Thursday, April 05, 2012

Memo to Appeals Court Judge Jerry Smith: Bush blasted 'unelected judges'

There is an old saying: Think before you speak. Appeals Court Judge Jerry Smith blasted President Obama's comments on the healthcare case in Supreme Court and about judges being an "unelected group of people." Well, in November 15, 2007, President Bush blasted 'unelected judges' in his remarks at Federalist Society's 25th annual gala. Here is an excerpt from the transcript from the archives:

When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government's powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities -- and resist the temptation to encroach on the powers the Constitution accords to others. (Applause.)

For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop. (Applause.)

Tonight I will discuss a judicial philosophy that is based on what our Founders intended. I'm going to talk about the importance of having good judges who adhere to this philosophy. And I will explain the need to reform a confirmation process that is making it more difficult to persuade decent and intelligence [sic] people to accept the call to public service.

The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say. And I ask my nominees to the federal bench to take seriously their own oath to uphold the Constitution -- and that is because I strongly believe our freedom depends on the willingness of judges to be bound by the Constitution and the law. (Applause.)

Others take a different view. Advocates of a more active role for judges sometimes talk of a "living Constitution." In practice, a living Constitution means whatever these activists want it to mean. They forgot that our Constitution lives because we respect it enough to adhere to its words. (Applause.) Ours is the oldest written Constitution in the world. It is the foundation of America's experiment in self-government. And it will continue to live only so long as we continue to recognize its wisdom and division of authority.

In his confirmation hearings before the Senate, one judge I nominated to the bench used the analogy of a baseball umpire. He said, "Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." But when people see the umpire rooting for one team, public confidence in our courts is eroded, the sense of unfairness is heightened and our political debates are poisoned. So we will insist on legislatures that legislate, on courts that adjudicate, and on judges who call the game fairly. (Applause.)

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