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April 23, 2005

Activist Judges

I've been gone for awhile. Let's see if I can make up for it.
There is a pattern the Right has taken in their battles in this country -- to achieve their objectives, they label and demonize those they believe are in the way of achieving that objective. Perhaps the most pernicious form currently used is the attack on the so-called "activist judges". A complaint I hear, over and over again, from these folks is that the judges are going against "the will of the American people".
You know what? Expressing the will of the American people is not their job. That's why you supposedly have the elected officials. The judges rule on points of law. They are appointed rather than elected to, hopefully, keep them free of the political arena. This, evidentially, is not good enough for the Right Wing.
Let's take the example of Gay Rights and Gay Marriage -- hot enough social issues that the Bush Administration used them to fire up the electorate before the election (although it seems to have dropped off their radar a lot since). The argument (as I've heard it from the Right) is that the courts should NOT be taking up the issue, that it properly belongs in the Legislature (the State legislatures preferably), and the majority of the American people do not support it.
To me it's a question of fundamental human rights and that IS the proper province of the Courts. Gays are denied basic civil rights based not on criminal activity (unless you're defining homosexual activity in itself a criminal act; more on that in a moment) but upon who they are, who they choose to love or how they have sex. Sex between consenting adults is really the business of no one else except those adults. If you morally disapprove, don't engage in it. But your moral disapproval is insufficient grounds to deny someone their rights or criminalize that behavior. Sex between different races was once considered sinful, immoral, and criminal behavior. It was the courts that tossed that.
I know there are some African-Americans who do NOT want to hear their struggle for equal rights equated with those of Gays and Lesbians. I'm sorry but if you boil it down to its essentials, it is. Denying someone their basic civil and human rights for anything other than egregious criminal activity creates a second class citizenry and that is intolerable. It IS the place of the courts to address that when the laws made by the legislative branch circumvent or deny those rights.
The African American Civil Rights movement correctly went to the courts for a redress of their grievances because it was clear there was no POLITICAL will to act in the Legislatures anywhere. In the U.S. Senate the Southern states successfully filibustered any attempt at Civil Rights legislation. It was said that the American people were opposed to integration. Without "activist judges", the Civil Rights movement as we know it would not have begun. I have to wonder if that's part of the complaint of the NeoCons and the Right Wing.
The Terry Schiavo case recently has brought down even more calls from the Right upon the Judiciary. In this case, it's not that they were "judicially active" but that they weren't judicially active ENOUGH or in what the Right considered the "Right" way. In other words, none of the judges -- from local to the Supreme Court -- gave them the verdict they wanted even after their absurd legislative attempts to hijack the situation to appease the Christian Right Wing. When that failed, there were talks of impeaching judges, of cutting off their funding, of retribution, of judicial "arrogance" -- the latter is pretty amazing considering how arrogant some of the attackers are. Tom DeLay fumed about the judges moral and ethical shortcomings which would almost count as comedy, considering his own questionable ethics, if it were not so dangerous.
Is the judiciary perfect? Of course not. Are there cases of them overstepping their bounds? Of course. Is it a runaway judiciary? Get real. What the Right is trying to achieve is intimidation of the judiciary. What they want every judge to be thinking is that if they come down with a ruling against what the Right prefers, they can expect talks of impeachment, of harassment, of people out front with signs, of attacks. It's a bully's tactic. They aren't looking to be reasonable, they aren't looking defend basic freedoms, they're looking to get what they want. They want to win. They intend to re-make society in their image for at least the next twenty years or more.
We HAVE a reasonably fair and impartial judiciary. If we let the NeoCons and the Religious Right take it from us, then we deserve everything that's going to happen to us. We fight with our words -- in the newspapers, in letters to our representatives, on blogs like this. Tell them "Hands Off the Judiciary, Assholes". Tell them -- while we still have the freedom to speak.

Posted by John Ostrander at April 23, 2005 10:39 AM

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If our federal judges are making their decisions based on what the Constitution and the Bill of Rights says, and not on some radical re-interpretation of what they think it should say, I have no problem with them. We have a much greater problem with a Legislative Branch and Executive Branch that fails to limit themselves to the limits spelled out in the Constitution and the Bill of Rights.

The scary thing is that it doesn't seem to matter who is in charge; the Republicans and the Democrats seem to be equally willing to expand their powers beyond their original and justifiable scope. Am I being alarmist?

Posted by: Andrew W. Laubacher at April 24, 2005 04:07 PM

This -- as you describe the general sitation -- is a common problem on both sides of the US/Canada border, John. I wish I could say otherwise.

Posted by: Dwight Williams at April 29, 2005 05:42 AM

A couple of observations: Part of the Right's problem with activist courts dates back to the Civil Rights movement. The people of several states wrote laws that established where Americans of European and African descent belonged, and they really weren't happy when the courts said those laws were unconstitutional.

That said, it's my understanding that at least Texas still has sodomy laws on its books, which is why you can't have, for instance, gay cops (because you can't hire criminals to be cops). If Texas does, then other states must as well.

Yeah, it's a loony country. But right now the Right is using the same weapons that liberals first used back in the 1950s and 1960s. That's the problem with weapons... once you use your super-weapon, the other side makes one, too.

Mike Flynn

Posted by: Mike Flynn at October 26, 2005 04:47 PM