Friday, October 28, 2005

Baseball, Sam Houston, and Those Judges...

Driving (again) from Tyler to Houston, I passed the ten-story statue of Sam Houston. Because I'd been nodding off, it was a good time to stop. For the first time I got there during the day. (Have you been there?) The statue's cool, but this time I made it to the gift shop. They were closing, so I walked straight in and asked, "Do you have anything with that stuff from the plaque on it?" She pointed me to a postcard. I'd have spent more. I'd like it on a tee-shirt, a coffee cup, or a plaque of my own. But all they had was the postcard. I want to share with you the quote the artist (or the Masonic Lodge behind the statue) chose to put on the brass plaque at the statue's base.

"The great misfortune is that a notion obtains with those in power, that the world, or the people require more governing than is necessary. To govern too well is a great science, but no country is ever improved by too much governing . . . most men think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Sam Houston.

Now for some baseball. With the recent baseball overdose here in the Bayou City, you'll understand this analogy. John Roberts said recently that he sees his role like that of an umpire, calling balls and strikes. But Roberts didn't elaborate--so I will. The umpire-judge doesn't make rules. And he doesn't play the game. The judge calls balls and strikes. What he does not do is redesign the strike zone. That legislative decision was made elsewhere. Another body made the rules. The umpire merely applies them. A strike is above the knees, below the shoulders, and above the plate. Anything else is a ball. Sure, the umpire is imperfect. But he knows his role: to understand the law as it comes down to him and apply it to everything the pitcher throws at him.

What is an activist judge? He's the umpire who makes up a new strike zone.

And activist judges are judges who step outside their proper role as judges. They are like the politicians who enter office seeking new ways to assert and grow their own power and authority. Or like the ones who think only of creating a legacy. In other words, these people, both judges and politicians, are the ones Sam Houston complained of: "they think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Our system requires a Separation of Powers. And on rare occasions, the Executive Branch shares a legislative role, and the Legislative Branch shares an executive role. For example, the Executive takes on a legislative role when he uses his veto power (did you know Bush has never used that power?). And the legislature takes on an executive role when it is required to ratify treaties entered by the president with a 2/3 vote. But at no time does the Judicial Branch (at least as contemplated by the Constitution) share either. This third branch of our government is entirely different from the first two. Can you see why? The first two are made up entirely of politicians. They look at problems, search their hearts, talk to voters, and sponsor and draft laws. But the courts are entirely different. They (usually) don't run for office, they do not respond to voters, they do not listen to anyone's heart, and they do not create new law (other than "interstitially"). Moreover, the Founders described the third branch, the Judicial Branch, as being by far, the weakest of the three.

. . . But after an exhaustive search, I can't find the quote on that (!). Robert Bork put it this way: "There is no faintest hint in the Constitution, however, that the judiciary shares any of the legislative or executive power. The intended function of the federal courts is to apply the law as it comes to them from the hands of others."

The Tempting of America: the Political Seduction of the Law, 1990. 4.


Blogger J Holden said...

steven - you and I are on such a similar plane in terms of how we think and view the judicial branch/process

thanks for putting all this into words and for allowing me to delve into this most critical of issues that i have been wanting to delve into

i watched quite a bit of the senate judiciary hearings with Roberts (way too much time on my hands) and came away thoroughly impressed by him

but when he used the analogy of being an umpire - merely APPLYING the law as it stands, instead of CREATING the law as he sees fit - i knew we had a proper SC justice on our hands

oh yea, and you're going on my link list, if you dont mind

6:20 PM  
Blogger e said...

so my grandparents live in northeast tx...needless to say...i've driven by that sam houston a time or two...but the first time i ever saw it we were head to the grandfolks house and i had fallen asleep...when i woke up it was already dark outside and that dang statue glows in the dark...and i swear to you i thought it was jesus for a good 30 seconds...i was freaking out...THE DANG THING GLOWS IN THE FREAKING DARK!!! WHATEVER! that is totally uncalled for...but now that it has been a few's just a funny story...but really...i almost wet my pants...a huge glow in the dark jesus...not ok!

7:59 PM  
Blogger Steven Wales said...

You put me in mind of the old Paul Newman hit song:

I don't care if it rains or freezes,
Long as I've got my plastic Jesus,
A-sittin on the dashboard of my car!

Goin' ninety, I ain't scary,
Because I've got the Virgin Mary,
Assurin me that I won't go to Hell.

You don't remember that one? Sure, it's from Cool Hand Luke, a film we studied exhaustively in a course I took called "Images of Christ in the Film." I kid you not. The symbolism is eerie, though of course, none of it is accidental, in fact, it's heavy-handed, and symbolism or not, the guy is at best an ANTI-hero.

But one thing about he of the cool hands--no one will ever accuse him of glowing in the dark.

And to J: I am most honored....

1:41 AM  

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