Oligarchy: Government by the

few. This was what George Washington warned of in his farewell address

of 1796: "... The spirit of encroachment tends to consolidate the

powers of all the departments in one, and thus to create whatever the

form of government, a real despotism."

After rejecting rule by a king,

the founders of our country wanted to prohibit power in the hands of a

few. The solution of the Founding Fathers was a compromise between law

and liberty, the U.S. Constitution, where each branch knows its place.

How then do we neutralize recent

"judicial activism," or when judges try to "make law"?

Some call it "judicial tyranny." Judge Robert Bork concluded,

"Judicial activism elevates the objectives of a dominant minority

above the democratic process."

Need an example? The Washington

state legislature struggled with the proposal that assisted suicide be

made legal. Not sure about this so-called "right-to-die," the

legislature ordered a referendum. Washington state voters went to the

polls and rejected the idea.

Not satisfied, private interest

groups convinced the U.S. Ninth Circuit Court of Appeals to "find"

a Constitutionally guaranteed "right to die" and to disregard

the state legislature and a popular vote. Thus, as U.S. Supreme Court

Justice Antonin Scalia warns, "By trying to make the constitution

do everything that needs doing from age to age, we shall have caused it

to do nothing at all."

For 200 years, the U.S. Constitution

did not inspire one federal court to believe that prayer in schools was

an "establishment" of religion. However, in 1962 the U.S. Supreme

Court in a split decision said that school students should not pray but

that the Supreme Court itself could still open its daily sessions with

a prayer (which they still do).

What a contradiction: "Do

as we say and not as we do." Humpty Dumpty said, "When I use

a word, it means what I choose it to mean, neither more nor less."

In similar fashion former U.S. Supreme Court Chief Justice Charles Evans

Hughes told us, "The constitution is what the judges say it is."

The ultimate result -

you guessed it - the public loses confidence in the legal system.

Judges who won't stick

to simply enforcing and interpreting the law want to create law and thus

become judges behaving badly. This means not only creating new rights

but also eliminating old rights.

Judicial activists have tried

to rewrite the Second Amendment which guaranteed the "right of the

people to keep and bear arms." The "Living Constitution"

elite say that what this really means is that the right to bear arms belongs

only to the state of Georgia's National Guard unit and not to "We

the People" in our own homes.

Our Founding Fathers addressed

the issue. James Madison at 5-feet-4-inches and 100 pounds was the smallest

president, but he became a giant of a man as the "father of the Constitution."

He said, "Judges should not do the will of men but should judge men

at law."

His Federalist Papers partner

Alexander Hamilton added, "To avoid an arbitrary discretion in the

courts, it is indispensable that they should be bound down by strict rules

and precedents, which serve to define and point out their duty in every

particular case." Follow the law; nothing more and nothing less.

For those of us who are privileged

to serve as judges in Georgia, we are reminded under Canon 7 of the Code

of Judicial Conduct that we are "encouraged to emphasize in any public

statement [our] duty to uphold the law regardless of [our] personal views."

The Founding Fathers could not have been more clear in their job description

for judges: Follow the law and leave politics at the courthouse door.

The responsible judge is predictable,

uniform and disregards personal politics. Thus, the good judge is like

an umpire, calling balls and strikes and the plays at the plate but does

not become a part "of the game."

The judge in the O.J. Simpson

murder trial (Lance Ito) created a media circus. By contrast, the judge

in the murder trial of NFL linebacker Ray Lewis was unknown because she

(Alice Bonner) did her job competently and stayed in the background.

Judicial activism is letting

judges "trump" our democratic institutions. It happens not only

in the arena of federal constitutional law but also at the local level

and with international law, where we are not only surrendering to judges

but to judges from other countries!

Judge Bork observes that the

key challenge for all free nations "is how to tame and limit the

antidemocratic aggressions of their judiciaries and of the international

tribunals and forums we are so blithely and thoughtlessly creating."

Incredibly, there are some Americans who prefer the United Nations over

the United States.

So why is this so important

at the local level ? The need for responsible judges is crystal clear.

First, when we think of life-time appointees unchecked by popular elections,

we might be tempted to think only of federal judges. However, Georgia

law has an obscure form of tenure for judges.

Known as senior status, a judge

who has served 10 years can serve as a senior superior court judge and

never face another election.

Consider the dispute between

the Fayette County Board of Commissioners and the sheriff regarding the

county's creation of a separate law enforcement agency. All of our

local judges excused (or "recused") themselves from the case.

Instead, the dispute will be decided by a senior judge from another county

who will never face another election.

Judges at the local level can

lessen the public confidence in our court system. For example, consider

child molestation cases. The legislature passed a law that sexual predators

be on a registry (or "list"). That way we are able to call the

sheriff or go on the Internet to see if the guy wanting to work in our

child's youth group is a convicted child molester.

Here's how these cases

work. Cases are investigated in detail by one law enforcement agency and

a family services agency, followed by review by a judge before arrest,

indictment by a grand jury and arraignment before trial.

After all of these constitutional

procedures a sexual predator charged with a high-level felony might elect

to admit guilt and avoid trial. But if the predator is permitted to plead

guilty and "plea bargain" to a misdemeanor and avoid jail or

(more importantly) registration as a sex offender, the public is justified

in being concerned.

Zoning and land use regulation

are another good example. Consider the average zoning dispute. The rights

of citizens and neighbors are balanced against individual property owners'

constitutionally guaranteed right to enjoy (and profit from) the use of

private property.

The law in Georgia says that

when a local government makes a zoning decision, we assume that they were

right. The Georgia judge has only one option: To say "yes" or

to say "no" and thus to uphold or reject the decision primarily

based on the U.S. and Georgia constitutions.

When the judge disregards the

local government and orders a particular zoning, he not only exceeds his

powers and thwarts local control but jeopardizes public trust in the courts.

Madison's words should

echo in the night: "Were the power of judging joined with the legislature,

the life and liberty of the subject would be exposed to arbitrary control,

for the judge would then also be the legislator."

How do we solve the problem

of judicial activism? U.S. Rep. Tom Delay (R-Texas) has suggested wider

use of judicial impeachment. Maybe the simplest solution is to focus on

who we choose as judges in the first place.

[John Mrosek is an attorney

in Fayetteville, judge for the city of Luthersville and a candidate for

Fayette superior court judge. He may be reached at www.mrosekforjudge.com.]