March 1, 1978

Impeach Judge Battisti?

There has been much concern in recent years over the tendency of the courts to make law rather than interpret it.

It is a worry well founded inasmuch as the traditional checks and balances of republican, representative government is in danger of breaking down.

No where do we see a better example of this than in Cleveland where Federal Judge Frank J.  Battisti has intruded into a legislative matter with dire consequences to the local school system.

Many federal judges throughout the country have misconstrued the 14th Amendment to the U.S. Constitution to justify an active role in changing society.  Their motives are the highest order; but as my granny used to say, "The road to Hell is paved with good intentions."

Battisti was in the forefront of action jurisprudence when he ordered massive bussing and a wholesale upheaval of neighborhood schools in the name of desegregation.

No matter that the man who invented school bussing to achieve "racial equality" - Sociologist James Coleman - has since recanted and said it was all a mistake.  The wrong medicine is better than no medicine in the view of social activists who have not yet correctly diagnosed the malady.

No matter that the cost of massive school bussing adds a couple of million dollars of deficit to a school system near bankruptcy.

A balanced budget for government and school boards in Ohio is required by law - a wise provision that should be law for the federal government as well.  This law was adopted by the Ohio Assembly years ago, and has so far prevented the disasters that face Detroit and New York City.

Thus, when the Cleveland school board ran short of money last fall - with the notes due on money borrowed a year earlier to get the schools through a similar crisis - administrators attempted to shorten the school year and postpone school bussing.

Judge Battisti would have neither.  He ordered the schools to remain open in direct defiance to state law, and to proceed with expensive school bussing in defiance of creditors.  The banks that loaned the emergency funds were told to wait, and their reaction was a vow that they would not advance any further "free" loans.

The legislature that adopted the balanced-budget system were told to ignore the law and bail out the Cleveland School system with tax money from another branch of government.  The legislature's reaction was one of meek surrender.

Which brings us to the heart of the matter.

The judiciary has over-reached its authority in recent years because of the inability of the legislative branch to solve tough problems to universal satisfaction.

As the judiciary moved to redress social ills, the special interests most involved in radical change have turned to the courts as the only source of action.

In short, the authority and prestige of the legislative branches of government - state and federal - has broken down.  It almost seems as if Assemblymen and Congressmen are relieved that the judiciary has taken the worrisome task of making unpopular law off their backs.

There are, of course, a few legislators trying to preserve the traditional separation of powers set forth in the Constitution.

One of these is Congressman John Ashbrook of Ohio who is not afraid of anybody or anything.  He has made a career of telling the populace the emperor is naked.

In high dudgeon over Judge Battisti's assault on legislative prerogatives, Congressman Ashbrook has filed an impeachment against the jurist with the House of Representatives.

This is no idle gesture.  Over the years nine federal judges have been impeached.  Of these, four were convicted, four acquitted, and one allowed to resign to escape trial.

Congressman Gerald Ford proposed impeachment in 1970 of Supreme Court Justice Douglas on the basis the judge exceeded the constitutional bounds of the powers of the office in derogation of the powers of another branch of government.

Congressman Ashbrook likewise contends Judge Battisti's order to the Cleveland School Board to ignore state law was usurpation of power.

Judge Battisti seems genuinely surprised that his well-meaning attempts to straighten out society should cause so much fuss.  And therein lies the problem.

Many courts do not perceive the practical difficulties of spending money we don't have for solutions that don't work.

The writers of the Constitution wisely put politics exclusively into the hands of the legislature and administration, reserving to the court the role of guardian and interpreter of laws shaped by the citizenry through their elected representatives.

As the courts move deeper into the political arena, a way must be found to make them responsive to the wishes of the electorate.

The Missouri Plan of subjecting judges with life-time appointments to a periodic "vote of confidence" is looking better all the time.

Author: Lindsey Williams