May 25, 2005

Dear Senator Frist:

I write to you, Sir, not because you are unaware of how important the courts are to the future of our nation and to its citizens, but because perhaps you ought to be encouraged by a message from an everyday American. Though the letterhead above suggests that I represent an interest group, that is not so. I do happen to operate a website called CourtZero.org, but that doesn't mean that I represent an established or financed interest group. Rather, the fact that I started a website devoted to analyzing court opinions simply means that even busy people with day jobs have been concerned about the fact that our third branch of government is not only the most powerful branch, beholden to no one, but is also malfunctioning with serious consequences.

Some polls suggest that Americans are not very concerned about the judicial filibuster. I don't know if that is true. What I do know is that when my friends and neighbors take the time to learn about how powerful judges are, and to look at the quality of judges' reasoning, they tend to get upset about what is happening, and has been happening for a generation.

The reason that CourtZero.org exists is that my son, a Boy Scout, once asked me why the Boy Scouts in San Diego were no longer allowed to use their traditional campground. To make a long story short, I researched the recent history of what can only be called a concerted effort to use sympathetic judges to punish and harass the Boy Scouts and decided that I had an obligation to pay attention and to stand up for my son and his friends. My adolescent child has also asked me pointed questions about court decisions he hears about regarding same-sex marriage and partial-birth-abortion. Since his dad happens to be a lawyer, he expects me to be able to make sense of it all, but that is very difficult to do since we have entered an age in which the rule of law has come to mean the rule of the whims of men and women in black robes. I cared enough about answering those questions that I spent half a year writing and self-publishing a book on the subject and starting the website and its message board.

I mentioned that I'm an attorney. I'm also a West Point graduate and former Army officer. As such, it is increasingly obvious that those of us who have sworn to uphold and defend the Constitution are, in fact, adrift and no longer have a settled purpose, so long as we have pledged everything we are to what turns out to only be a "living, breathing Constitution", that stands for one thing today and another thing tomorrow. Attorneys and soldiers are not alone in this confusion.

I can tell you, as one lone individual who started a website without backing, money, or advertising, that the state of the Judicial Branch is, indeed, of interest to a large number of everyday folks, at least when they are exposed to information about court decisions. Without any resources, influence, or media reach, we have gained the signatures of 16,000 people on a petition to amend the federal law regarding attorneys' fees in Establishment Clause cases, for instance. That is not an easy issue to get people interested in without advertising, yet we have. Our message board reflects a broad cross-section of Americans who are, for lack of a better term, frightened by the power of activist judges.

All of that I say to simply encourage you in your resolve to allow the President's judicial nominees to get a fair vote. Quite frankly, the term "extremist" has been so misused with regard to nominees that even if this President got all of his nominees confirmed it would do little, in effect, to change the face of the out-of-control judiciary. Nonetheless, we must do what we can, and I applaud your resolve and want you to know that more people than you perhaps are aware of are relying upon your leadership.

Sincerely,

Craig A. McCarthy