s because on October 7th, Judge Urbina decided that the government’s power to hold seventeen Guantanamo detainees had “ceased,” that they were to be transferred to the District of Columbia within four days, that once there they were to be freed, that they were to be relocated in the greater DC area, and that the government better not use immigration laws to harass the illegally-here aliens.

Residents of the District of Columbia were not happy. The Wall Street Journal opined about The Terrorists Next Door. The White House was “deeply concerned by, and strongly disagree[d] with” Urbina’s ruling. Conservatives were outraged, especially at Urbina’s threat to the government that “I do not expect these Uighurs will be molested [!] by any member of the United States government,” arrogantly adding that “I’m a federal judge, and I’ve issued an order.”

Urbina believed he had the power to issue that order because of the Supreme Court’s recent 5-4 decision in the Boumediene v. Bush case, which held that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention.

In dissenting from, and lamenting, the majority opinion in Boumediene Chief Justice Roberts asked rhetorically, “So who has won?” His answer anticipated, in part, what Urbina did last week. Roberts wrote:

Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the [United States Court of Appeals for the District of Columbia Circuit] . . . . Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests . . . has been unceremoniously brushed aside. Not the Great Writ [of habeas corpus], whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. (My emphasis.)

Roberts’s prophesy about the likes of District Judge Ricardo M. Urbina raised yet another question: If the detainees didn’t win, if Congress didn’t win, if the principle of habeas corpus didn’t win, if the rule of law didn’t win, if the American people didn’t win—and, one can add, if the Commander-in-Chief didn’t win—who did?

Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is “not really about the detainees at all, but about control of federal policy regarding enemy combatants,” and that “[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”

Or, as Chief Justice Roberts put it: “unelected, politically unaccountable judges.” The Judge Urbinas of the federal bench!

Those of us who for years have had a bellyful of such judges and the damage they have done to our social, cultural, economic, political and military institutions today rightly fear that legions of Urbinas are waiting in the wings for appointment to federal courts following an election victory by Senate Democrats and Barack Obama.

Obama adheres to the doctrine of a “Living Constitution.” Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights and limited government is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”

If the federal judiciary, let alone the Supreme Court, falls into Obama’s hands (especially with a compliant Senate, let alone a filibuster-proof one), our Nation will surely be crippled, perhaps fatally, in its domestic battle against socialism and our foreign war against Islamofascism.

This is not a charge that I make lightly, but rather one rooted in the words of candidate Obama himself.

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meister, “Planned Parenthood.” In the words of NBC reporter Carrie Dean Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

“Empathy,” according to Webster’s New World Dictionary of the American Language, is “the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings.”

Thus, we have been unmistakably warned that president-hopeful Barack Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)

It couldn’t be clearer what this candidate for the presidency of the United States admittedly has in store for the federal judiciary and thus for our Nation.

So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops the notion of a Living Constitutionalism into yet a lower rung of hell. His confession reveals that while in the past the Living Constitution’s acolytes sought to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” a President Obama will feed the beast with what’s left of individual rights and limited government, all in the name of “empathy”—a code word for something much darker: sacrifice of true constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individual rights and limited government—is collectivism/statism squared. While our Nation has so far been able to survive Living Constitutionalism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?—we may not be able to survive Obama-appointed federal judges in the mode of Richardo M. Urbina.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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