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Obama is right on unelected judges

Last week, President Obama took on the Court, questioning its authority to overturn a validly passed Congressional law.

Good for him.

For a week now, republicans have feigned outrage at the suggestion that the Court’s opinion wouldn’t remain supreme.  Only a few weeks ago, Newt Gingrich was espousing the same sentiments.

See here: http://griffinelection.wordpress.com/2012/01/12/newt-gingrich-is-a-friend-to-dred-scott/

And here: http://griffinelection.wordpress.com/2011/12/20/newt-is-right-we-need-to-reel-in-scotus/

These republicans have acted shamefully.  It is a widespread conservative belief that the Supreme Court is overreaching and unaccountable.  Justice Kennedy alone may overpower the will of the people and leaders of the United States.  That isn’t right.  It isn’t Constitutional.  And it isn’t what our founders intended.

If the executive and legislative branches ever plan on standing up to the judiciary, it will have to be on a bipartisan basis.  For republicans to attack the president on this one is small minded.  Judicial review is stooped in tradition more than law.

We could only wish that we had a republican that would challenge the Supreme Court to carefully consider what it was doing before overturning laws.

Proponents of judicial review argue that the checks and balances of the system allow the Court to wield such power.  Yet, the Court’s power over the other branches of government is seemingly absolute.  The court may overrule almost any law it deems “unconstitutional.”  On top of that, the Court created its own power to review and has set its own parameters as to what is out of bounds.  Republicans and Democrats have resigned themselves to the fact that the Court truly will reign Supreme and simply attempts to get nominees that will legislate in their partisan direction.

If we want to adopt judicial review as domestic policy, fine.  Let’s do that.  But let us only do so on the enumerated powers laid out in the Constitution.  Not every single legislative issue falls under the purview of the Courts.  The Democrats won a super-majority in 2010 and they passed a terrible bill.  The proper check and balance is what happened in 2010 and what we are trying to accomplish in 2012.  Repeal.

The Democrats of 2010 broke Senate procedural rules by passing a non-budgetary bill through the reconciliation process.  It was wrong and unethical.  Mitch McConnell (R-KY) should have had the guts to stop it.  Outside of that, and a whole lot of questionable earmarks, the bill was passed legitimately.

To be clear, we have to take a nuanced position here.  It is wholly right to challenge the Affordable Care Choices Act in the Supreme Court.  The reason being that this is how the game is played.  We can’t sit back refusing to challenge legislation in the Courts as democrats dismantle our legislative achievements in the courts.

Although President Obama apparently disagrees with Super PAC’s, he realizes that you can’t effectively fight with one hand behind your back.  We have to use judicial review because if we don’t, we lose an even bigger battle.  But that doesn’t mean we shouldn’t work to change the legal culture towards the judicial supremacy.  The Supreme Court is supreme over all other courts, not over all other branches of government.

This method of attack is now accepted in our legal culture and for that reason we must continue to fight on all grounds.  However, when democrats give us the opportunity to erode the court’s power, we shouldn’t spurn them for short term political gain.  We should embrace it.  The Supreme Court is out of control.  We can’t reel it in on our own.  The judicial review of duly passed legislation is something we accept as a reality of our legal system.  It doesn’t have to be.  President Andrew Jackson didn’t think it was.  None of the founders accepted it.  We shouldn’t either.

The biggest thing I resent about President Obama’s words in taking on the Court last week, is that we don’t have a Constitutional law professor President on our side willing to make the case for judicial overreach.

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