Judge Pickering Wants Constitutional Amendment to Stop 'Politicized Judiciary'

Retired federal Judge Charles Pickering of Mississippi wants a constitutional amendment to combat judicial activism. It’s very simple, says Pickering, who calls it “The Constitutional Amendment to Promote and Protect the Amendment Process.”

It’s summed up this way:

The Constitution, and the amendments thereto duly adopted, in the future, may be changed, modified, altered, or added to only by amendment duly adopted as outlined in Article V of the Constitution.  In the future, neither the Supreme Court nor the inferior courts will change, modify, alter, or add to the Constitution, but will interpret the Constitution and Amendments thereto according to the common understanding of the relevant provision at the time it was adopted.  This amendment does not affect the weight to be given prior decisions under the doctrine of stare decisis.

Pickering was appointed by President George H.W. Bush in 1990 as U.S. district judge for the Southern District of Mississippi and was confirmed unanimously by the Senate. In May of 2001, President George W. Bush nominated him to the 5th Circuit Court of Appeals in New Orleans. Senate Democrats blocked Pickering’s confirmation for more than two-and-a-half years. Bush gave him a recess appointment in January 2004, but still awaiting Senate confirmation in late 2004, he opted to retire.

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Pickering’s new book, “Supreme Chaos: The Politics of Judicial Confirmation and the Culture War,” attempts to give a behind-the-scenes look at what Pickering calls “a politicized judiciary.”

Pickering spoke at the Family Research Council on Wednesday to an attentive and admiring audience. He focused on his “faith” chapter, saying, “Christians have the same rights as secularists,” and he wants the Christian community to “become more aware of this battle.” In his book he writes, “Is it permissible for Democratic presidential candidates John Kerry, Al Gore, and Bill Clinton to campaign in African-American churches, but not appropriate for conservative Christians to become involved in the political process? It is either wrong for both or right for both. One cannot argue that Christians involved in liberal politics may bring politics to church, but Christians involved in conservative politics may not. That is rank hypocrisy; it is a double standard.”

Pickering stressed that the judiciary should not be a political branch of government. What caused this? “The transfer of all the hot button social issues: Partial-birth abortion, abortion for teenagers without parental consent or even parental notification, same-sex ‘marriage,’ references to God in the Pledge of Allegiance, at public buildings, ceremonies and institutions, display of the Ten Commandments in public places, rewriting history to delete all references to a religious motivation in the settling and building of America, and hard-core and child pornography — are being settled in the courts of our land rather than in legislative bodies.” Pickering adds that “Our Founders never intended the judiciary to be political.”

“The Constitution will be changed over time. The only question is whether it be changed by the people through their elected representatives or by five judges.”

Below are some “talking points” about Pickering’s constitutional amendment to promote and protect the amendment process.

  1. The primary root cause for the battle over confirming federal judges is interpreting the Constitution as a changing, “living”, evolving document, transferring hot-button social issues from the political arena to the judicial arena, thus politicizing the judiciary.
  2. This method of interpretation violates the separation of powers doctrine and is bad policy.
  3. This method of interpretation has produced a “mystery Constitution”, because its meaning is unknown until it is revealed by a majority of the Supreme Court. 
  4. The politicalization of the judiciary is contrary to the intent of our founders and contrary to the wishes of the vast majority of American citizens who want judges to interpret the law and not make law.
  5. The judiciary is ill-equipped to make political decisions.
  6. Recent studies indicate that one out of two potential nominees to the federal judiciary decline nomination because of the bitterness of the confirmation process. 
  7. Reports indicate that the “brightest and best” of our law school graduates are directing their professional careers away from a judicial tract.  This should be of concern to all Americans. 
  8. Politicizing the judiciary and the resulting bitter fight over confirmation threatens the quality, independence, ability, integrity, and diversity of the judiciary.
  9. The confirmation fight has also undermined civility, comity, and collegiality in the Senate and makes it more difficult for the Senate to discharge its constitutional legislative responsibilities.
  10. Any problem that weakens two of the three co-equal branches of government cries out for a fair, practical, and reasonable solution.
  11. Our founders realized the Constitution would need to be changed over time, but intended that changes to the Constitution be made by the people and their elected representatives through the amendment process, not by judges adding to or changing the meaning of the Constitution. 
  12. The Constitution has not been amended by any amendment that was initiated since 1971. 
  13. Far left special interest groups found that under the concept of a changing, evolving, “living”, “mystery”, Constitution, it is easier to convince five members of the Supreme Court that the Constitution should be changed than to do it the old fashioned way, the amendment process, where the people and their elected representatives have a say.
  14. After 1971, liberals started arguing that the Constitution is too difficult, and too sacred, to amend. 
  15. They don’t think it’s too sacred for the Supreme Court to change.  The Constitution is not too sacred for the people to amend.
  16. Between 1798 and 1971, the Constitution was amended sixteen times, an average of one amendment every 10 to 11 years. 
  17. Between 1933 and 1971, the Constitution was amended 7 times, an average of one amendment every 5 to 6 years. 
  18. These amendments which abolished slavery, required states to give due process and equal protection, granted the right to vote to women, eliminated the poll tax, and extended the right to vote to eighteen year olds also involved hot-button issues. 
  19. The amendment process can work again if we try. 
  20. The “Gang of Fourteen” produced a temporary reprieve, but it did not solve the underlying problem.  A permanent solution is needed.
  21. The Constitution is going to be changed over time.  The only question is will it be changed by judges or by the people through their elected representatives.
  22. Opponents of the judges who were filibustered claimed they did not want activist judges.  They should support this amendment.
  23. Many judges view activism on the bench as acceptable because it is not explicitly prohibited by the Constitution.  If adopted, even the most activist judges will find it difficult to ignore this explicit prohibition.
  24. This amendment will neither reverse, nor lock in Rowe v. Wade or any other changes to the Constitution made by judicial decisions.  These decisions will be left subject to stare decisis.
  25. There will be public debate over the amendment.  Both sides will have an opportunity to present their views. This will be good for the process and the American people.
  26. It is better to attempt a positive, constructive solution to the confirmation battle and judicial activism than to simply do nothing, wring our hands, and decry judicial activism.