Centerfield

So judges aren't supposed to make rulings that they believe follow the law because it pisses off people and makes them vote Republican?

Is that the gist?

Posted by: carla at November 21, 2004 06:41 PM

Judges should be very careful about innovating, and departing from precedent. As we've discussed in a previous post, I endorse "loose construction" when judges are trying to get the law to catch up with the consensus of society. But questionable rulings, especially when they don't represent majority preference, are more like Plato's or Strassian guardianship.

In the case of civil rights rulings of the 1960's, upholding Civil Rights legislation confirmed laws supported by the majority and a social consensus outside the South, and were also consistent with the constitutional amendments adopted after the civil war.

Regarding religion, the First Amendment prevents the establishment of religion, but attempts to purge generic religious language from the public sphere go far beyond both its original intent, and the manifest will of the majority of Americans.

Posted by: rickheller at November 21, 2004 07:10 PM

Carla, as you well know, the democrats are getting their clocks cleaned at the ballot box. The pursuit of constitution remedy for all perceived social injustices may well be contributing to that.

All those who consider themselves to be social progressives are free to keep pursuing such lawsuits. And judges, especially those inclined to view social progressives favorably, are free to keep making copasetic legal interpretations. The point is that there may be more reckonings to come at the ballot box. Unless you're tone deaf, you should have gotten this gist already.

Posted by: bk at November 21, 2004 07:57 PM

The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters.

I have to disagree with the premise here; voters are persuaded by sound bites; in my experience, judges rarely are. Leaving for a moment the argument about judicial activism, to the extent that an argument is more nuanced, and the nuances are more welcome, in court than in the public media, there must of necessity be some disparity between what voters do and what judges interpret the law to mean. Moreover, judges and voters begin their analyses from different origins: voters proceed based on what they perceive ought to be; judges proceed based on what they perceive the law to require or accommodate (and, indeed, the subtle distinction between requirement and accommodation is often the one underlying allegations of judicial activism in the first place). In other words, voters are unencumbered at the ballot box with the centuries of jurisprudence and precedent that one-part guide and one-part restrain judges. Posted by: The Jaded JD at November 21, 2004 08:07 PM

Rick and bk:

I think the notion that people are voting Republican based on the notion of judicial rulings is a false premise. Democrats are not getting their clocks cleaned at the ballot box, either. They've lost some races at the national level..but many were extremely close and Dems made some very important wins at the local and state levels. So the second premise is false as well.

Judges are bound by law. Sometimes law doesn't always shake out the way that social conservatives like it. Social conservatives of the far right kind tend to be pretty intolerant of equal rights and equal opportunities.

If judges become subject to the whims of a vocal group of citizens who dont' like or understand the law..what's the point of having judges at all?

There's some principles involved here that go beyond politics.

Posted by: carla at November 21, 2004 10:01 PM

Carla,

I think you're unduly optimistic about the state of the Democratic Party. It's true that Kerry lost by only 3%, which would imply that the Democrats are competitive. But the situation in Congress is much worse. As blogged previously, there seems little likelihood that the Democrats can take the Senate or the House in 2006, unless the next two years are an absolute disaster. And as someone who thinks Bush's record from 2002-2004 was pretty bad, it's not clear how he can do even worse in the next two years.

I can understand the frustration among liberals in not getting their political agenda passed, and so taking satisfaction when judges push it through from on high. I support gay marriage, but I think it's a stretch to think that judges have no choice but to find it required by the Constitution.

Posted by: rickheller at November 21, 2004 10:53 PM

Once again, the entire Democratic party is blamed for the actions of a few extreme liberals.

Did any Democratic politicians campaign to remove "under God" from the Pledge of Allegiance? If so, I didn't hear about it.

Posted by: Oberon at November 21, 2004 11:00 PM

I think we need to tread very lightly here. Any suggestion that "we" should back aware from the process that lead to Brown v. Board of Education, or Miranda or dare I say Roe v. Wade will be seenas an attempt to "sell out principles" for votes and certainly frighten constituencies that both parties court (i.e. minority voters, women voters).

Democrats out there help me. Is going to court a "democratic party strategy" or simply a growing phenomenom of the late 20th century?

Posted by: Chris at November 21, 2004 11:00 PM

I know plenty of people who don't really care much one way or the other about gay marriage, but get incensed that a court over which they have almost no control would impose such a major social CHANGE utterly outside the democratic process.

All the recent talk by Democrats about "secession" is not really new. Every time the left has tried to achieve its objectives for social change through the courthouse rather than the ballot box, it has confessed that it cares so little for the feelings of the majority (the "red states") that it won't bother trying to persuade the rest of us to the new point of view. They've been seceding from the democratic process for decades.

