Open Letter Opposing the Confirmation Judicial Nominee Dale Drozd

The vote to confirm Dale Drozd to the U.S. District Court for the Eastern District of California will be taking place on Monday, Oct. 5, 2015 at 5 P.M. EDT. Rod and many other conservative leaders are on the record opposing this disastrous nomination.

Please contact your Senators and urge them to vote AGAINST confirming Dale Drozd.

Leaders Opposing The Confirmation of Judicial Nominee Dale Drozd

September 28, 2015

The Honorable [SENATOR]
United States Senate
Washington, DC 20510

Dear Senator [LAST NAME],

As Americans concerned with maintaining the rule of law and the integrity of the federal judiciary, we respectfully request that you oppose the confirmation of Dale Drozd to the United States District Court (E.D. Cal.).

It is appropriate under the Constitution for the burden to rest upon President Obama and Dale Drozd to prove to Senators that, if confirmed, Drozd would act only within the constitutionally proper role of a judge which is to decide cases according to the law and not to attempt to create law.  The President and Dale Drozd are not able to meet this burden.  In fact, Drozd’s record leads to the opposite conclusion: that he would misuse the judiciary by usurping legislative power from Congress.

In support of our request that you vote against Drozd, please consider the following:

1. Drozd Refused to Follow “the Plain Language” of the Law Protecting Religious Liberty and Was Reversed by the Ninth Circuit for Depriving Inmates of Christian Worship Services. In 2006, Drozd issued an order as Magistrate Judge depriving a prisoner of the right to attend Christian worship services. The Ninth Circuit reversed Drozd and said that his order did not follow the “plain language” of the law in the case.  According to the Ninth Circuit, if Drozd’s order were allowed to stand, his reasoning would permit the imposition of “outright bans on particular aspects of an inmate’s religious exercise, so long as, in the aggregate, those bans [did] not amount to a substantial burden.”¹  After reversal, Drozd did comply with the law in a subsequent prisoner religious freedom case.²  However, his subsequent compliance is of little comfort given the fact that his initial instinct was to refuse to follow the plain reading of the statute and, more importantly, of the Constitution.

2. Drozd was Mentored by One of the Most Infamous Activist Judges of the Last Generation Who Was Discredited for His Attempt to Remove “Under God” From the Pledge of Allegiance. Drozd spent the first two years of his legal career under the mentorship of Judge Lawrence K. Karlton, and maintained that mentor/mentee relationship until Judge Karlton’s death in July of 2015.³ Karlton’s record of activism has been documented by numerous scholars, including Ed Whelan who denounced Judge Karlton in his “This Day in Liberal Judicial Activism” column at National Review,⁴ and Phyllis Schlafly who cited Karlton as an example of a “liberal activist judge.”⁵  Perhaps Karlton’s most infamous ruling was his arrogant attempt to order the U.S. Congress to remove “under God” from the Pledge of Allegiance.⁶  Karlton’s activist ruling was too much for even the ultra-activist Ninth Circuit Court of Appeals, who reversed him.⁷

3. Drozd was Sure His Mentor was Pleased with the Supreme Court’s Unconstitutional Redefinition of Marriage in Obergefell. The Sacramento Bee reported in July of 2015: “Drozd recounted that 10 days ago he visited his mentor [Judge Karlton], who was at home with hospice care.  ‘We had a long talk about a lot of things,’ Drozd said with a bittersweet chuckle. ‘He asked me to bring him a copy of the Supreme Court’s decision on same-sex marriage. He wanted to read it. So I did. I’m sure he was pleased. That was Larry Karlton.’”[Denny Walsh, Retired federal Judge Lawrence Karton, a Sacramento institution, dies, The Sacramento Bee, July 12, 2015 (emphasis added), available at: http://www.sacbee.com/news/local/article27104569.html. (last visited September 2, 2015).]

4. Drozd Praised His Activist Mentor’s Judicial Philosophy of “Hand-Crafted Law.” Drozd wrote a feature story for the “Sacramento Lawyer” about his judicial mentor, Judge Karlton, wherein Drozd praised him for calling the federal courts “the last bastion of hand-crafted law,” and for being an “innovative leader.” Drozd claimed that the people of California “owe [Karlton] a tremendous debt of gratitude” for his “loyal service” and his “significant mark on the development of the law in a diverse range of cases: environmental litigation, prisoner civil rights, criminal law, campaign finance reform and general civil litigation.”⁸  Drozd’s assessment of Karlton’s judicial record is decidedly false.  If measured by the Constitution, Karlton’s service was not “loyal” at all, but quite the opposite. Karlton openly usurped legislative power, thereby violating the first principle in the entire Constitution that “[a]ll legislative Powers herein granted shall be vested in Congress [not in the Courts].”⁹

