Tuesday, February 14, 2017

Activist Judges Undermine the Constitution

I was discussing with a friend of mine that the #1 most important reason that Donald Trump needs to be elected is to make sure a Constitutionalist Judge is nominated to the Supreme Court. 

She said, "Why?"

I said, "Because we need to make sure that the rule of law is followed. Democrats, at least in the past 100 years or so, have been known to nominate activist judges who do not make rulings solely based on the rule of law."

She said, rolling her eyes, "Oh, they do not." 

Recent events have provided a perfect example of what I was trying to describe to her. To start with here, I think we need some definitions.
  1. Judge. A person who considers the evidence in any given case and makes a ruling or opinion solely based on the laws that currently exist. This would include the U.S.Constitution, followed by laws created by the U.S. Congress, State Legislatures, and the various local legislatures. A modern term for this is a Constitutionalist Judge. 
  2. Activist Judge. A person who considers evidence in any given case and makes a ruling or opinion solely based on his or her own opinion or political preference rather than considering the rule of law. 
  3. Judicial Activism. Judicial rulings solely based on personal opinions and politics. 
Now, for our example. I can think of many good examples, but there is one very good one that is currently working it's way through the U.S. Court systems. It involves an executive order written by Donald Trump banning immigration from seven Muslim Nations and Syria from immigrating to the United States. 

The ban is because radical Islamist terrorists have entered the U.S. since and before 9-11, and 72 have come from these seven nations and Syria. So, the idea of the ban was to cease immigration from these nations until a proper system of vetting them could be put in place. 

To me, this seemed like a logical order. Why? because the #1 job of the President is to defend and protect the Constitution. It is the #3 job to create a sound economic environment. The #2 job is to keep America safe from foreign invasion and from thugs who want to destroy us. In fact, without #2, #1 and #3 are impossible to do. In other words, if we are not safe and secure, we cannot be free.

Now, there are various opinions on this executive order. Some people like it, and some people don't. Regardless, it's what the President thought was necessary given the security information that he was provided with. Okay? Now I am going to give you an example of how Judicial Activism works. 

So, you have activist lawyers who do not like this ruling. So, they create a legal case. Then they find a judge that they believe is an activist judge who will rule in their favor. Judges in Seattle tend to be the most liberal judges in all of the land in the United States. They find this judge in Seattle by the name of Judge James Robart. 

He was nominated by George W. Bush. However, he was referred to Bush by liberal Senators from Seattle. In order to appear bipartisan, Presidents have often times nominated judges in this fashion, alternating from allowing liberal Senators and conservative Senators, or democrat Senators and republican senators, to nominate judges. Then the President officially nominates them, recommends them, and ideally they are confirmed by the U.S Senate. 

So, this is how judge Robart became a judge in Seattle. Liberal activists know that most courts would rule in favor of Trump in this case. So, they know their only hope is to find a judge like Judge Robart. So, they present the case to his court. They knew that, before Trump's lawyers even considered the evidence, that their case would prevail, mainly because they knew they had a judge who would consider his own personal political views over the Constitution. 

Therefore, it should not be a surprise to anyone that Trump's executive action banning Muslim's from immigrating into the U.S. from seven Muslim nations was ruled unconstitutional. Then the case went before the 9th Circuit Court of Appeals, and the opinion of Robart was held up. Now, this should not come as a surprise, as there was no way these judges were going to rule any way other than the way they ruled. 

Here's a little history of travel bans. President Bill Clinton imposed travel bans on certain nations 12 times. Obama imposed travel bans on certain nations 10 times. Calvin Coolidge banned all immigration. The main reason for these bans was to make sure terrorists weren't coming into our country. It was to keep us safe based on the evidence available at these various times. 

Not one of these times did the case go to court. No one even questioned the Constitutionality of these bans. If someone did, it was not enough to make a difference. The reason there was not discontent with these bans is because they are not unconstitutional. They are only unconstitutional when Trump does it.

The law is simple here. According to my sources, it comes from a 1952 law, not one created by an activist court, but an actual one created by Congress and signed by a sitting President. It's a statute that says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Liberals have an agenda. They know their agenda is not popular with the American people. The only way they can get their agenda moved forward is by using activist judges. You can go all the way back to Rowe-v-Wade to find the first activist ruling by the courts. There is nothing in the Constitution that makes abortion legal. However, when you have activist judges it doesn't matter what the law is: they just rule based on their political views.

