Add Judicial Overreach to the Perils of Bureaucratic Leftism

Submitted by Andy Steinfeld (United States), Sep 24, 2002 at 15:14

Using judges to end-run elected officials is increasingly a preferred method of the left. It elevates political issues to the status of legal questions, and can result in a court doing the bidding of a political movement. This tactic is used both internationally and domestically. Consider the following:

Henry Kissinger, in his recent book, "Does America Need A Foreign Policy?," notes the trend toward elevating judges above elected officials in matters of international relations. The attempted extradition of former Chilean President Augusto Pinochet from Britain to Spain to stand trial for human rights abuses against Spanish citizens, while ultimately unsuccessful, saw a judge in Spain get a former leader of a second country imprisoned in a third country pending review of his request. Dr. Kissinger concedes the legitimacy of tribunals convened ad hoc to investigate specific wrongs, such as the trial of Slobadan Milosevic currently ongoing in the Hague. But he warns of the implications of allowing judges to indict the leaders of other countries ad hominem to further their own political agendas, agendas which in most cases are not subject to review by the electorate.

Closer to home, Californians voted several years ago to scrap affirmative action. The results of this popular referendum were challenged in federal district court. The district court threw out the vote, but was subsequently overruled by the appeals court, which reinstated the results of the referendum. Nonetheless, the rear-guard action got off to a strong start. In the years since, the University of California has repeatedly publicized its implementation of new policies designed to encourage increased racial diversity among its students. These policies violate the spirit, if not the letter, of the referendum passed by the people of California. The man behind the first referendum, University of California Regent Ward Connerly, is now spearheading a second anti-affirmative-action referendum, because the first, though victorious at the polls, has been largely ignored in practice.

The point is not whether Augusto Pinochet should be tried for human rights abuses or whether the University of California would benefit from increased racial diversity among its student body. The point is that democracies exist to allow all parties the opportunity to present their points of view, and to allow the people to choose among them subject to constitutional constraints. When one side of the debate refuses to recognize that the other side won, it weakens the system for all.

This campaign of "politics by other means" weakens the system by distorting the clarity which open elections in the first instance, and the public actions of elected officials in the second instance, provide to the political process. Even where the left's final objective of a court-ordered result is not obtained, judicial intervention in the political process cloaks the left's anti-democratic bias in a veil of legitimacy, and muddies the political waters to such an extent that well-regarded institutions such as the University of California are proud to publicize their efforts to subvert the popular will. Opponents of bureaucratic leftism might do well to take a closer look at the left's improper use of the judiciary to further its political agenda.

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