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April 7, 2005
By Auntie Pinko

Dear Auntie Pinko,

I live in a Republican community in a very Republican state, and for the last twenty years or more it seems as though the judges being appointed to our courts are getting more and more conservative.

Family court judges who send abused kids back to their abusers "because these problems should always be addressed within the context of an intact family, if possible," judges who deny girls terrified of abusive parents waivers on getting parental consent for an abortion, judges who ignore shoddy quality evidence when presented by the police, but hold the defense to the most rigid standards, judges who routinely uphold employers in spite of a clear pattern of discrimination - it's almost as though these judges are trying to re-write the law!

Does this make them "activist" judges? And, if so, would it be "understandable" if I undertook some kind of violence against them?

What can we do about the problems of an increasingly non-responsive and out-of-control judiciary that refuses to uphold civil rights laws, hate crimes statutes, and even the Constitutional rights to privacy and free speech? Should all judges be elected for short terms so that they are always accountable to the people? Why did those dumb Founding Fathers make the judiciary so independent?

Fort Wayne, IN

Dear Andy,

I suspect you already know the answer to that last question: the independence of the judiciary acts as a check to protect the rights of minorities from the tyranny of the majority. By freeing judges from the threat of retribution at the ballot box, we ensure that they can rule based on their understanding of the law, rather than on their need to please the voters.

Of course this doesn't guarantee good decisions (the Plessy vs. Ferguson case comes to mind) but it does provide some insurance, and eventually a Plessy is balanced by a Brown vs Topeka Board of Education decision. I hope we all know what happens when partisan passion becomes the sole driving force behind public policy: flawed public policy.

The really interesting clue about the need to continue an independent judiciary can be gathered from the fact that the complaints about it can be found with equal passion on both sides of the aisle. Liberals decry "conservative" judges and worry about the attempt of Mr. Bush's Administration to pack the bench with conservative ideologues. Conservatives decry "activist" liberal judges, and want to turn the judicial selection process into something that can be more easily manipulated based on ideological popularity.

Presidents of all ideological viewpoints have been guilty of attempting to pack courts with judges they believe would support their particular ideological agenda. Sometimes it works, sometimes it doesn't. Sometimes the judge deemed so "ideologically correct" at the time of her or his appointment diverges considerably from an ideological line in actual practice.

The safest criteria for selecting judges would seem to be their knowledge of the law in the areas they might be expected to judge in (Constitutional law for the Supreme Court, Appellate law for Appellate courts, tort, criminal, or family law for various local benches, etc. That knowledge can be assessed by examining the arguments and amicus briefs they have submitted as attorneys, and the arguments and wordings of their prior decisions as judges. Cogent arguments tied clearly and understandably to sound interpretations of the law, indicating a good knowledge of precedent and reasonable logic for upholding or diverging from precedent, will always provide the most reliable indication of judicial competence.

A good judge is one that will not distort the law to support his or her personal feelings about what the law "should" be, but who can also look carefully at the law and see all of its implications in the light of the larger public good, and use that public good (as they see it) as the base of their ruling. There is much gray area there. Those with the responsibility of nominating people for judicial appointments should take their time, be thorough, and rely on legal expertise from both ends of the ideological spectrum. Controversy helps no one, in the long run.

I assume you're being facetious in your suggestion about violence against "activist" judges. While Senator Cornyn might find such behavior "understandable," it is unlikely that law enforcement (not to mention the judges who would hear such a criminal case) would do so!

Good luck with your local judiciary, Andy, and thanks for writing Auntie Pinko!

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