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What a joke

National | "Court Jester" awards provide comic relief after a year of staid judicial activism

Issue: "The death of discipline?," June 26, 1999

in Washington - A funny thing happened in Washington last week. No, really, it was funny. In a town that usually takes itself drop-dead seriously, the Family Research Council's third annual Court Jester Awards provided a few hours of comic relief. Several hundred conservatives packed the ballroom of the National Press Club to laugh at the most ridiculous judicial decisions handed down this year. It could have been a somber event. The Court Jesters, after all, are awarded "to activist judges who violate the public trust by handing down decisions that advance their own political agendas rather than follow constitutional principles." But FRC proposed laughter as the most appropriate response. Some of the decisions were so bad as to be almost beyond belief. But as presenter Hadley Arkes, an Amherst College professor, said (quoting comedian Chico Marx), "Who are you going to believe-me or your own eyes?" So-believe it or not-here are some of the winners of this year's Court Jester Awards:

  • The Overruled Award for a judge who finds citizens incompetent to manage their local affairs and chooses to manage them herself. The award went to Supreme Court Justice Sandra Day O'Connor whose decision in Davis vs. Monroe County Board of Education vastly expanded Title IX to include alleged sexual harassment among schoolchildren. Justice O'Connor decided that Title IX, which Congress passed to prohibit sexual discrimination in hiring and admissions by public schools, could also be used to micromanage the schoolhouse playground. Mrs. O'Connor apparently believed that local school boards were incapable of making children behave without help from the courts. Thanks to her decision, students who feel they are being sexually harassed by their fellow students can sue the school for failing to stop the harassment. Look out, Georgie Porgie.
  • The Invisible Ink Award for a judge who sees invisible words in the Constitution, but can't see the words that are actually there. Judge Jacques Wiener of the 5th Circuit Court of Appeals won this for his tortured reasoning in the Doe vs. Beaumont Independent School District decision. The school district invited local clergy members to visit the schools once or twice a year to discuss topics such as violence, peer pressure, and drugs. They were instructed not to wear religious garb, lead students in prayer, or reveal their religious affiliation. No way, said Judge Wiener. He found that the Beaumont program endorsed religion and coerced children to participate, since they might be "traumatized" if they opted out of the voluntary sessions. Judge Wiener apparently believed that the Constitution bars religious leaders from participating in any school program-even if the program is nonreligious in nature.
  • A special Impeachment Jester was awarded to Democratic senators such as Daniel Patrick Moynihan (D-N.Y.) and Robert Byrd (D-W.Va.) who publicly announced that the president was guilty of committing high crimes and misdemeanors, yet voted not to remove him from office as demanded by the Constitution. But one Court Jester category was no laughing matter.
  • The See No Evil Award went to the judge who turns a blind eye to crime. Judge Lawrence H. Bernstein of the New York Supreme Court of Bronx County won this award for letting a wealthy pedophile off with a slap on the wrist. Sidney Kewitt, a 69-year-old film industry executive, pleaded guilty to 12 counts of sodomizing an 11-year-old girl. He reportedly paid the girl's aunt, who cared for her on weekends, $50 to $100 for each visit. Rather than apologizing, Mr. Kewitt told the judge he thought it was better for the girl to learn about sex from him than "on the street." He also claimed that his age and heart condition made it impossible for him to have normal relations with his wife. "Had Viagra been around before these events unfolded, they would never have happened," he told the judge. Though Mr. Kewitt was charged with statutory rape, sodomy, and sexual abuse in the second degree, and solicitation of a prostitute-for which he should have served at least seven years in jail-Judge Bernstein accepted a plea bargain and sentenced him to just one year. He served eight months of that sentence and is already free-presumably enjoying once again the yacht and the red sports car in which he sodomized the young girl.

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