The regular readers of J.A.I.L. News Journals have oft heard
the statement that J.A.I.L. will one day eventually encompass this entire
country from sea to shining sea, as is also announced on our website at
Nothing makes a point like one's
opposition, and in this case, it is the American Bar Association, to
wit, "Half of U.S. Sees 'Judicial Activism Crisis.' " In other words,
according to a poll conducted by the ABA, half of America sees the judiciary for
what it is, an unaccountable entity in need of oversight outside and beyond
itself. While this ABA article says nothing directly to
confirm J.A.I.L.'s claim that it will one day encompass all America,
it does layout the very reason why this will be so.
The American Bar Association's
answer to this "overwhelming problem" reflected in their poll is to "educate"
the American People on how the judiciary works. Of course, our respond is
to say that the more the ABA tries to inform the American People on
how the judiciary works, the more People will see the judiciary for what
it is -- a totally corrupt and unaccountable entity that has totally run
amuck with the Constitution and the laws of our nation -- men who make
up laws as they go.
It should be quite
interesting watching the ABA trying to place a good face on our nation's
judiciary. Like bring gasoline to a fire, their comments will surely fan
the flames of controversy, enlarging the fireline. Thousands of People with
experience will rush to the front lines of the controversy to engage with the
ABA. You can count on the fact that every word of the ABA will be dissected
and will become the subject of another controversial subject of debate. The
bottom line is, if the ABA is thinks the viewpoints of the American People are
misguided, just wait until the ABA tries to clear up the problem and give the
judiciary a face lift. I'm looking forward to this engagement. In reality,
the ABA will draw more attention to the answer found
J.A.I.L.> located above in this heading.
ABA Journal Survey Results
Surprise Some Legal Experts BY MARTHA NEIL
More than half of
Americans are angry and disappointed with the nation's judiciary, a new survey
done for the ABA Journal eReport shows. A majority of the survey respondents
agreed with statements that "judicial activism" has reached the crisis stage,
and that judges who ignore voters' values should be impeached. Nearly half
agreed with a congressman who said judges are "arrogant, out-of-control and
The survey results surprised some legal experts with the
extent of dissatisfaction shown toward the judiciary. "These are surprisingly
large numbers," says Mark V. Tushnet, a constitutional law professor at
Georgetown University Law Center in Washington, D.C.
"These results are
simply scary," adds Charles G. Geyh, a constitutional law professor at Indiana
University School of Law in Bloomington.
The Opinion Research Corp.
conducted the survey, calling 1,016 adults throughout the country in early
September. Participants included 505 men and 511 women aged 18 or older. Due to
the effects of Hurricane Katrina, residents of Alabama, Louisiana and
Mississippi were not polled.
Calls were made to a random sample of
American households. Those surveyed were asked questions about their age and
education levels, and were asked to give one of six answers-strongly agree,
somewhat agree, neither agree nor disagree, somewhat disagree, strongly disagree
or don't know-in response to public statements criticizing the
Fifty-six percent of the respondents strongly or somewhat
agreed with the opinions expressed in each of two survey statements:
a.. A U.S. congressman has said, "Judicial activism . seems
to have reached a crisis. Judges routinely overrule the will of the people,
invent new rights and ignore traditional morality." (Twenty-nine percent
strongly agreed and 27 percent somewhat agreed.) a.. A state
governor has said that court opinions should be in line with voters' values, and
judges who repeatedly ignore those values should be impeached. (Twenty-eight
percent strongly agreed and 28 percent somewhat agreed.) Forty-six percent
strongly or somewhat agreed with the opinion expressed in a third
a.. A U.S. congressman has called judges arrogant,
out-of-control and unaccountable. (Twenty-one percent strongly agreed and 25
percent somewhat agreed.) Among the respondents, younger adults were less
likely than older adults to agree with all three statements. Those with a
college education were more likely to disagree with the statements than high
Only 30 percent of respondents somewhat or strongly
disagreed with the first statement and 32 percent felt the same way about the
second statement. The most disagreement was reflected in the responses to the
third statement, with which 38 percent took issue.
Two percent to 3
percent responded "don't know," and the remainder of the respondents neither
agreed nor disagreed with the statements.
The margin of error for the
survey is plus or minus 3 percentage points, at the 95 percent confidence level.
