Madness and the judicial mind

By A.J. DiCintio

A recent AP article examines charges of inappropriate conduct by retired Supreme Court Justice Sandra Day O'Connor, who works part-time hearing federal appeals cases though she travels about the country arguing against the election of judges and supporting ballot measures that seek to codify her belief into law.

But while O'Connor may not be upholding the spirit of rules forbidding judges to engage in behavior that gives even the appearance of bias, the fact is that for her as well as all but a very small number of her colleagues, state of mind matters most in how she decides cases, not her associations, which simply illustrate that nature urges more than birds of a feather to flock together.

However, the article is interesting for other reasons, especially its pointing out O'Connor's age (81), which occasions thoughts about whether an age limit for federal judges might be in the nation's best interests.

(Coincidentally, a contemporaneous AP article recounts the work of Judge Wesley Brown, who sits part-time on the federal bench at 103.)

In truth, however, it's not an age cut-off the nation desperately needs for judges; it's a job cut-off for judicial maniacs who can't resist the compulsion to encroach on the powers of the other branches of government.

And, yes, intellectually and historically "maniacs" is exactly the right term if we consider that when Jefferson spoke of the imperative of removing usurpers from the bench, he compared the task to the necessity of committing "honest maniacs" to a hospital for the mentally ill.

Now, we have only to consider the behavior of a jurist such as Justice Stephen Breyer — who, in effect, proclaims that the job of a judge is to decide everything — to understand Jefferson was absolutely correct to observe that a judge of any age is highly susceptible to falling victim to the dangerous madness Washington defined as "that love of power, and proneness to abuse it, which predominates in the human heart."

Which brings us back to O'Connor, who behaved as a Jeffersonian during most of her judicial tenure but toward the end of her career and especially since her retirement has exhibited increasing symptoms of the illness Jefferson regarded as one of the most important internal threats to the life of the American Republic.

Consider, for instance, O'Connor's blithe acceptance of the notion that without contradicting the oath they swore to base their decisions upon the Constitution and laws of the United States, judges may take foreign law into account in deciding a case.

The former justice's unforgiveable Pollyannaishness aside, the fact is that the notion is so blatantly and stupidly embarrassing it has prompted liberals to pervert language, the ancient stratagem insidious frauds have always employed when faced with the problem of obscuring their mad irrationality.

Thus, liberals puffed into being the hocus-pocus of "informed," as in, "The judges have not gone outside the Constitution or American law to decide this case; they have simply decided it while being informed by foreign law."

All to be said of persons who claim to find objective meaning in that disgusting lump of reeking mumbo-jumbo is that they are kin to the kind of contemptible lunatics who solemnly announce they have computed the maximum number of angels that can squeeze together on the head of a pin.

Yet O'Connor argues that "conclusions reached by other countries and by the international community, although not formally binding upon our decisions, should at times constitute persuasive authority [emphasis added] in American courts."

But not only that insanity.

She travels from state to state lecturing citizens about the horror of permitting themselves to throw out judges they deem to have abused the power of their office, a display of arrogance through which she demonstrates her sisterhood with all who turn sour-faced when confronted with Jefferson's belief that there is "no safe repository for the ultimate powers of society but the people themselves."

So obsessed about the independence of the judiciary is O'Connor that she has virtually nothing to say about the profound responsibility judges share with the other branches of government to, in Washington's words, "confine themselves within their respective constitutional spheres."

Actually, she is maniacally obsessed to the point that she perceives the judiciary as entirely disconnected from the entire culture.

Indeed, it is that idiocy which allowed her at the Arab Judicial Forum held in the Kingdom of Bahrain in September of '03 to praise Bahrain for "the probity and impartiality of [its] judges" as the basis for that nation's "guarantee of rights and freedoms."

And to gush over Egypt's constitution for its language that affirms "the independence and immunity of the judiciary [as] two basic guarantees to safeguard rights and liberties [in Egypt]."

If a person who spews such perversity isn't dangerously crazy, the concept of human madness is a fiction.

To conclude, the crucially important "O'Connor Problem" lies not in questions of age or associations but in a state of mind characterized by the love and abuse of power.

If Jefferson were living today, his shock at how many power maddened judges sit on our courts would be great; but a million times greater would be his disappointment that the American people have done so little to remove "maniacs" from the bench, thereby failing to obey "the first and supreme law," which is "[saving] the Republic."

© A.J. DiCintio