The Threat Of Liberal Judicial Activism Reaches New Heights

[Geee]

American Thinker:

In making the case for judicial review, Chief Justice John Marshall pointed out that judges take a sworn oath to uphold the laws of the United States. Until last month, it would have been unnecessary to stress that he was obviously referring to actual laws, not the unfulfilled fantasies of a lone member of Congress. Nevertheless, on July 7, in a case largely ignored by the media, dissenting Justices Breyer, Ginsburg, Sotomayor and Kagan carried judicial activism to new heights by advocating a stay of execution on the basis of an imaginary law. They thereby revealed themselves to be so desperate to save barbaric murderers that they unashamedly and brazenly sought to apply un-enacted legislation introduced on June 14 by one senator, Patrick Leahy, with not a single cosponsor and by no representative at all. They had to know that this was not going to pass, because it had never been seriously considered in over seven years -- even when those least unlikely to vote for it controlled both houses of Congress and the presidency.

On May 20, 1994, Humberto Leal Garcia raped and murdered 16-year-old Adria Sauceda, whose skull he crushed and whom he left with a long stick protruding from her insides. Although he had lived in the United States since before he was two years old, Leal sought to avoid execution by taking advantage of the fact that he was a Mexican national who, he contended, should have been informed of a treaty right to Mexican consular assistance. No claim was made that he had in any way been prejudiced by lack of such assistance or that he was anything but clearly guilty as charged. (Indeed, he confessed when he was finally executed.)

A mere three years earlier, the Supreme Court had rejected an identical claim. Jose Ernesto Medellín, a Mexican national who had been in this country since preschool (4), had bragged about brutally robbing, raping, and murdering two girls, 14 and 16. The Court cited congressional refusal to pass a law required to enforce a consular consultation right. As stated by the Leal dissenters, the Court had "held that, because Congress had not embodied our international legal obligations in a statute, the Court lacked the power to enforce those obligations as a matter of domestic law." But they went on to assert that Leal's applications "do not suffer from this... legal defect" thanks to Leahy's bill.

It is noteworthy how easily the Leal dissenters slithered from lack of a statute to pending legislation, inviting the gullible to believe that the latter is a substitute for a duly enacted law. Their claim that it had a good chance of passing was obviously disingenuous, refuted by the lack of even one cosponsor and the failure to pass it since the need for it first became apparent seven years earlier.

The real aim of this artful exercise is transparent. Justices opposed to capital punishment (which has overwhelming public support) seek to sabotage it at every chance. Opponents routinely resort to absolutely anything to delay executions. There is no argument or ruse too preposterous (47) for them to try.