Opinion Research Corp. says survey results were "weighted by age, sex,
geographic region and race to ensure reliable and accurate representation of the
The congressman referenced in the first question is
Rep. Lamar Smith, R-Texas, who made the comment at an April 2005 rally in
Washington, D.C. The governor in the second question is Matt Blunt, a Missouri
Republican, who reportedly made the comment during an interview with a religious
publication in May 2005. The congressman in the third question is House Majority
Leader Tom DeLay of Texas, who made the comment in March 2005.
legal scholars responding to the survey results were startled by the
Georgetown's Tushnet says he didn't realize the level of
dissatisfaction was so high. "What I had thought was the case was that there was
a significantly higher residue of general respect for the courts," he says. "And
these numbers suggest that that's not true."
Geyh of Indiana University
says the survey suggests "a trajectory" upward in the number of people unhappy
with the American judiciary-apparently simply because these critics disagree
with the law that judges have a duty to apply.
The idea that judges
should "somehow follow the voters' views really reflects a fundamental
misunderstanding of what judges are supposed to do," he continues. "They should
only be criticized when they ignore the law and start infusing their own values
into the law regardless of the law."
But one legal scholar with an
alternative viewpoint is not surprised. The survey results reflect the reality
that "there is a lot of judicial activism under any definition," says John O.
McGinnis, a professor at Northwestern University School of Law in Chicago.
"This problem has been coming for a very long time," he says. "I think,
for most of [the past] century, the idea of the Constitution as a document that
should be interpreted formally and without regard to the judge's own values has
been under attack." Judges today also do not give due deference to legislative
decisions, and too frequently strike down statutory law, he adds.
the problem, too, McGinnis believes, is that legislators on both sides of the
aisle are conducting judicial confirmation hearings as though the candidates'
personal political views are relevant to their role on the bench. "Everyone
thinks that's what [judges] do, and they just want their own values" to be
reflected by the judiciary, McGinnis says.
In a written statement, Rep.
Smith said judges today "seem to be promoters of a partisan agenda, not wise
teachers relying on established law." As a co-equal branch of the federal
government, however, the judiciary is subject to congressional oversight as part
of our system of checks and balances, he continued. So "Congress is right to
evaluate judges when they behave like unelected superlegislators who want to
implement their own social agenda."
Spokespersons for Blunt and DeLay
did not respond to requests for comment.
The survey figures did not catch
ABA President Michael S. Greco by surprise, either. Instead, he views the
results as further confirmation of the need for new ABA programs now under way
to educate the public about how American government works, and the role played
by judges in a democratic society. Judicial independence is also the subject of
three feature articles in the October issue of the ABA Journal.
Greco's first actions after taking office in August was to appoint a Commission
on Civic Education and the Separation of Powers. In his President's Message in
the October Journal, Greco said the commission was created to address what he
terms an "alarming increase in rhetorical and physical attacks on the
judiciary." The bipartisan commission is intended to educate Americans about the
role of an independent judiciary in U.S. government.
A poll commissioned
by the ABA in July from Harris Interactive showed a "shocking" 40 percent of
respondents could not correctly identify the three branches of government, Greco
The commission will help rectify this situation, Greco says, in
two ways: First, it will "find out why it is that half the people polled don't
know how their government works." Second, it will work with teachers' groups to
address "this sorry state of civic education."
Greco hopes to bring
lawyers throughout the country into the nation's schools on Law Day as part of a
larger program of civic education about the separation of powers and the role of
the judiciary. "This is in the preliminary stages, but the thought is, around
Law Day, have a program that is carried on C-Span and perhaps beamed into every
school in the country."
Held on May 1 each year, Law Day is recognized as
a time to focus on how the rule of law makes democracy possible.
H. Rawson Jr., a Cleveland lawyer who chairs the commission, emphasizes that
these educational efforts will be nonpartisan. "Our objective is not to get into
the politics of judicial selection, but rather to fill what appears to be a gap
in general public understanding of the fundamental role of a judge," he says,
and "restore what needs restoring-the confidence and trust of the American
public in the judiciary."
The commission has two honorary co-chairs:
retiring U.S. Supreme Court Justice Sandra Day O'Connor and former U.S. Sen.
Bill Bradley of New Jersey.
The October ABA Journal includes three
features on judicial independence:
a.. A roundtable
discussion by legal experts on recent attacks on the judicial branch.
b.. A look at hot-button cases that are raising the hackles of
the American public. c.. A report on how Serbia is addressing
issues of judicial independence and the rule of law in its effort to enter the