5. Drozd Promotes an Unconstitutional Philosophy of “Judicial Independence” Where the Judiciary Subjugates the Other Branches and is Unaccountable Even for the Most Egregious Usurpations of Power. In 2006, there was much discussion in Congress and among the American people regarding the problem of judges legislating from the bench. In response to these legitimate concerns, Drozd made at least seven speeches on the so-called topic of “judicial independence,” claiming, among other things, that judges should not be accountable for their decisions.¹⁰

6. Drozd Confirmed in Writing to the Senate Judiciary Committee Chairman, Charles Grassley, that Judges are Unaccountable for Activist Rulings. Chairman Grassley asked Drozd to explain his views on the topic of “judicial independence” and rather than backing away from his speeches, Drozd brazenly doubled down and claimed that judges should be able to issue even the most abusive orders “without any … concern of reprisal for judicial acts.”¹¹ Drozd’s statement is absolute and leaves no exception for even the most destructive attempts by judges to usurp legislative power.  By this measure, judges could literally re-write the constitution by judicial fiat and escape corrective remedy.  Drozd’s judicial philosophy is fatally flawed.

7. Drozd Confirmed in Writing to Senator David Vitter that Congress and the Senate Must Submit to Even The Most Tyrannical and Unconstitutional Court Opinions. Senator Vitter asked Drozd: “[A]re there cases where you believe a President, Congress, and/or other officeholders should have properly refused to acquiesce to a Court order?”¹²  Drozd’s answered in the negative.  Obvious examples of cases contemplated in Vitter’s question include: Dred Scott v. Sanford, (Court declared African slaves were property); Plessey v. Ferguson (Court prohibited “commingling of the two races” under the “separate but equal” doctrine); and Buck v. Bell (Court permitted the forced sterilization of the intellectually disabled declaring that “three generations of imbeciles are enough”).  In his response, Drozd claims that in every instance a President and Congress must submit to the Judiciary.  Amazingly, Drozd wrote in response to Senator Vitter:
   

   “I believe the rule of law is absolutely vital to our system of ordered liberty. Willful disobedience of a lawful court order is completely at odds with that belief.  Adherence to the rule of law is critical. Without it, our constitutional democracy – with its system of checks and balances among the three branches – would break down.¹³

Drozd’s philosophy is a perversion of the concept of “rule of law” because it gives superior legislative power to the courts, when in fact the courts have zero legislative power.  The Constitution begins with the command that “All legislative Powers herein granted shall be vested in Congress.”  The court has no legislative power and yet Drozd’s judicial philosophy would not only create legislative power for judges, but would give them supreme legislative power over the rightful legislative branch: Congress.  As such, Drozd is not only a judicial activist, but a judicial supremacist.

For the above reasons, we respectfully request that you vote against the confirmation of Dale Drozd.

Respectfully,

Penny Nance
CEO and President
Concerned Women for America*

Phyllis Schlafly
Founder
Eagle Forum*

Mathew D. Staver
Founder and Chairman
Liberty Counsel*

Ed Martin
President
Eagle Forum*

Sandy Rios
Director of Governmental Affairs
American Family Association*

Hon. Sharron Angle
President
National Federation of Republican Assemblies*

Judson Phillips
Founder
Tea Party Nation, TPN Networks*

Richard A. Viguerie
Chairman
Conservative HQ.com*

Troy Newman
President
Operation Rescue*

Linda Harvey
President
Mission America*

Rabbi Jonathan H. Hausman

Diane Gramley
President
American Family Association of Pennsylvania*

Rod D. Martin
Founder and CEO
The Martin Organization*

Janet Porter
President
Faith2Action*

Nicholas Stehle
Campaign for the American Future*

Hon. Jerry Melvin
President
Florida Republican Assembly*

Sherri R. Martin
The Martin Foundation*

Paul Caprio
Director
Family PAC Federal*

Pastor Paul Blair
Reclaiming America for Christ*

Steven W. Fitschen
President
The National Legal Foundation*

John J. Jakubczyk
Southwest Life and Law Center*

Dee Hodges
President
Maryland Taxpayers Association*

Eunie Smith
President
Eagle Forum of Alabama*

Joanna Filiatreua
Arkansas TEA Party, Inc.*

Melissa Ortiz
Founder and Principal
Able Americans*

Jim Backlin
Christian Coalition of America*

Seton Motley
President
Less Government*

Len Deo
Founder & President
NJ Family First*

Kristin Fecteau
Co-Founder
Campaign to Free America*

Phillip L. Jauregui
President
Judicial Action Group*

 

*All above organization and affiliations listed for identification purposes only; signers are acting in individual capacities only.