Ask Auntie Pinko
April 7, 2005
By 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
Does this make them "activist" judges? And, if so, would it
be "understandable" if I undertook some kind of violence against
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
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
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
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