Five Simple Steps SeriesOpinionPolitics

Five Simple Steps to Restore Law and Order to the Judiciary

We need to establish consequences for activist judges and the drift of precedent-based law.

In America, we have a legal system that was originally designed to protect the innocent (until proven guilty) while allowing the injured or aggrieved the ability to seek justice. It was a system based on adherence to a strict code of ethics and guided by laws and statutes created by the Legislative Branch.

Unfortunately, precedent-based verdicts and outright activism have greatly diminished the rule of law, sending us precariously close to judicial tyranny.

Judge Colleen Kollar-Kotelly is a perfect example. Recently she ruled against President Trump’s ban on transgenders in the military. Ironically, part of her ruling confirmed Obama’s authority (as Commander in Chief over the military) to allow transgenders while refusing Trump’s authority to ban them.

Judge Derrick K. Watson is another example. In October, he issued an injunction to thwart Trump’s temporary travel ban. Last week (December 4) the Supreme Court placed a stay on Judge Watson’s injunction, allowing the travel ban to proceed pending a verdict from the Ninth Circuit court of appeals.

We have separate branches of government, each vested with specific limited powers, to create necessary checks and balances, but the scales are no longer balanced.

It’s time we encourage our legislators to correct our heading before we drift too far off course.

First, our legislators should establish term limits (via Constitutional amendment) for all judicial appointments, along with creating a concrete path to terminate appointments via judicial review.

Second, our legislators need to establish a robust judicial review process to reduce the potential of legislating from the bench. Enforcement should be tiered as follows:

1st Offense: Mandatory 1-year peer review of all rulings (prior to judgment).
2nd Offense: Mandatory 3-month (unpaid) suspension and 2-year peer review of all rulings.
3rd Offense: Discretionary termination or mandatory doubling of 2nd offense consequences.
4th Offense: Mandatory appointment termination.

Third, our legislators need to reinforce the boundaries of judiciary power by establishing clear guidelines for the limit and consequences of their verdicts, requiring each verdict to be based on the narrowest interpretation of existing law.

No more ruling by precedent! Allowing precedent-based rulings leads down a very slippery slope of potential compromise and a slow drift away from the original intent of the law.

If an existing law is viewed as unjust or out of date, it is the role of legislators to repeal, amend, or replace the law, not the judiciary. That doesn’t mean a law can never be challenged. It simply places a barrier in the way of activist judges intent on imposing their opinion above the law.

No more legislating from the bench!

Every decision a judge makes should be subject to judicial review, whether it’s a verdict on a case or a decision not to hear a case. By holding justices accountable for both their verdicts and their dismissal of cases, a purer form of justice will prevail.

By creating term limits and allowing the judicial review process to police renegade judges, our system would also be less prone to unnecessary and burdensome appeals.

My fourth and fifth recommendations may be considered “one” under Tort reform, but I thought it was better to separate them into two categories.

Fourth, our legislators need to establish stringent financial consequences for parties pursuing frivolous lawsuits, even if the case is not heard. Frivolous lawsuits place an administrative burden on an already overwhelmed system. Establishing penalties would deter frivolous lawsuits (and some class actions), freeing up desperately needed resources.

Fifth, our legislators need to establish limits on all classifications of damage awards, especially punitive damages. Limiting damages will (1) reduce the administrative burden placed on the system by lawsuits simply seeking to enrich the plaintiff(s) (and lawyers), and (2) drastically reduce insurance premiums that are inflated to offset legal expenses and settlements.

The responsibility for judicial reform lays squarely at the feet of our legislators. If they can find the will to implement reform, our system could be streamlined to dispense real justice based on the rule of law rather than the creation of it, all while reducing ancillary costs the current system exacerbates.

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