Posted by: PatHMV at November 21, 2004 11:44 PM

Once again, the entire Democratic party is blamed for the actions of a few extreme liberals. Did any Democratic politicians campaign to remove "under God" from the Pledge of Allegiance? If so, I didn't hear about it.

John Kerry's campaign religion advisor, the Rev. Brenda Bartella Peterson, was one of 32 clergy members to file a friend-of-the-court brief on behalf of the atheist who challenged the words "under God" in the Pledge of Allegiance. Of all the people in the world he could have chosen...

If Democrats don't want to be tarred with the actions of a few extreme liberals, they could distance themselves by speaking out against their views, or at least avoid hiring them on as top advisors. Then again maybe it's better they show their true colors and let the voters decide.

Posted by: Susan at November 22, 2004 01:35 AM

Perhaps for the first time, I agree with Susan. Democrats need to be aware how unpopular the agenda of extreme liberals is in the country. My sense of the Kerry campaign is that even though he ran with a centrist agenda, he and his advisors are liberals, and they were, to a certain extent, being inauthentic. They didn't have centrist instincts which would, for instance, give them a sense of how they should distance themselves from challenges to "under God."

Similarly, while Kerry said he was against gay marriage, no one believed him--not the religious right, nor gay activists. Bill Clinton advised him to endorse one of the anti-gay marriage initiatives, to demonstrate the sincerity of his opposition, and Kerry refused.

When I say that the Democrats should put up a centrist candidate in 2008, it's probably a bad idea for it to be a liberal who is faking centrism. People see through that, and it leads to charges of "flip-flopping." Democrats ought to run a real centrist next time.

Posted by: rickheller at November 22, 2004 08:32 AM

Any person who can name Kerry's religious advisor and knows she signed a friend-of-the-court brief on challenging "under God" in the Pledge of Allegiance is never going to vote Democrat anyway.

But I think Susan is right -- if Kerry wanted to make a statement on this issue, he should have fired her.

And call me naive, but I believed Kerry actually favored making civil unions legal, but did not favor gay marriage.

If you start from the belief that Kerry is perfectly liberal, and then you add the belief that all liberals want gay marriage, then I guess you have to assume Kerry was lying.

Posted by: Oberon at November 22, 2004 09:51 AM

I am against judicial activism for three reasons:
1) I don't think the framers intended for the judicial branch to make laws. Reviewing Constitutionality and striking un-Constitutional laws is okay (you could argue the Framers didn't plan on that also). The judicial branch's job is to interpet law based on the Constitution and existing precedents. The further any judge strays from interpretation and precedent the more wrong he is.
2) Reciprocity. What's good for the goose...etc. There are certain tactics best avoided by Republicans and Democrats for the simple reason that neither side is stupid and can play ball that way too. Imagine the Republicans pick up a few more seats in the House and Senate in 2006. Suddenly the judges being appointed are going to be conservative activists. How do you like the courts now gay marriage advocates, abortionists, etc. What's the quote "A man convinced against his will is of the same mind still".
3) Judges should not legislate because they are rarely directly elected. They should be a check upon the people's excesses (i.e. They should tell the people what they cannot do, but never what they will do).

If judicial activists aren't careful they might trigger the people's check on judicial activism (Constitutional Amendments). It's not too hard to imagine a wave of anger at activist decisions leading to amendments similar to the 11 voted on in Nov. IIRC, the 11 enacted last election join 6 other states that already had amendments against it. That's 17 that have Constitutional Amendments. It's not a stretch to assume that a couple of more Gavin Newsom stunts and/or Massachussetts type court rulings could get states such as FL,AL,SC,NC,TN,VA,WV,TX,AZ,KS,WY,ID to consider adding one of their own. These states would probably pass them bring the total to 29. That's pretty close to the margin needed to enact a Federal Amendment. Getting the Federal Amendment passed is doable. Getting it repealed would be much more difficult. Per the ChristianExaminer most of these amendments passed 60% plus:
"The vote percentage on the state amendments were: Oregon, 56-44; Ohio, 62-38; Michigan, 59-41; Montana, 66-34; North Dakota, 73-27; Oklahoma, 76-24; Utah, 66-34; Georgia, 77-23; Kentucky, 75-25; Arkansas, 75-25; Mississippi, 86-14."

Posted by: Jason at November 22, 2004 10:00 AM

Any person who can name Kerry's religious advisor and knows she signed a friend-of-the-court brief on challenging "under God" in the Pledge of Allegiance is never going to vote Democrat anyway.

I'd better clarify -- that was meant as humor.

Lame humor.

