By Jody Brown and Bill Fancher
Agape Press
June 3, 2004


A prominent pro-family leader says America is not supposed
to be governed by "robed masters." But in light of Tuesday's ruling that
the Partial-Birth Abortion Ban Act is unconstitutional, Gary Bauer says
that is exactly what is happening.

Phyllis Hamilton is a federal district court judge in San Francisco -- but
Bauer says she must believe herself to be a "higher authority" than the
elected officials in Congress and the president himself. How else, he
wonders, could the Clinton appointee justify striking down a ban on
partial-birth abortion that was passed by both houses of Congress and
signed by President Bush?

"Who is Phyllis Hamilton, the jurist who now apparently rules you?" Bauer
asks rhetorically. "We now know she believes our Constitution requires us
to allow a doctor to extract the body of a late-term unborn child from the
womb, puncture its skull, and extract its brains."

[Gary] Bauer, obviously upset at this latest example of judicial activism, says
Hamilton is a member of what he calls "the imperial judiciary."
"Judge Hamilton has determined that only she has the correct
interpretation of the requirements of the Constitution where, by the way,
the word 'abortion' is not mentioned," he says, noting Hamilton is the
same judge who ruled last year it was permissible for a local school
district -- in the interest of multiculturalism -- to require children to
memorize verses from the Koran during a two-week segment on Islam.
He doubts Hamilton would be as understanding were the study focus on
Christianity or Judaism. "Can you imagine how she would rule if the same
school district required students to memorize verses from the Bible or
Torah?" he asks.

According to Bauer, Hamilton is cut from the same cloth as those justices
on the 9th U.S. Circuit Court of Appeals who declared that the two-word
phrase "under God" in the Pledge of Allegiance is unconstitutional -- a
case heard before the U.S. Supreme Court a few months ago and a ruling for
which is expected before the end of June.

The former presidential candidate says regardless of the outcome of the
Pledge case or the ultimate decision regarding the constitutionality of
the Partial-Birth Abortion Ban Act, "we are not supposed to be governed by
robed masters." He points out that both the executive and judicial
branches of the federal government have equal authority to interpret the
Constitution -- and it is time, he says, for them to "use the remedies at
their disposal to stop the out-of-control courts."

But Will They?

Indeed, Congress has the authority to limit the jurisdiction of courts in
certain areas -- and conservative lawmakers say they know how to put a
stop to activist judges rewriting the U.S. Constitution to fit their
personal agendas.

For example, Congress could tell the courts they cannot rule on any
religious issue. Many conservative Christians are asking Congress to do
exactly that. Senator Sam Brownback recently addressed that issue.
"Our limitation is on appellate court review, so we could limit the
circuit court or the Supreme Court from reviewing a particular issue," the
senator explains. "But then that leaves it wide open to state supreme
courts to handling the issue and issuing whatever opinion that they choose
-- or lower federal courts from issuing opinions in whatever form that
they choose."

The Kansas Republican says Congress may take that route to restrict the
courts -- but he thinks the solution to judicial activism is to make sure
activist judges are not put on the bench. "I hope states -- and we at the
federal level -- start looking at judges when they clearly are writing the
Constitution [and] start pressing them on their constitutional roles,
whether they're filling it rightly as a judge," Brownback says.

A Supreme Solution?

Evidently the chief justice of the highest court in the land is getting
fed up as well. Family News In Focus reports that U.S. Supreme Court Chief
Justice William Rehnquist has decided it is time to review what is
happening in America's court system.

Rehnquist, the report says, has announced creation of a new commission
that will look into implementation of the Judicial Conduct and Disability
Act of 1980, which could be used by citizens to remove judges who
legislate from the bench. A professor of constitutional law at Pepperdine
University tells FNIF that the commission, headed by Justice Stephen
Breyer, will investigate all levels of the federal courts -- and how they
handle judicial misconduct.

"What the task force is going to inquire [about] is whether these lesser
problems have been adequately investigated and whether the results of
their investigations have been made public to restore confidence in the
bench," says Professor Douglas Kmiec.

Tom Minnery of Focus on the Family says restoring that confidence will
likely be a difficult task, explaining that often judges will not respond
unless they are faced with an authentic threat of being impeached or voted
out of office. But the mere effort, he says, "undoubtedly will provide
good pressure for judges to think twice about social re-engineering of our
entire society."