Sam, how can we stop judges from what they do so often—that is, legislating from the bench?
Senator Sam Brownback:
I think step one on this is appointing judges at the outset that want to be a judge and not a super-legislator. It’s key who you pick to go on the bench. And you need people that want to be so-called strict constructionists, that believe the Constitution is a document that is written, that’s on—the words on the four squares of the pages, and not something that they want to reinterpret, to rewrite the Constitution, and not people that want to be social agents for change in a society using the courts rather than the legislative process. That’s number one. Number two, and unfortunately we’ve had to go increasingly to this tactic, is I think we need to—in some pieces of legislation that are particularly susceptible to courts’ review, on major social issues—is just state in the legislation that this is not reviewable by federal courts. And that provision’s provided for in the Constitution. And then third, I think we really need to start talking about the issue a lot more of judicial restraint and what that means, as a way of talking to the judiciary about—it is not to be a general court that covers everything; it’s to be a limited court and it has a limited authority. And that judges need to be made increasingly aware of that.
Thank you so much, Senator Brownback.