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Judges gone wild
Saturday, November 3, 2007
By Ellis Washington
There was in a city a judge, which feared not God neither regarded man.~ Saint Luke
The Constitution isn't a suicide pact.
~ Justice Robert H. Jackson
In our modern, post-Christian, post-monarchy, post-Enlightenment, post-rational society, the closest thing our humanist culture has to a "god" is the judge. In 1907, Chief Justice Charles Evan Hughes famously remarked: "We are under a Constitution, but the Constitution is what the judge says it is." Case closed! This inimical judicial philosophy was enshrined early in American constitutional law by that controversial Supreme Court decision authored by Chief Justice John Marshall, Marbury v. Madison (1803).
The Marbury opinion invented out of whole cloth what latter became known as the doctrine of "judicial review" and gave to judges what was traditionally a limited and discrete power to now with godlike authority dictate what the law is (judicial interpretation). But here is the diabolical part: Where no law existed, or the law was vague about what Congress intended, this newly created Super Judge (whom law professor Ronald Dworkin calls "Hercules") could decree to We the People – the ignorant, unwashed masses – what the law ought to be. The radical effects on constitutional law, on jurisprudence, on the rule of law, on society caused by the Marbury v. Madison decision over 200 years ago are still being felt in modern times, with more horrible consequences to come.
Judge gone wild No. 1: Roy L. Pearson Jr.
Judge Roy L. Pearson Jr.Last week, Roy L. Pearson Jr., the judge that infamously sued a mom and pop dry cleaners for $54 million for allegedly loosing his pants that he brought in for $10.50 worth of alterations, has served two years on the bench of the Office of Administrative Hearings. Thankfully, the case against Custom Cleaners and the Chungs was decided in their favor in June. However, because of mounting legal expenses due to Judge Pearson's frivolous and outrageous lawsuit against them, the Chungs were forced to sell their cleaners where the incident occurred.
Although Pearson's two-year term was up in May, remarkably he still remains on the payroll at a $100,000 annual salary as an "attorney adviser." However, the Commission on Selection and Tenure of Administrative Law Judges finally decided last Tuesday evening not to reappoint him. All they have to do is send him a formal letter.
Judge Pearson isn't as much of an aberration, as the mainstream legal community would have you to believe. Sure, $54 million is outrageously exorbitant, but setting the monetary value aside, Pearson's action was ultimately an attempted rape of our legal system, a violation of his sacred oath as a judge.
Like that shyster ex-DA from Durham, N.C., who brought bogus rape charges against three Duke lacrosse players (Mike Nifong), we can only hope that Judge Pearson will not only never work as a judge again, but like his ideological twin, he will eventually be disbarred. Clearly, he has some cognitive issues that need immediate attention by a neutral and dispassionate professional.
Judge gone wild No. 2: John Coughenour
In January of this year, federal appeals court Judge John Coughenour, using Marbury jurisprudence, vacated a sentence against none other than Ahmed Ressam, the Algerian Muslim who tried unsuccessfully to blow up the Los Angeles International Airport. But for the sharp eye of a U.S.-Canadian border agent, this terrorist would have brought in the 21st century with a big bang for the U.S.
In an Associated Press story that came out on Wednesday about the Ressam case, which is being appealed by the Justice Department to the Supreme Court, the reporter wrote:
The U.S. Supreme Court has been asked to intervene in what federal prosecutors say is a procedural gaffe that led to a too-lenient sentence for a terrorist who brought explosive devices into Port Angeles in 1999.A federal appellate court's decision to toss one of the charges against Ahmed Ressam – an Algerian national who trained in one of the Afghanistan camps of Osama bin Laden before going to Canada – could "significantly diminish" the government's ability to prosecute terrorists, the Justice Department wrote Thursday in asking the Supreme Court to take the case.
Ressam was sentenced to 22 years in prison in 2005 after being convicted on nine counts for plotting to bomb Los Angeles International Airport around Jan. 1, 2000 – more than one and a half years before the Sept. 11, 2001, terrorist attacks in New York and outside of Washington, D.C.
Prosecutors had asked for at least 35 years in federal prison.
Political analyst Michelle Malkin, writing on her blog about the Ressam case and Judge Coughenhour, whom she called "Hitler's little helper," stated:
Whatever the message the judge hoped to send, the one he in fact did send was to Islamicists all around the globe: Come to America. Try and kill us. Either you succeed and get to your version of heaven, or you'll get a second chance 22 years later after spending a couple of decades setting up networks that can help you with round 2. ... I am ashamed to say Judge Coughenour is a Reagan appointee.In 2005, Malkin states that Coughenour was the original judge that came up with the 22-year sentence initially and, despite the urging of his colleagues, refused to justify his legal reasoning. Incredulously, he sent the case back to the lower court for them to justify why he (Coughenour) gave Ressam a 22-year sentence in the first place. If you are confused, dear reader, then so am I.
Judge gone wild No. 3: Justice Stephen Breyer
Justice Stephen Breyer, in a CNN interview with former Justice Sandra Day O'Connor in late 2006, was unusually candid about his vision of a Supreme Court oligarchy when he stated: "The best guarantee that minorities will not be oppressed, that the Constitution will be lived up to, is to give that very last word – under narrow circumstances – to a group of judges." He later said, "Someone has to have the last word."
Yes, Justice Breyer, I agree that someone has to have the last word. However, while your only job as a justice of the Supreme Court is to interpret the Constitution, the legislature (Congress), elected by their voting constituencies (We the People), under our republic, must have the last word on not only what the law is, but what the law ought to be. Remember the words of Justice Robert Jackson, who said, "The Constitution isn't a suicide pact." In my opinion, a cadre of five justices having the omnipotence to force Americans to be or not to be is a suicide pact.
America, if we fail in our duty to reign in these renegade judges at all levels, our culture will always be held hostage by the "Tyranny of One," and society will increasingly witness these alarming examples of judges gone wild.
Ellis Washington, former editor at The Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including "The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law" (2002). He has just completed the manuscript to his latest book, "The Nuremberg Trials: Last Tragedy of the Holocaust" (2007).
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