Bryan Fischer
An "independent" judiciary: independent of what?
By Bryan Fischer
November 9, 2010

The American Family Association, through its political arm, AFA Action, took the lead in the successful campaign to oust three Iowa state supreme court justices who had joined in a ruling which imposed same-sex marriage on the Hawkeye State by judicial fiat. We were joined in this campaign by our friends at the Family Research Council and the National Organization for Marriage.

All three judges were given the boot by substantial margins, something unprecedented in Iowa history. Since supreme court justices began facing retention votes in 1962, not a single justice had been turned out of office prior to last Tuesday. It was a stunning victory for judicial restraint and the institution of natural marriage.

These judges represented the worst in judicial activism, forcing their values down the throats of ordinary Iowans against the will of their elected representatives. The November 2 election was the first opportunity the citizen class had to strike back against the black-robed oligarchy our judiciary has become, and strike back they did.

There has been much weeping and wailing and gnashing of teeth in the liberal community over this victory for constitutional government. This is because what they have been unable to achieve through legislative means, they have been able to achieve through an out-of-control judiciary which legislates from the bench. No wonder there is so much hand-wringing on the left — their tyrannical stranglehold on public policy is now under full-scale assault.

All the arguments against throwing these hyperactive judges off the bench boiled down to one argument in the end: we need an "independent" judiciary.

This begs the question: independent of what? We can all agree that we need a judiciary that is independent of political pressure, bribery, and corruption.

However, that's not the kind of independence our friends on the left want. They want a judiciary which is untethered to the constitution and the law. That's something no stable society can afford. If judges operate independently of the constitution and the law, as these Iowa judges did, we no longer have the rule of law but the rule of men, something the Founders rightly despised.

The role of judges is not to make law but to apply it. When judges begin to legislate from the bench, usurping powers that properly belong to the legislative branch of government, they immediately forfeit their moral authority to exercise judicial power, and the people have every right to send them packing.

USA Today laughably tried to use John Roberts' famous umpire analogy by saying, "Imagine what would happen to the integrity of baseball if umpires were hounded from the field for making calls the home crowd didn't like."

That's the wrong question. The question is what would happen to umpires who ignored the established rules of baseball and made up their own rules as the game went along.

Let's say an umpire decided that this whole business of four balls and three strikes was egregious discrimination against batters — they only get three mistakes, while the pitcher gets four. So he suddenly decides to give batters four strikes rather than three. He wouldn't last past the top of the first inning. He'd rightly get "hounded from the field" by everybody in baseball for exceeding his jurisdiction. He would be the one compromising the integrity of the game, not those who held him accountable for overstepping his bounds.

Every umpire understands that his job is to apply the rules that are made by somebody else. Judges have exactly the same function in an ordered society. Once they think that they have the right to make up the rules themselves, they richly deserve an early retirement. And AFA is committed to help them get there, the sooner the better.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


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