"Stenberg Loves Judicial Activism" Redux

A few days ago, I received a comment from George Lauby - one of the central figures in Nebrakans for Local Schools, the organization fighting the state to keep Nebraska's Class I, elementary-only school districts alive.

In response to an earlier NNN post about the judicial activism on which this group and its would-be champion, Don Stenberg, are relying - hoping a judge will disregard the letter of the law to protect the supposed interests of voters - Mr. Lauby wrote:

We think it is the Legislature that has exercised undue activism. The law in question - LB 126 - eliminates 205 school boards without a vote of any of those boards.

In regard to the suspension of LB 126, if the law was simpler – such as setting a speed limit or removing seat belt requirements – it could be completely repealed after a referendum vote.

However, LB 126 is an unprecedented restructuring of Nebraska’s K-12 educational system. It eliminates both Class I and Class VI districts and divides taxable property, assets and liabilities among the remaining school districts. LB 126 affects virtually all of Nebraska’s approximately 450 school districts, again, without a vote by any of those districts.

If it is implemented and then repealed at the ballot box, it at best would create tremendous legal complications. Not only that, the number of signatures required for a valid referendum and petition drive have increased dramatically in recent years, under a still controversial decision. That requirement is part of the injunction request filed in the courts by the Class I school supporters.

In Legislatively eliminating school boards, Nebraska is facing a truly historic and unprecedented situation. And, be that as it may, so far the court's injunction against implementing LB 126 has cited the firm constitutionally guaranteed right of the people to a valid referendum vote, and the precedence that takes in our state's constitution. The decision is well-grounded in law. The courts serve as a check on Legislative activism.

-- George Lauby, Nebraskans for Local Schools

I thank Lauby for his thoughful response. It speaks well of Nebraskans for Local Schools that its leadership should be so willing to engage in this important conversation in multiple forums and venues. Still, I can't help but be perplexed by this idea put forward of "Legislative activism."

Making law is not only the responsibility of the legislature, it is its main purpose for being. Everyone will not always like the laws passed or their outcome, but the suggestion that state senators have over-stepped their bounds by representing the interests of voters and creating corresponding legislation is quite ludicrous.

A democratically elected legislature can pass bad laws, it can pass unconstitutional laws, but any attempt to translate the already specious reasoning behind rhetorical assaults on judicial activism to this particular branch of government is an exercise in absurdity. They're just doing their job.

But, I don't mean to insult Lauby or his cause. The target of my scorn is Don Stenberg for so blatantly employing cheap, Rush Limbaugh-tested soundbytes against judicial activism in his campaign for U.S. Senate while hypocritically demanding just such action in his piggy-backing of local causes to further his political ambitions.

And look, Stenberg's not stopping with the Class I schools controversy in his attempt to keep a high-profile. Unable to compete with the fortunes and fundraising of the other Republican candidates (not just Pete Ricketts but even David Kramer), Stenberg is attaching himself to any cause he can.

The Lincoln Journal-Star reports:

The Nebraska Supreme Court should not even consider setting aside the state’s term limit constitutional amendment, according to a document filed by the Don’t Touch Term Limits group.

“The people of Nebraska have spoken on this issue, not once, not twice, but three times,” said former Attorney General Don Stenberg, pointing out Nebraskans approved term limits in three different elections. Courts overturned two of those decisions.

“The people of Nebraska want to be governed by citizen legislators. They have written that principle into their state constitution. The people’s decisions should be respected by their public servants, but it isn’t,” said Stenberg, who is representing the pro-term limits group.

But State Sen. Dennis Byars of Beatrice, one of the senators fighting the impending limits, said Stenberg hasn’t respected the people’s decisions because he keeps running for office after having been defeated.

Stenberg is involved in his third U.S. Senate race as a candidate in the Republican primary.

Stenberg's attempt to campaign in the courtroom is rather unsettling, but one can't really blame him when his campaign has otherwise been such a non-starter. It's sad, however, to see issues that some people are very passionate about being so abused.

On this particular issue of term limits, I have to give Sen. Byars a hand for poking fun at Stenberg and pointing out his again relying on rhetoric without any concern for the personal hypocrisy it betrays.

It's the will of the people, Don - take a hint, give it up, and go home.