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Why Judicial Appointees Matter

By Mark Davis

One of the many great things about America is the power to resolve our problems every Election Day. But what can we do when the judiciary - the most powerful branch of government - corrupts itself with flights of megalomania that threaten our system of laws and maybe even our personal safety?

Evidence of this is now officially rampant from coast to coast. The U.S. Supreme Court and various state courts clearly believe they exist not just to interpret law but also to craft it in the mold of their own political and social whims.

This can have alarming consequences, as when the Florida Supreme Court sought to write new election laws from the bench in the 2000 presidential ballot controversy. The U.S. Supreme Court properly extinguished that bit of mischief, but now even our loftiest justices have lost their way when it comes to where their noses belong and where they do not.

In one of the most absurd and dangerous breaches in the history of separation of powers, five justices decided last week that Guantánamo Bay detainees, plucked from a battlefield in wartime, are just like U.S. citizens who break the law in their hometowns.

Their "logic," a term granting more dignity than they deserve, revolves around the rights of such detainees to challenge the validity of their detention.

It cannot be said more clearly: This right does not exist. Supreme Court justices may lament the thin prospect of some innocent souls peppered among the murderous terrorists who populate Guantánamo, but they may not weave from the cloth of fantasy some remedy that helps them sleep better at night.

They are duty bound to follow the Constitution, which certainly allows Congress to divine some alternative means for examining the grievances of objecting residents at the base, but in no way does it provide for a judicial power grab that not only destroys the lines between the branches of government but actually may cost American lives. Thanks to the misguided high court majority, terrorists may now lay their claims at the feet of a rabble of federal judges, whose inclinations and talents do not necessarily lean toward protecting the homeland.

That is the job of the U.S. forces running one of the most scrutinized, humane facilities ever operated for the purposes of holding combatants in wartime. They should answer to the laws made by Congress and the orders of the commander in chief, not lawyers in robes drunk on their own power.

The binge continued this week as the same court decided that it, not immigration officials guided by actual laws or directives, has the power to allow foreigners overstaying their visas to remain in the United States. In granting itself this phony power, more phony rights again are concocted, further blurring what should be clear lines of policymaking.

Continuing the penchant for state courts to invent rights when they wish, California Supreme Court justices paved the way for this week's wave of legally equalized gay marriages by claiming without basis that the "Parties A and B" denoted on the revamped official state marriage licenses have a right to the same status as the people who used to be called "bride" and "groom."

If the people of California wish this, they have the right to enact it through law. If they do not, they may constrain it. That's what the state and U.S. constitutions provide for.

But no word on any such document is safe when men and women in robes hunker down in search of pet societal wrongs to remedy.

Meanwhile, the only remedy we have for stopping this insanity is to elect people who will appoint judges and justices who can restrain themselves from this compulsion.

Mark Davis is a columnist for the Dallas Morning News. The Mark Davis Show is heard weekdays nationwide on the ABC Radio Network. His e-mail address is

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