It's called judge shopping. Liberals can't get their agenda passed by Congress, they don't have the support of the people, so all they have left are activist judges. They have that and the bureaucracy. They have judges and people hired by democrats who are unelected and you can't get rid of them. 

So, liberals knew how Judge Robart would rule before Trump's lawyers even spoke. It was already known he would rule against Trump. In his ruling, he never even referenced the above statute.  basically stated his own personal political views, that there is no evidence that terrorists were coming from these seven countries, so it was Unconstitutional. He said this makes it racist.

Also without referencing the above statute, the 9th circuit held this ruling.

First of all, a judge is not supposed to rule based on his opinion. It doesn't matter if there are terrorists coming from these countries or not. These judges don't have access to the same security information the President does. There is supposed to be Separation of Powers, where the President doesn't have to share top secret security information with the other branches -- and this is for security reasons.

However, that aside, it was later revealed to Judge Robart that 72 terrorists have come in from those seven countries and were convicted of terrorism since 9-11, but that doesn't matter. It should not matter to this judge. It doesn't matter if it is racist. It doesn't matter the morality of the law. A judge is supposed to rule based on the law. He is to rule if it is Constitutional or not. He is not supposed to rule on the morality of the law -- which is what he did.

Technically speaking, immigrants aren't even citizens. The Constitution doesn't even apply to them. So it's impossible for Trump's executive order to be unconstitutional. This whole issue should have been thrown away just on that fact. But, this judge is an activist, so the ruling is what it is. It was to be expected. This is what to expect from activist judges. This was planned all along.

There is another reason the case went to a Seattle Judge. This is because an appeal would go to the 9th Circuit Court, which is the most liberal, activist court in the United States. They, like Judge Robart, already knew how they were going to rule, even before Trump's lawyers spoke. They knew, because they already decided how they stand on the issue politically. They were going to hold Judge Robart's standing. This is not a surprise. It is not a shock to anyone but people who don't pay attention to the news.

Interestingly, to give an example of how out of touch the 9th Circuit Court of Appeals is with the mainstream of America, they are the most overturned court in the nation. Of the cases that made it to the Supreme Court, 80% were overturned in 2010, 71% in 2011, and 86% in 2012. So, they are found to be guilty of political activism greater than 80% of the time.

Of this, Rush Limbaugh said:
But at the root of all of this, is the Constitution being ignored, the will of the people being ignored, liberalism. And they have their various areas where they engage in this nefarious activity, and those areas shield them and give them authority and give them respect, like scientists in climate change and judges in the law wearing black robes eminently educated, among the best and brightest of our legal minds, educated in some of the finest liberal indoctrination centers — I’m sorry, law schools — in the country.
So, these activist judges ruled that it was a Muslim ban. It was a ban on a certain religion, so it is unconstitutional. 

A Constitutionalist Judge, of which most judges are, would have ruled based on the law. In this case, they would have found that it's not a Muslim Ban. The ban is only on seven countries. They do so happen to be Muslim countries. But if it was a Muslim ban, all other Muslim nations would have also been banned from immigrating to the U.S. As it is, 85% of Muslim nations were not banned. So, it is not a religious ban. It is not a ban on religion. If it was a religious ban it would name every Muslim country.

Putting all that aside, a Constitutionalist Judge would have thrown the case out based on one simple fact: the Constitution does not even apply to immigrants. 

But such common sense doesn't matter to activist judges. 

One more thought before I end this post. Judge Gorsuch, when he was nominated to the Supreme Court by Donald Trump, said something interesting during his nomination speech. He said that sometimes he is unhappy with the decisions he makes.  I think what he was implying here is that he doesn't rule based on his politics; he rules based on the law. And, sometimes, he has to make rulings that oppose his own political positions. He is saying he is a Constitutionalist and not an Activist Judge.

Judge Robart and two of the three judges on the 9th Circuit Court of Appeals are Activist Judges. They are probably always satisfied with their rulings, because the Constitution takes a back seat to their political views.

Further reading and references: