Judging judges is no easy task. But some lawmakers sense judicial objectivity is dying, strangled by lawyers and justices with politicized agendas. They fear legislation flowing from courtrooms - as much as from capitols - without the safety net of voting-citizen input and open accountability.
Utah's own Sen. Orrin Hatch, chairman of the Senate Judiciary Committee, certainly is sounding that alarm. And his is no lone voice in the wilderness.Hatch recently voiced loud concern about federal judges in particular, noting that too many of them "have proven to be activists." He defines a judicial activist as one who exceeds the limits of his or her authority by making law instead of interpreting and applying it.
He noted that too many "read their own preferences and political agendas into the Constitution" and overturn legitimate legislation passed by elected representatives.
The supposed strength of the nation's judiciary is grounded in the notion it is non-partisan and independent of political influence. Anyone buying that is oblivious to reality. Partisan posturing to support and oppose appointments takes place at all judiciary levels. There is little that is objective about the mostly subjective process.
Court decisions are often just as subjective as those appointments.
Think about it: The nine consummate legal minds in the nation are perched upon the Supreme Court bench; they all listen to identical testimony, weigh the same evidence and ponder precedent from previous cases.
Then they vote 5-4.
There is little that is scientific - or even objective - about that. Each justice views the case through his or her perceptual filters and biases and political mind-set.
The same type of arbitrary decisions are rendered by lone judges presiding in courtrooms throughout the federal and state systems. One trial judge's conviction of guilt is another appellate judge's acquittal.
That's not to say that anarchy is the preferred alternative. Most judges - entrusted with enormous power and tremendous responsibility - are responsible enough to respect their positions and base their rulings on sound legal interpretation. But the few who don't have a profound, lasting and sometimes high-profile impact.
Consider two recent California cases, where the electorate approved term limits in 1990 and recently voted to overturn affirmative action. Federal judges promptly overturned both initiatives as being unconstitutional.
While the concept of checks and balances must always be honored, the fear is that the judiciary is becoming too weighty in prescribing and not merely interpreting constitutional and statutory law.
California Attorney General Dan Lungren noted that the "clear will of California voters" had been overturned. He expressed the growing feeling that the decisions fuel the "frustration citizens harbor toward a judiciary that all too often extinguishes their mandates."
In Colorado and Hawaii, citizen initiatives against according domestic partnership rights for same-sex couples passed overwhelmingly. Again, in both instances federal judges promptly overturned the will of the people.
Anyone looking for evidence to support charges of excessive politicization of the legal system need look no further than the activist American Bar Association.
It is inherently contradictory for the ABA to take pro or con positions on legal and/or moral issues upon which its members are expected to rule with fairness. That would be the ultimate example of conflict of interest.
Yet the ABA has taken stands on abortion, religious liberty, the death penalty, flag desecration, affirmative action, various legal reforms and many other controversial issues.
Hatch aptly pointed out that the ABA was largely neutral on such issues, functioning as a trade association, until the 1980s when it took on its current lobbying role.
"The ABA has become a political-interest group," said the senator. "It aggressively lobbies. Its agenda today has 750 policy positions, and it has 10 full-time lobbyists."
The fact that the judiciary's umbrella professional organization has 750 policy positions is a troubling and convincing self-indictment that its balance has tipped too far toward legislating the law.
That skew is dangerous democratically. Our adversarial system of justice assumes that arguments and evidence for and against will be carefully and thoroughly presented, sifted, digested and weighted - leading to truth. But when too much personal interpretation enters into that process, what is truth? Or, more accurately, where is truth?
That is a question being asked by more and more citizens as a politicized judiciary trots down public policy paths of its own creation - undermining its credibility in the process.