Black Robed Blunder

If you ever wonder how far off track the judicial branch of government can stray cast your eyes to the Sunshine state where a county court judge actually struck down a law on the basis that it was rewritten by legislators, not by the judiciary.

Activist judges who legislate from the bench are nothing new, but Miami-Dade Circuit Court Judge Milton Hirsch seems to have slept through Political Science 101 when he was in college. He maintains that the courts, not lawmakers should rewrite the state’s so-called “stand your ground” law.

That law, passed in 2005, was strengthened earlier this year. Pennsylvania has a similar law, known here as the “castle doctrine” which recognizes the right of an individual to protect him or herself when under threat. The Florida law is broader than the Pennsylvania statute and generally absolves a person under threat from being required to retreat before using force.

Florida’s “stand your ground” law is strongly supported by the National Rifle Association and, generally speaking, anybody who believes every individual has the right to self-preservation. In the wake of the highly publicized shooting of Travon Martin, Black Lives Matter and other Left-wing groups have agitated for repeal of the law.

The dispute landed in Judge Hirsch’s courtroom where he confused the roles of the legislative and judicial branches. He ruled the recent changes to the law unconstitutional by arguing the legislature overstepped its bounds by changing the law and asserting that power belongs to the courts. Judge Hirsch’s ruling drew an immediate rebuke from the Speaker of the Florida House, Richard Corcoran, who correctly pointed out that “It is the role of the legislature to write the laws.” The case will now be appealed to higher courts.

The situation in Florida is, unfortunately, not unique. Starting with the Supreme Court of the United States activist jurists can be found at all levels of the judiciary. The spotlight usually only falls on the nation’s highest court, where the seating of Justice Neal Gorsuch returned a strict constitutionalist to the seat held by the late Justice Antonin Scalia.

President Barack Obama, as was expected, added judicial activists to the high court. The death of Justice Scalia undid the court’s general 5-4 conservative balance, but in rulings released late last month Justice Gorsuch returned the court to a more constitutionally centered approach. With Justice Anthony Kennedy widely expected to retire soon, and possible additional vacancies anticipated due to the age of several other justices, the role of the courts is poised to become a hot button issue in the coming years.

The importance of the Judiciary is not lost on President Donald Trump who has depended on conservative organizations like the Heritage Foundation and the Federalist Society to help him vet potential nominees. And he will get the chance to reshape the federal judiciary. At present, 136 federal district judges and circuit court judicial positions are vacant. This is out of 890 total seats on the various federal judicial benches.

President Trump has this opportunity because the U.S. Senate, inept at passing actual legislation, effectively exercised its confirmation powers to prevent late term Obama nominees from being voted upon. That strategy resulted in giving the new president more initial vacancies to fill than any recent president except for Bill Clinton.

Meanwhile, here in Penn’s Woods, We the People, for the time being at least, have the power to elect judges. This year, in addition to seats on most county-level courts of common pleas, voters will elect a Justice of the Pennsylvania Supreme Court, four Superior Court and two Commonwealth Court judges. Seats on the three appellate courts will be filled by voters statewide in the November General Election.

While the resumes of candidates for these seats are undoubtedly not on the summer reading list of most Pennsylvanians, they are races which voters should pay close attention to as the leaves begin to turn in October. As witnessed by the actions of Florida Judge Hirsch, judges and justices have the power to undo �" or at least temporarily suspend �" laws duly passed by the state legislature and signed by the governor.

This is, of course, what our Founders intended. The courts are to be a fully functioning third branch of government, balancing out the actions of the other two. But like presidents, governors and legislators there are times where judges and justices overstep their constitutional bounds. We voters should pay as much attention to their actions as we do to those of the other two branches of government.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is [email protected].)

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