November 24, 2002
"And if a house be divided against
itself, that house cannot stand." Mark 3:25
Sat Nov 16, 5:29 PM ET
HOLLAND, Associated Press Writer
WASHINGTON (AP) - An appeals court
judge accused the country's
highest court on Saturday of ignoring the
tough cases and awaiting an opportunity to strike down
Judge Laurence H. Silberman, a semi-retired
judge on the U.S. Court
of Appeals for the District of Columbia, used a
speech at the
conservative legal group the Federalist Society for the
harsh criticism of the Supreme Court.
"The court's policy
choices masquerading as constitutional law are
generally accepted so long as
they are well received by elites. Ironically, the Supreme Court has become what
the (Constitution) framers envisioned for the role of the Senate," Silberman
said. "I think elite public opinion is the primary guide to the Supreme Court."
Silberman was appointed to the bench by President Reagan in 1985. He
took senior status in 2000, but serves on a review court which considers the
government's authority for searches and wiretaps.
The judge said the
Supreme Court "has behaved irresponsibly in
ducking" affirmative action
cases. He also said he believes a majority of the nine justices want to abolish
capital punishment but they may be put off by public support for the death
Justice Sandra Day O'Connor (news - web sites), who is
swing vote in capital cases, has been testing the waters to see
people would respond to a ruling that declared executions
unconstitutional, Silberman said.
Law professors and other lawyers
at the event said they do not expect the Supreme Court to strike down capital
"It would be a very sudden and dramatic reversal," said Kent
Scheidegger, legal director of the pro-death penalty Criminal Justice Legal
Eugene Volokh, a former law clerk to O'Connor, said he
most Americans she believes that it's not only constitutionally
permissible, but also sometimes morally the right solution" to impose the
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