RUSH: Steve in Rochester, Minnesota. Welcome to the EIB Network. Hello.
CALLER: Dittos, Rush, this is Steve. I have a question about the judges. I’ve been frustrated over the years at their decisions.
RUSH: Yes.
CALLER: And George W. Bush, our president, has an opportunity coming up to nominate several different judges of varying different levels.
RUSH: Yes.
CALLER: And I’m worried that it’s a crapshoot. I looked at George H. W. Bush 41 and see the likes the David Souter getting on the Supreme Court, and wondering what process is there that will assure us —
RUSH: There is none. I mean, there’s no guarantee. Nobody is suggesting there should be. Nobody is demanding a certain kind of judge be appointed in order fix the problem. That’s not where the problem resides precisely because of what you’ve said. You cannot guarantee anything. Now, you can make a pretty good educated guess going in the kind of judge based on their judicial record. Do they uphold the Constitution? Do they look for the original intent of the Constitution? Do they legislate from the bench? Do they write their own laws? If they have a record of doing that, you can pretty much bet they’re going to continue to. If they don’t have a record of doing that, well, you roll the dice and say they probably will continue not to. The problem is that because the evolution of our society is such that most people don’t think that there is a check on the judiciary, that there is no balance.
How many of you people have heard the term judicial independence? Senator Kennedy used this term in his lashing out at Tom DeLay. Judicial independence. Well, judicial independence generally has its roots in the fact that judges are appointed for life, and that was originally done to insulate them from the day-to-day political concerns that occur in society and in the country, supposed to insulate them from that. Independent did not mean to grant them power greater than the other two branches of government. We all hear about the checks and balances between the executive and legislative branch, and we hear that the executive can check the legislative with vetoes, but the legislative can override it if they come up with the votes. The Senate, we’re told, is where legislation slows down, where the coffee is cooled in order to make sure that rampant change does not occur too fast. The founders did not like rampant change. They wanted to limit government. That’s what the Bill of Rights is all about.
We never hear about the term “checks and balances” on the judiciary. Why? Because ever since Marbury v. Madison, the Supreme Court assigned itself the role of determining what’s constitutional or not. I hate to tell you people, but the Constitution and the Founding Fathers never established that as a role of the Supreme Court to determine what’s constitutional or not. The Supreme Court, John Marshall just said, (paraphrasing) “You know, we’re going to use this case. We’re going to be the arbiters,” and that started the process, and that was back in the 1800s. And this has been going on, slowly and slowly building to the point now where judicial independence means that whatever they say goes, and there’s no check, there’s no balance, you can’t do anything about it. The left has come 
to love this, because the left likes judges that legislate liberalism from the bench since liberals cannot win their legislation as often as they’d like in Congress or in the state legislatures. It’s not popular. Liberalism has never has been popular. It’s been something that’s imposed on people. It’s been something that’s forced on them, and not just from judges and not just from branches of government, but at the state level in any number of hideous ways, political correctness. Who can say what, when. Who can’t say what, when. That’s liberalism, finding its way through any number of pressures. So the effort here is really to establish the fact that Congress can check and can balance the judiciary so that if they go overboard and out of bounds and do things unconstitutional that they, too — I mean, the judicial can say, “That’s unconstitutional. You can’t do that,” but nobody can tell them what they do is unconstitutional the way it’s set up, and that’s all anybody is talking about here, is setting up some checks and balances via the elected representatives of the people to deal with this.
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Read Marbury v. Madison?
<a target=new href=”http://www.jmu.edu/madison/center/main_pages/madison_archives/era/judicial/bkgrnd.htm”>(Background and Explanation -Melvin I. Urofsky: 1803) </a>
<*ICON*> eStack: <a target=new href=””>(Marbury v. Madison Established Supreme <br>Court’s Role As Final Arbiter of the Constitution -07.01.03)</a>
