High court's power grab may backfire

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.

However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."

Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."

In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."

That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."

Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.

Sharf running again in HD-6

Editor: Joshua Sharf, who blogs for us as well as on his own at View from a Height, and who has long helped me on radio, made it official last week: He will take another run next year at the east Denver seat in Colorado's House that eluded him last year when Democrat Lois Court prevailed after Sharf had bested Rima Barakat Sinclair in the GOP primary. Here's his email announcement from today: On Thursday, October 15, I announced my candidacy for State House District 6.

I'm running because I know that Colorado can do better than we have been, and that our district's representation in the State House of Representatives needs to be a part of that improvement.

House District 6 is a relatively prosperous district. But even past success isn't enough to guarantee the future. Coloradoans are worried about losing control over their futures, futures which they have worked hard to build. We can work to give them back that control.

Colorado has the resources – most importantly, our people – that can lead us back out. We need to unleash those resources to their full potential.

I hope you'll be able to join me as I walk the district, knock on doors, and discuss how to get the state moving in the right direction again. Please visit my website at sharfcolorado.com for more information.

The work ahead won't be easy, but together, we can succeed, both as a campaign and more importantly, as a state.

See you on the trail, JOSHUA SHARF

A warranty could help GOP win in '10

In his first year as president Bill Clinton, who had run as a centrist, was drawn into the new-left vortex of socialized healthcare, which led to a resounding defeat for Clinton and the Democrats in the 1994 mid-term elections. Current President Barack Obama too is attempting to reform healthcare and like Clinton has seen his popularity sink. Some political pundits are drawing comparisons between the two administrations and positing that democrats are setting themselves up for a bit of a spanking come 2010. It is, as Shirley Bassey sang, “all just a little bit of history repeating.” Or is it?

In 1994 the political right offered voters something more than simply criticism of the President. Republican members of the House of Representatives presented voters with the “Contract with America.” This document, signed by all but two Republican congressmen and all of the Republican congressional candidates, detailed the specific legislative action Republicans would take if the American people handed them the reigns of government. The contract was a “detailed agenda for national renewal, a written commitment with no fine print.”

At the time of this writing I am not aware of Republicans having any such detailed agenda nor, unfortunately, am I confident that there is one in the works. I have a recurring nightmare that we will all awake on January 1st with a President and Democrat congress weakened by continued economic malaise, a healthcare boondoggle and threats of huge energy taxes designed to save the planet only to be greeted with the Republican mantra of tax cuts – a tune that has become monotonous and rings rather hollow, due primarily to Republican complicity in building the ship that delivered us to these rocky economic shores.

And yet like 1994 over-reaching by the new left has provided Republicans with a huge political opportunity to perhaps retake the House of Representatives or at the very least deny Democrats their filibuster proof majority. But in order to convince voters that the right is prepared to drive domestic policy the GOP needs more than complaints and criticism; they must present a committed and detailed agenda.

Rather than call it a “Contract with America,” which seems a bit old hat, we can perhaps refer to this as a Political Warranty – a warranty that if the GOP is returned to power they will be bound to a short-list legislative agenda aimed at delivering true healthcare reform, true education reform and truly trying to realize a post racial America.

I am not talking about rhetoric or an articulation of principles. Alas, Republicans are all too adept at articulating principles; they have as of late been rather lackluster in conveying specific policy.

What is the specific legislative action the GOP is going to take to increase competition in health care? How willing is the GOP to buck the system and remove barriers to insurance purchases across state lines? To removing obstacles to new insurance companies entering the industry? How committed is the GOP to instituting real tort reform? True price and quality transparency? Are they willing to butt heads with the AMA and make it easier to build new medical schools in order to train more doctors?

Republicans talk about education reform, but what is the specific legislative action they promise to take in order to remove decisions about k-12 education out of the pockets of the bureaucrats and back into the hands of parents? How will they encourage innovation? How will they rebuild our vocational schools to meet the needs of the 21st century?

Finally, criticism of the President for not moving the nation beyond race means very little without a GOP re-commitment to being the post racial party. Republicans must warranty that they will be most committed to legislation that furthers the battle against discrimination of all kinds. Further the warranty must make it clear that the party will not tolerate bigotry of any sort within its ranks.

I will leave it to others more politically astute than I to fill in the blanks, but the questions must be answered. The GOP has a real opportunity to become the true party of reform, but history will not simply repeat itself without a little nudge.

Joseph C. Phillips is the author of “He Talk Like A White Boy” available wherever books are sold.

Recipe for Republican renewal

How could the GOP could become the Grand Old Party once again? Their chances in 2010 aren't very good right now, even if the Democrats go hog wild with more pork-barrel spending, and big-government programs. The past eight years of George W. Bush and his administration don't inspire a lot of confidence for most Americans in the Republican party. Now, it's still possible the party could regain relevance in the next few years. It's not an easy process, and will require attributes that a lot of politicians don't have – or if they do, they're in short supply. Such as common sense. Economic and financial literacy. Remembering and governing by the founding principles of the Republican party and the United States.

