• 39°

Problems with judges often are in eyes of beholder

For several years my Republican friends complained that the problem with America was big government and big government corruption.

The solution, apparently, is bigger government - both in spending and in number of federal employees - and more corruption.

The blooming scandals with Tom DeLay over travel and Texas government interference, combined with the massive creation of "safe" electoral districts and the incredible collapse of lobbying controls on contributions has left the majority party saying only, "but everyone does it."

A good excuse in fourth grade, but far less convincing when your job is creating, and might I say, obeying federal laws.

Recently, the dialogue about the evils of big government has dropped out of sight. The corruption issue is simply on simmer for the summer. The new target for those who see total control as the only form of control, is the federal judiciary.

Yes, it's those bad old judges that are the problem. The argument has two fronts: first, some of the judges are creating law from the bench.

They are "activist" judges, not true to the constitution. Second, the federal judiciary should not be equal to the legislative branch, because, after all, the legislative branch represents the will of the people.

Both of these arguments are as flawed as the premise of a flat world. Now, with a Presidential appointment to the U.S. Supreme Court in the news, it is time to confront the "missing links" within these arguments.

Apparently, the constitution can be interpreted literally, for that is the radical conservative argument.

I am not sure how that is accomplished, given that many of the issues of today were not literally addressed within the constitution.

What is the strict constitutional position on methamphetamine? On Internet taxation? On stem cell research? On abortion?

The problem is there is no literal interpretation available on these issues, just case law in some instances, and a blank slate in other instances.

Every Supreme Court judge must be an "activist" to interpret the constitution to apply to new circumstances.

This is not a problem for conservatives when those interpretations are conservative. For example, when the court recently used the Interstate Commerce Clause to overrule state laws on marijuana usage for medicinal purposes, there was no activist claim mounted.

And, when Terry Schiavo was in the public spotlight, the conservatives wanted an "activist" judiciary, since the numerous case law reviews did not offer the solutions they desired. Activist really means, "doesn't agree with us."

The second argument, the unequal value of the court, is simply an attack on the constitution and three branch government.

The argument is that judges don't make decisions that conservatives agree with, therefore, they should be reduced in their judicial reach. An ugly argument, particularly for those who understand the Constitutional imperative of a non-political judiciary.

Tuesday President Bush nominated judge John Roberts to the Supreme Court. Roberts is a conservative, with limited rulings in his two years on the appeals court bench.

Conservatives have rushed to proclaim him acceptable. I also find him acceptable, barring any revelations in his Senate confirmation hearings.

But a word of caution to my conservative friends. Judge Roberts is, by any account, a very intelligent man. Give an intelligent man 30 years on the bench to think, and he might just think in ways that don't match your pre-established perspectives on law.

He may think outside the conservative framework occasionally. In my judgment, that would make him an excellent judge.

In your judgment it may make him another failed choice, like Souter, Kennedy or O'Conner.

Jim Crawford is employed at Ohio University. He can be reached at drjim893@msn.com.