Would Bobby Jindal Appoint Ted Cruz To The Supreme Court?

Senators think the Supreme Court needs some fixin'

I never wanted to be in the military. Mindless regimentation and homogenization have never been up my alley. But when the LGBT community started advocating for the right to serve, I was a supporter. Anyone who feels that that is the way they want to serve should have that right-- and should be admired for it. 

Marriage is another societal institution that has never had any allure for me. I embraced the gay aspects of not having to subject myself to institutions that make you just like everyone else in part so that I would never fall into that abyss. I hope you can guess that the "Castro clone" phase of gay "liberation" didn't thrill me either. I've written at some length about this topic before, and that's not where I'm headed today.

Like all gay people (except, it appears, Senator Jim Inhofe's "lots of friends in the gay community") and most Americans, I was thrilled when the Supreme Court handed down the decision that enshrined marriage equality as the law of the land. Republican politicians were less thrilled. Many have already been using it to demagogue and raise money and push their candidacies. The GOP presidential hopefuls have all pretty much condemned the decision, some with more hysteria than others. Piyush Jindal was first out of the box, with his suggestion to abolish the Supreme Court. But when the right-wing propaganda sheet National Review wanted a big-name rightist to rail about the decision, they plunged right to the bottom of the barrel and came up with, arguably, the most vicious homophobe in the 2016 GOP Clown Car.

Ted Cruz says he has some remedies for the Court's "lawlessness." He wrote about "justices violating their judicial oaths" and undermining "the very foundations of our representative form of government." Both the marriage decision and the Court's decision upholding the ACA, he wrote, "were judicial activism, plain and simple. Both were lawless."

That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.

But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . With each decision of ours that takes from the People a question properly left to them-- with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court-- we move one step closer to being reminded of our impotence.

This must stop. Liberty is in the balance.

...The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”

But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment-- the only one provided under our Constitution to cure judicial tyranny-- is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.

...As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist-- one of our nation’s greatest chief justices-- and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.

But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.

And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States-- to propose the amendments directly-- will grow stronger and stronger.

Baby is upset because the Court, most of whose judges were appointed by right-wing Republican presidents, didn't rule the way he wanted it to. All through the Court's history, partisans with a bent toward authoritarianism have come up with schemes like Cruz's to replace an independent judiciary with a politically controllable one.

Luckily, not even Republicans seem to see Cruz as a viable presidential nominee. The Fox News poll of likely Republican voters (from last week) shows the fascist-oriented Cruz with a mere 4%, not even close to JEB!'s 15% or The Donald's 11%. Also ahead of Cruz are Ben Carson (10%), Scott Walker (9%), Rand Paul (9%), Marco Rubio (8%), Huckabee (6%). He is, however, preferred over Lindsey Graham, Piyush Jindal, Rick Perry, Carly Fiorina, Rick Santorum, Chris Christie, and John Kasich. Maybe if he writes more term papers like the silly one above... 

Nah.