[Overpaid Slacker]

Mike - I don't disagree with your proposition in general; however, if the "people have spoken" whether indirectly through the legislature or directly through a referendum, the results of that don't just wind up sua sponte in court.

Someone takes it to court, and more often than not, someone jimmies with the bench assignments to get what they want (witness the chicanery of the 6th Circuit in the U of Michigan Discrimination cases, detailed in an opinion addendum).

There is no secret to the Left's horror at the notion that W will be able to appoint many federal (lifetime tenured) judges. The courts are the end-run for Libs when the public is not sophisticated enough to adopt the Lib's pet policies.

And even when it's not a matter of constitutionality instrumental (activist) decision-making is a hallmark of liberal jurists. Creating rights under the Constitution out of thin air -- rights that some of our most distinguished legal minds never ever saw even a hint of in over 200 years, until all of a sudden a newly conjured "Right of Privacy" was discovered in the Constitution. Maybe it was on a Post-It stuck to the back, or something.

The FL Supremes in Gore v. Bush throwing out a state statute requiring certification of results in seven days and replacing it with one they made up on the spot -- w/o the authority to do so, incidentally, which is reserved to the legislature.^ Or the NJ Supremes allowing Dem's to substitute a candidate for the Torch Torricelli in flagrant violation of the crystal clear letter of NJ law.* But, no, the law wasn't convenient to those circumstances, so it had to be "interpreted" for it's intent (code for ignored). Everybody sing along .... "Let Every Vote Count, Kumbayah". Yeah, except those that are inconvenient.

The "principle" of creative jurism is flawed to its core, and I'll call Bullshyt whether it's Right or Left pulling that stunt. This activist usurpation by judges is indefensible, but very convenient to the Left who lose at the ballot and in the legislature and have no other way to get what they want. So they dress up their defense of this radicalism in a variety of guises "every vote count" "will of the people" etc. We're not fooled.

JP

^In order to give three Florida counties time to complete their hand recounts of the presidential ballots, the court threw out the express, written, crystal clear statutory seven-day deadline and replaced it with a new one of its own devising.

The Florida Supremes exceeded their lawful powers, with astonishing inventiveness, in a case where the political stakes could hardly be higher. Consider the Florida court's arrogance. It overturned choices made by all three branches of Florida's government: by the state legislature, which wrote the certification deadline into law; by the governor, who signed the law, and the secretary of state, who tried to enforce it; and by the circuit-court judge who had approved the secretary of state's effort to enforce it. The Florida court claimed to be defending "the will of the people" by overruling laws passed by the men and women those people elected.

The Florida court reasoned that two state laws were in conflict. One provision said that returns filed after the deadline "shall be ignored," while another said that returns filed after that date "may be ignored." Gore's team argued that the fact that the secretary of state may ignore late returns does not mean she must ignore them; indeed, she must not ignore them. WTF?!? You'd laugh someone right out of your home if they presented that "argument" to you.

On that piece of baldly partisan "reasoning" did the FL Supremes get the decision they wanted to get to. If that was not your predetermined desired outcome, there is no way on Earth any thinking person could turn that statute directly on its head -- "may be ignored" becomes "must not ignore". Yeah.

*The New Jersey statute in question could not have been clearer: A political party may not replace one candidate with another within 51 days of the election. Since Torricelli, who was OBVIOUSLY going to lose, announced that he was getting out of the race for the U.S. Senate a mere 34 days before the voters were to decide his electoral fate, the letter of the law plainly forbade the Democrats to replace his name on the ballot with that of a different candidate (e.g., former Senator Frank Lautenberg). The law didn't require "interpretation" or "analysis" -- 51 days is 51 freaking days to anyone; unless you're a liberal court acting to the detriment of a Republican politician. Then 51 days doesn't mean 51 days ... it means what we need it to mean in these circumstances to effect our ends.

So, excuse those of us who have no faith in the evenhanded, dispassionate "application" of the law by activist judges.