Judge Frank Johnson

In light of the resignation of a judicial hugging giant on Friday, it's time for everyone's favourite Constitutional Calendar by Judge Milt Hirsch. You know it. You love it. You cannot live without it.  If we start a campaign maybe we can get the good Judge to start an Instagram Account "Constitutional Calendar By Milt" It would go viral with our help. 

And this one is about a true Judicial giant, a man who was directly responsible, at great personal risk to his life, with making rulings enforcing the civil rights acts of 1964 and voting rights act of 1965 when he was a district court judge in Alabama. As the picture shows, he was on the cover of Time in 1967 because of his courageous rulings. For you new judges Time was a weekly magazine that covered national and international issues. 

A magazine was....oh never mind. 

Judge Johnson was a man who swam against the tide of public opinion because he knew right from wrong. A man who was not beholden to anyone. He didn't just call balls and strikes. He was a man who saw wrong and did right. Our judges today, who are afraid of their shadow and the SAO, of whom we bet 99.9% would not be able to identify if Frank Johnson was a district and circuit court judge, or a place kicker for the Dolphins in the mid 1980s, would do well to read up about Judge Frank Johnson. 

On May 16, 1979, Judge Frank M. Johnson Jr. appeared before the Senate Judiciary Committee.  Johnson, a district judge in Alabama, was already a legendary figure for his role in desegregating the schools of his state.  His appearance before the Senate was in connection with his nomination to what was then the Fifth Circuit.

Unexpectedly, Johnson was presented with a “minority questionnaire” prepared by Strom Thurmond and other Republican members of the Committee.  The questionnaire’s second question was, “The Federal Judiciary has become the target of both popular and academic criticism that alleges that it has usurped many of the prerogatives of the legislative branch of the federal and state governments by engaging in their [sic; its] own law-making. ...  Please discuss whether or not you agree with these criticisms.  What are your own personal views on ‘judicial activism,’ the phrase often used to describe these judicial tendencies[?]”

Johnson responded:

The charge that federal judges have engaged in “law-making” is as old as the Constitution itself. ... In a democracy, the power of the courts to decide constitutional cases is not, and should not be, absolute.  The doctrine of separation of powers and the doctrine of “Our Federalism” properly circumscribe the role of the federal courts.  But these doctrines serve only to limit, not to bar, the exercise of judicial power.  Neither doctrine reserves to Congress or the states the right to violate the Constitution.  The balance between “law-making” and “law-interpreting” is a fragile one.  While a failure to defer to the decisions of coordinate branches of government is judicial intrusion and therefore improper, a blind deference to legislative and executive action is judicial abdication and is equally mistaken. The rights guaranteed by the Constitution are to be made effective in the present. 

 

The Constitutional Calendar (c) 2023 Judge Milt Hirsch, all rights reserved. Reprinted with semi-permission of the author. 

GILIUM CASE UPDATE: 

The government folded their tent and ran away. With the jury 10-2 for acquittal on the remaining  counts of fraud and money laundering, and with the not guilty on the false statement count, the government announced today that they will NOT re-try Gilium. In legal terms, they got their freaking ass kicked and said enough. 

Well done David and Margo and Katie Miller and Todd Yoder. 

Well done indeed.