Thoughts of an American Centrist

Friday, April 22, 2005

How do you sway an Unelected Judge?

I recently replied to a comment from a reader of The Moderate Voice, asking "how are we supposed to react" to judicial decision that we may disagree with. See my answer below.

We're supposed to react in a way that fixes the problem. We're supposed to put up a unified front of popular opinion to sway judges with reason as well as passion. What we are not to do is threaten, belittle, or otherwise undermine the entire judiciary system itself.

The reason that judges are appointed for life is so they do NOT have to cow-tow to the loudest group of objectioners and compromise their principles and their interpretation of the Constitution. Also remember, if we as a people really really don't like a particular aspect of the Constitution, our elected representatives can change it.

But even despite all this, popular opinion DOES have an effect when judges truly go to far. Look at the 9th circuit decision on the pledge. They took "under God" out of it, we were all outraged, and the decision was reversed. That occured because there was a massive protest against the decision.

I'd like you to point out one issue where the bench is "arrogantly defying the will of the voters again and again."

Gay marriage? The only decisions that have been handed down in support of gay marriage are in Vermont and Massachusetts: two states open to the idea. Just the other day, Connecticut's legislature passed civil unions legislation without even a court decision making it necessary.

How about the Schiavo case? This is another one where Congress and the FRC types are lambasting our judges. However, in this case it was CONGRESS that was acting against the will of the people, and the judges supported the overwhelming, less vocal, majority.

Abortion? Big contentious issue. Too bad for the "legislating on the bench" criers that Americans answer to the "Pro-Choice" label in proportions consistently exceeding 60%.

How about the biggest legislation from the bench of all time: Brown v. Board of Ed. Surely you're not arguing that the Cort was way off base on this one, are you?


  • I agree with you. Oddly (to some, not to me) this is also why I don't have a problem with the Republicans changing the filibuster rules in the Senate for judicial nominations - even above its obvious legality. The only normal "check and balance" we have on the judicial branch is by the nomination process. (Impeachment is obviously an "abnormal" process.) One reason the GOP asked people to vote for them is that they would put in judges who thought differently from the ones in there. Democrats want no part of THAT. But they certainly didn't mind it when they were the majority party.

    By Blogger The Iconic Midwesterner, at 5:21 PM  

  • You bring up a very good point, though it can be argued also that some people voted Democrat in order to block judicial nominations, so we'll go around in circles.

    Personally, I think the whole situation reeks of hypocricy. Each side acts as if it is acting on principle, but taking one step back we see that it's not. If the situation were reversed with a Democratic President and a Democratic Senate, the Republicans would be filibustering and the Democrats would throw all this "checks and balances*" nonsense out the window and start talking equal nonsense about "unconstitutionality of the filibuster."

    *Checks and balances are a great idea, but it applies to branches of the government, not minority/majority party relations.

    By Blogger Jonathan C, at 8:46 PM  

  • The reverse situation has occured in the past, and I don't recall a major Democratic push for overturning the filibuster rules. This line of argument strikes me as demonstrably faulty.

    The advise/consent role of Congress in judicial nominations is an important part of the system of checks and balances. Removing the filibuster would weaken the check on executive authority in this matter.

    By Anonymous McWyrm, at 11:02 AM  

  • I agree that the filibuster is a useful tool in preserving minority rights (which I have previously commented on here. I see your point about weakening the check on executive authority, but I do not belive it is applicable since the Constitution does not even mention (let alone regulate) political parties.

    The push to remove the filibuster on judicial nominees in the 90's was less public than that of today, but the idea was floated by some current Democratic Senators. Also, current Democratic Senator Byrd DID remove the filibusters on other issues during the 70's and 80's. I believe the accusation of double hypocricy is well justified in this case.

    By Blogger Jonathan C, at 11:48 AM  

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