by Howard Stephenson
Looks like the third branch of government is becoming the only branch with the power to legislate the liberal agenda in America. Given the liberals’ inability to achieve their agenda for social change through congress or the presidency, they seem to have settled on taking over the judiciary to advance their causes. Surely the founders of this nation did not conceive of Justices so corrupt that they would usurp the authority of the legislative and executive branches by edict. The Democrats in Congress have become so militant that they are now ensuring appointment of judges who share their values by blocking through filibuster the confirmation of nominees who are too conservative or who they think may oppose abortion or gay marriages or other liberal litmus test issues.
The latest casualty of the Democrats ensuring judges will “legislate” their way is Miguel Estrada who recently withdrew his name from appointment to the U.S. Court of Appeals for the D.C. Circuit following a two-year delay in the confirmation process due to the filibuster by 45 Democrat Senators.
Mr. Estrada was nominated more than two years ago and heralded as an American success story. Born in Honduras, Mr. Estrada arrived in the United States as most immigrants: essentially illiterate and without resources to get ahead. He eventually graduated from Harvard Law School, held various prestigious jobs and argued cases before the U.S. Supreme Court while working for the Clinton administration’s solicitor general’s office.
It is a travesty that Estrada — so highly qualified to sit on the bench — was not confirmed.
Utah’s most recent judicial confirmation
Last Wednesday the Utah Senate unanimously confirmed the appointment of a remarkable nominee to the Fourth Judicial District Court, Wasatch County Attorney Derek Pullan. There were many in the public who said he should not be confirmed because of his advocacy for the state GOP central committee to overturn a resolution passed at the state convention in 1998. The resolution encouraged protection of private property rights by restricting the use of asset forfeiture for those accused of a crime. Two years later Initiative B, which was opposed by Pullan and most law enforcement agencies, was enacted by voters with a nearly 70% favorable vote. Now Pullan may face judicial decisions about enforcement of a law he opposed.
The Judicial Confirmation Committee asked Pullan how his prior involvement might affect ruling on this issue as a judge. His answer came quick and sure: He would be bound to enforce the law, regardless of his own opinions.
Following his confirmation, Judge Pullan addressed the full Senate and made some inspiring remarks which I wished echoed the sentiments of all jurists in both state and federal courts. Here are some excerpts from his speech:
The merit selection process has given me opportunity to reflect upon the characteristics important to a judge. Certainly, he or she must be a disciplined student of the law, with demonstrated analytical skills and legal experience. However, it seems to me that the wise exercise of judicial authority requires something more. I would like to discuss two such traits.
Second, I am convinced that humility must be the defining characteristic of judicial officers. Acquiring this trait is the challenge of a lifetime. The battle pits ego against one’s better self. I am often reminded of the absence of hum
Yet, I have seen humility exhibited in the character of judges-the former Chief Justice Richard C. Howe (for whom I served as a law clerk), and so many other members of Utah’s judiciary, especially those before whom I have practiced in the Fourth District.
In an article entitled “Centering on Humility,” Law Professor Brett Scharff observes that included in the directive to love mercy and do justly -timeless and often competing principles with which judges are so vitally concerned-is the directive to walk humbly. He writes:
“[Humility] should be particularly relevant to how we select and evaluate judges …. A judge who is humble will be better able to give both justice and mercy their due. In addition … a humble judge will have a better understanding of his or her relationship to sources of authority.” Scharff, B., Centering on Humility, Clark Memorandum, (Winter 1998).
Without humility, the trappings of judicial office-the robe, the “Your Honors,” the standing when you enter a courtroom–can loose a judge from his or her moorings.
Cast adrift, the personality becomes vulnerable to the crashing swells of arrogance.
Out of humility, comes the ability to resist what Judge Robert Bork called the moment of temptation.” Over a decade ago, he wrote:
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution.,
He must then choose between his version of justice and abiding b the American form of government….
To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should. Bork, R., The Tempting of America: The Political Seduction of the Law (1990).
It is in the Legislature that the political power inherent in the people must be exercised. It is here that hard-fought compromises about policy are hammered out.
So long as legislative power is exercised within the express parameters of constitutional law, Courts must not seek to grant judicially, results that could not be forged democratically. Legislating from the bench violates the constitutional principle of separation of powers and undermines the legitimacy of the judiciary.
Out of humility, arises a commitment to listen and a willingness to be educated, before making a decision.
Out of humility, arises impartiality. To recognize personal biases and set them aside, a judge must first admit that the world may not in fact be as he or she sees it.
Out of humility, arises vision. A judge must see past the voluminous calendars, past the crowded docket, Mt the crushing case loads, and see the often troubled people whose lives, liberty and property will be altered by the issuance of a judicial order.
Out of humility, arises the cure for judicial amnesia. The primary symptom of this serious condition is that a judge forgets what it was like – to practice law
Out of humility, arises the serenity to admit error. Out of humility, arises true wisdom.
In conclusion, I make to you the only promise permitted under the Code of Judicial Conduct. For me, that promise is a solemn one, infused with meaning and weighty responsibility. I pledge to undertake the duties of judicial office with diligence and humility