Vince Lombardi told his Green Bay Packer team back in the 1960s, “Gentlemen, this is a football.” It was his way of stressing the fundamentals to his players. That's exactly what Republicans must remember (and put into governance) if the party wants a chance in hell of staying relevant – or even in existence. It's the Constitutional, limited-goverment principles our country was founded on.

Simple things like cutting (or at least freezing) spending... balancing our budgets... and making sure new programs are necessary before approving them. And utilizing our military for national defense – not international offense into foreign lands, with no clear enemy, goals or exit strategy.

It's definitely not the “neo-conservative” bill of goods that was sold to the GOP and our country. And it's not blindly supporting a leader regardless of how they govern, because they have an “R” behind their name.

That's the reason Republicans lost en masse in 2006 and 2008. Average Americans looked at supporters of the party and the President as loyal Kool-Aid drinkers who acted like Seargeant Schultz from Hogan's Heroes (“I know no-thing... I see no-thing!”), and saw nothing wrong with anything President Bush did. It was “Hallelujah, Hail Bush, Pass the Ammunition.”

Republicans and some “conservatives” who looked at everything President Clinton did with a critical eye, turned a blind eye to the Bush Administration's policies that increased our country's debt, and decreased our liberties – all in the name of the “War on Terror.” Never mind that terror is a tactic, not an enemy – and makes about as much sense as a “War on Frontal Assaults.” The WOT rings hollow when our southern border with Mexico is an absolute sieve, and it's obvious the Administration was never serious about border security, or discouraging illegal immigration.

Americans saw borrowing and spending skyrocket to new all-time highs... and “staying the course” in two military conflicts, because we hadn't “finished the job” yet – whatever the hell it was. Even though back in 2003 the President declared, “Mission Accomplished.” Combine this with the biggest stock market crash since the Dirty 30's, and most folks on Election Day were ready for “change.” They didn't care about the details – as long as it wasn't the policies or party of George W. Bush.

Effective leadership today will require a lot of courage and candor from elected officials to citizens, bordering on brutal honesty. Especially when it comes to financial and economic matters, and how they affect policy decisions across the board.

The starting point for all decisions must be made with this premise: The United States of America is bankrupt, along with at least a dozen states. The state of California is Exhibit A. We can no longer afford to be the world's policeman, or show other countries the American way of life, whether they want it or not. The bailouts and stimulus programs (whether from Bush or Obama) are probably being funded by printed – and not borrowed – money, which is debasing the currency, and will cause high (if not hyper-) inflation in the next year or two.

We're the world's largest debtor nation, owing a good chunk of that debt to foreigners. The Fannie Mae and Freddie Mac bailouts last September were done to appease these foreign investors, who could have put in “sell” orders, and really wreaked havoc with our bond and real estate markets. The more important international battles in the short to medium-term will be financial and economic, and not military.

In the coming years, there will major paradigm shifts in the US. There will be a reduction – if not an elimination – of guaranteed pensions from corporations, state and federal governments. Fewer benefits, an increase in retirement age, and means testing will probably all be in place. Wall Street will no longer be a major financial center or sphere of influence, because of the arrogance, corruption and excessive greed of investment bankers – and that includes Hank Paulson.

For you “true believers” who think Paulson is a hero deserving Man of the Year honors, I'll sell you ocean-front property in Wyoming. Paulson made a ton of money shorting the mortgage-backed securities that he helped create – which means when the value of these “assets” went down (and he knew they would, because they were dogs from the get-go), he cleaned up. The $850 billion Banker Bailout Bill he railroaded through Congress was a scam as well. Banks have hoarded the money, and it hasn't gone to buy up troubled assets as Paulson said it would.

Wall Street and the stock market are a huge Ponzi scheme, and 401(k) plans will go down in history as one of the biggest scams ever foisted on American employees/investors. Warren Buffett says it best: “If you're at a poker table for awhile, and you don't see the sucker – you're it.”

Americans are starting to realize they've been played for suckers by Wall Street with the help of Democrats and Republicans, and they're none too happy about it. I've got a hunch that the Madoff scandal is only the tip of the proverbial iceberg, and we'll see more stories like this in the future.

Foreign leaders, central banks and investors are looking at our country and leaders like we've smoked large quantities of crack cocaine. They don't believe in or trust American leadership like they used to – and neither do a growing number of citizens.

I realize that some of you may disagree with what I'm saying, and think none of these events could ever happen in the US. Or you think that I'm not being a loyal Republican. Frankly, I don't care. I call it like I see it, and my predictions in the past have been pretty accurate. I knew that John McCain was a no-hoper back in July, and if you didn't figure it out by Labor Day, you were truly drinking the red-state Kool-Aid. Think about this: If the new-fangled, neo-conservative Republican way was so great, then what caused the electoral a**-kicking the last two elections?

The only way the GOP can regain prominence is to totally reject the foreign and domestic policies of George W. Bush, and get back governing by the limited-government, Constitutional principles that made this country great. And not just giving it lip service – but actually putting it into practice. Voters today are increasingly angry about what's going on; and their patience for nice platitudes, speeches, or general BS is quickly running out.

A lot of Obama supporters engaged in the cult of personality, but too many Republicans did as well. Either the party gets back to the fundamentals of our country's Founders, or it's doomed to irrelevance and a footnote in history.