Miles's blog

Here is one reason I am glad I am not a lawyer anymore: judges.  Specifically activist judges.  When I say activist judges I do not mean those who chose to find some legislative enactment unconstitutional, that is their job. I mean judges who think they should use their power to right all the wrongs in the world and to make lawyers dance.

Federal judges have long considered themselves to have god-like powers, and their ego knows no bounds, but what happened this week truly makes me shake my head.  Apparently President Obama made some comments at a press conference about the Supreme Court’s pending decision on the health care law.  Those comments, when taken out of context—which is the only way anyone not in attendance heard them—seemed to call into question both the history and the power of the Court to strike down a Congressional enactment.  Of course, since Obama was once a constitutional law professor at the University of Chicago, there can be little doubt he is aware that the Supreme Court has the power to hold federal laws unconstitutional, and has at times exercised it. 

Nevertheless, the Fifth Circuit Court of Appeals was not satisfied with merely private disapproval of the President, at least one panel chose to use the power of their office to jack around the United States Justice Department.  In a completely unrelated case, the circuit court demanded the Justice Department answer to them for Obama’s statements.  The issue of the court’s power to rule on legislative enactments was never called into dispute in the case in front of them, had not been argued in the lower court, and had not been briefed.  In short, whatever the President said at a press conference that they did not attend, about a case which was not in front of them, outside the court and the record, suddenly became their concern in their minds.  What the heck?

Where do they get off requiring this answer, and how can whatever the answer be affect the case in front of them?  Would they rule on the case they are supposed to decide based on the President’s comments instead of the issues of that case?  Are they going to hold the President in contempt for his comments?  Nothing about this order makes sense to me as a non-lawyer.

It is this kind of attitude which has always pissed me off about a certain kind of judge—the kind who thinks they are the answer to every problem.  They forget that we have the rule of law in this country, not the rule of people.  In other words, no matter how much something upsets them, their role is to rule on the case in front of them based upon the law.  Nothing else.  They are not the regulators of the government whose job is to see a wrong and right it.  They should not take it upon themselves to raise issues not raised by the parties merely because they think they are the smartest person in the room at all times.  Even if they are, in our system of checks and balances each participant has a role.  The court’s role is limited, or should be, to deciding issues of law and making sure each litigant has a fair shot at justice under the law.  This is not a country like, say Pakistan, where the courts should take it upon themselves to look for issues just to order people around and right what they perceive to be wrongs.

Had I been the Attorney General of the United States my answer to the Fifth Circuit would have been short and sweet, something akin to “kiss my ass” and dared them to hold me in contempt.  I doubt the US Supreme Court would back the Fifth Circuit’s excessive exercise of power.

Sometimes judges forget that they intrinsically have no power.  Neither the military nor the police answer to them.  But through their use of their authority going back 200 years we have ceded to them the power to overrule the other branches.  They maintain this power by exercising it, for lack of a better word, judiciously, or in a limited way.  I recall several instances where the DA’s office had to appeal a judge who went outside his or her authority to order things like changing the charges or fining the DA.  Higher courts usually are very cognizant of their limited power and why such limitation is necessary.  If federal appellate judges can call the President to task every time he says something they don’t like where does this end?  

I think it is unfortunate that no one, and I mean not a single commentator, chose to criticize the Fifth Circuit.  If this starts a new trend I fear working as a government attorney will be impossible.  I cannot imagine having to run over to court to answer every time one of the judges had a problem with a newspaper article containing a statement by the DA that the judge didn’t like.  I am glad I am out of this business.  Being a DA was hard enough when some modicum of common sense controlled the exercise of judicial authority.