Bob Franken

King Features Column

(As usual, the arrangement with the syndicator means this column appears here a week after its newspaper release)


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How sad it is that so much about the Supreme Court is so petty. For starters, the justices are blatantly abandoning any pretense of fair reflection and replacing it with foul politics. The health-care hearing with its slanted questions was just the latest example of how the “umpires,” to use Chief Justice John Roberts’ famous description, have been replaced by biased referees.

That criticism is nothing new. Long before the ridiculous Citizens United decision, which expanded human rights to inhuman corporations, and long before the uproar over the Obamacare sessions, millions have bitterly complained about federal judges with lifetime tenures, abusing their power.

There’s an old joke about the young, famous psychiatrist who is struck dead and stands at the Pearly Gates plaintively asking, “Why take me away now?!” “Well, we need you,” St. Peter tells the therapist, “We have a problem with God. He thinks he’s as powerful as a federal judge.”

It usually has been told by those of the conservative persuasion, who howl about “judicial activism.” That was a familiar rallying cry of the segregationists as the courts were helping overturn Jim Crow laws. Now, the same screams from the right are coming from the other side. That includes the president of the United States, apparently fearful he is going to get a butt-kicking over his signature health-care reform.

President Barack Obama was speaking shortly after the rough hearings when he mused out loud about the court taking “an unprecedented step of overturning a law that was passed by a strong majority of a democratically elected Congress.” It doesn’t take a former constitutional-law professor, like he was, to know full well that the Supremes have had that exact power since the 1803 Marbury v. Madison decision.

He was flogged for his words almost immediately, and tried to back off faster than Mitt Romney ever did. What he meant was the court has “traditionally exercised restraint and deference.” Too late: Republicans were all over this. He was “bullying the Supreme Court,” charged South Carolina GOP Gov. Nikki Haley.

Ironically, this places Barack Obama uncomfortably close to Newt Gingrich. Gingrich is the one whose “big ideas” include a president ignoring disagreeable Supreme Court orders. He backs his argument by completely distorting the words of Alexander Hamilton, who, in fact, supported the opposite point of view. Of course, he, too, is a former professor. What’s with these academics?

Let’s head back to the bar for some more irresponsible self-indulgence: A federal appeals-court judge in Texas, Jerry Smith, demanded, while hearing a separate health-care case, that the Justice Department lawyers submit a memorandum explaining the president’s comments. It had to be at least three pages, single-spaced. Attorney General Eric Holder complied with an eat-crow letter acknowledging “there is no dispute” the courts have power to review. But now we have a jurist acting like a junior-high-school teacher assigning extra homework. At least he didn’t make Holder write it 500 times on a blackboard. Did I mention, by the way, that Judge Smith is a Ronald Reagan appointee?

With so much anger over how some of our robed ones treat the law as their political playground, there are those who advocate a constitutional amendment specifying finite terms, perhaps 10 years, to increase accountability. Others argue that only an appointment for life can assure judicial independence as a protection against the “tyranny of the majority.”

Either way, the awesome power of federal courts, from District to Appeals to Supreme, is ultimately weakened by a loss of credibility when jurisprudence is replaced by imprudence. When politics obviously influences rulings, the judges are easy targets for cheap-shot politicians. Health care is an appropriate issue to frame this discussion, because for lots of people, the conduct of too many leaders has been sickening.

© 2012 Bob Franken

Distributed by King Features Syndicate, Inc.

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