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Creating a new federal court

By Bruce Walker
web posted May 2, 2005

Perhaps conservatives are approaching the whole issue of federal courts the wrong way. Leftists insist that we need federal judges to protect us from – whom? – ourselves, we must presume, the people, the voters, the governed. Rather than belabor the power and the intrusion of federal judges and federal courts, perhaps conservatives should counter-punch.

If judicially determined federal constitutional decisions are so vital to our safety from ourselves, then why do we allow a system which permits the plebian classes – citizens, elected officials and the like – to make bad decisions which aristocrats must then patiently reconstruct in the proper form. Why allow trivial entities like, say, the Congress to pass laws which violate the sacrosanct divination of federal judges?

There is a solution: create a National Court of Constitutional Interpretation. If words still mean something in the Never-Never Land of Leftism, then Congress retains the power to create federal courts, rather like creating a peerage in Britain. Very much like it, as a matter of fact. The current feudal lords of duchies and baronies like the “Eighth Circuit Court of Appeals” or the “District Court for the Southern District of New York” have dukes and barons in place, but they had a maddening habit of reading the same text differently.

Take the freedom of religious expression clause of the First Amendment, for example. Does it mean that children simply are denied the right to express their religious freedom by prayer in school, or does it rather mean that parents, teachers and coaches are also denied the right to say a traditional prayer before a high school football game?

Should this freedom of religious expression also be extended to forbid the mention of the Blessed Creator in a yeshiva? Should it be extended to forbid the mention of Christ in theology classes? Must it – for our own sake! – be used to ban theology classes and seminary schools entirely?

The answer to create a single federal court with exclusive jurisdiction to determine all these federal constitutional issues, so that we all know what is required of us by the judiciary. This court, moreover, should be given not just the power, but the duty to grant advisory opinions when requested by a resolution of the House or of the Senate or of the President. What this would mean is that before the text of Campaign Finance Reform or, say, an Act to Prevent Anyone But Licensed Pundits from Commenting on Election or Politics, is passed, the National Court of Constitutional Interpretation to review the text like a cranky English teaching, telling her students, the people, our elected representatives, and other assorted subjects, what was allowed and what was not allowed.

The catch, of course, is to appoint the right people to this bench. If Republicans have the votes to go nuclear, then they should go thermonuclear and the blast should be measured in megatons and not kilotons. Luck favors the bold, or as the Gipper said “All they can do is hang us from a higher tree.” No half measures: transformation.

Have the size of the court seven members and grant it exclusive jurisdiction, specifically to the exclusion of the Supreme Court, on the constitutional issues. Appoint seven women and men who are black, Hispanic, Asian, female and very conservative. Appoint an openly gay conservative. Choose a disabled conservative. Make the price for opposing these nominees that every constituency in the Leftist plantation is quietly offended.

Then after the squawking and squealing, then watch while the Senate confirms them by lopsided votes, proving just how hollow the righteous indignation of the Left was. Judge Brown, for example, a very popular conservative black woman on the California Supreme Court, should be the first nominee. Vote against her, Robert K. Byrd: “Make my day.”

She would be confirmed by a vote of about 85 to 15. Then appoint Miguel Estrada, the first Hispanic, and he would be confirmed by a similar margin. At that point, all the fear-mongering of the Left looks puerile, even infantile. If the Left wants to launch a major campaign against the next nominee, say Judge Pickering, let them. At that point the good guys would already have a 2 to 0 majority on this court. We can stop.

But it would be a good idea to build in a safeguard against an entrenched National Court of Constitutional Interpretation by providing after each general election (every two years) the size of the court increases by one member. That would allow the judiciary to be a legitimate campaign issue in every general federal election and it would allow a gradual, but certain, readjustment of this pivotal court to reflect the will of those folks for whom this vast structure was created – us, the people.

Bruce Walker is a contributing editor with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.


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