Posted by: Oberon at November 22, 2004 10:06 AM

I haven't seen activism vs. strict contstructionists discussed in detail on the television or in the written media.

Where does the public gain the information that shapes their opinions - radio, pulpits, legal community, in homes?

Has this been a recurring theme since the 1950s?

Posted by: Jamie at November 22, 2004 10:48 AM

Jamie,

I don't think the average working class person would be familiar with the phrase "strict constructionism." But growing up in a working class family in the 1960's and 1970's and living in a declinindg northeast urban area (Newark) plagued by crime, a big wedge issue at that time was law and order. While nobody in New Jersey criticized the Warren Court's Brown vs. Board of Education decision, later decisions were thought to be creating new rights for the accused which allowed many criminals to get off on technicalities and continue to prey on the urban working class.

This was a major theme of cinema in the 1970's, of which Dirty Harry is the best known.

Law and order was the original wedge issue which wedged the working class away from the Democratic Party. It has been less of an issue since crime started to go down in the Clinton years.

Posted by: rickheller at November 22, 2004 11:41 AM

Thanks, Rick. I'm a Dirty Harry fan. :)

Posted by: Jamie at November 22, 2004 11:54 AM

In a previous related discussion I voiced my strong objections to the practice of "judicial activism"... and I reitarate those here.

However, I also firmly believe that judges should be completely insensitive and even blind to public opinion when ruling on the law. The legislatures role is to be responsive to public opinion in crafting law. The judiciaries role is to interpret that law fairly and accuractely REGARDLESS of public opinion. Let's not forget that one of the most important facets of our legal system is that it protects the rights of individuals from being trampled upon by a tryanny of the majority.

I will never have a problem with a judge who basis thier ruling upon what the law actualy says ... and upon what can clearly be discerned as the intent of the legislature that wrote it.... even if I don't like the law. That to me is a "constructionist" stance.... and I wholly support it.

Where I have a problem is when a judge substitutes his/her own DESIRE of what the law AUGHT to say ..for what the law ACTUALY says and what the legislature who wrote it clearly intended....and then tortures an interpretation out of the language in order to fulfill that desire. That is what I define as "judicial activism" and I will ALWAYS oppose it....even when it helps further causes which I actualy support.

I have no program if Liberals and "Progressives" bring forth lawsuits if they happen to believe existing law supports thier position. I have a HUGE problem if Liberals and "Progressives" try to get "activist" judges appointed who they hope will further thier agenda REGARDLESS OF EXISTING LAW. The former is a cornerstone of our system of government, the latter erodes it.

Posted by: Cengel at November 22, 2004 03:29 PM

Rick:

I wasn't under the impression that the various states were using the US Constitution to determine the legality of gay marriage. In fact I believe it was using the various state Constitutions to determine that legality. I know for certain that was the case in Oregon.

I personally think the gnashing of teeth over the state of the Democratic Party (in general) is somewhat silly on it's face. I'll grant that perhaps I'm an optimist..but IMO the Democrats have a good foundation. They require a better framing of message and they require a better echo chamber. Most people don't have a problem with gay marriage in the form of civil unions, for example. Most people want MORE enviornmental protections, not less. Most people want effective government and are willing to pay taxes to get it. All of those are proliberal issues.

I personally think that the country is in for a big backlash against the rightwing social conservatives. It might not be in time for 2006...but it's possible.

Posted by: carla at November 22, 2004 05:12 PM

Carla,

While I agree that the pendulum will likely swing against conservatives eventually, the quesiton is how much damage will they have wrought before it does. The only part of Jason's comment above I agree with is that, if a Federal Marriage Amendment is passed, it will be much more difficult to repeal.

Cengel,

We went back and forth about this in my earlier post, but you seem to be laboring under the misapprehension that there is some objective truth in either statute or case law, an objective truth that can either be realized and obeyed by the judge in question, or carelessly disregarded in favor personal bias. If the intent of most statutes was so unquestionably clear as you suggest it is, there wouldn't be litigation. In the real world of legal practice, examples of statutes that are clear and unequivocal on their face are very rare. I'd like to see some examples of federal statutes where "what the law actually says" is utterly beyond dispute.

Posted by: The Jaded JD at November 22, 2004 05:39 PM

If a judge does perform 'judicial activism', can't the ruling be appealed? Many times this term is used as code words for 'ruling against my beliefs.'

Posted by: EG at November 22, 2004 07:01 PM

.

All the legal action so far seems to be focused on state constitutions. I think the national constitutional problem centers on the privileges and immunities clause (I think) -- if a marriage is recognized in one state, must it be recognized in all? Federal law, I think, specifically states that states do not have to recognize same-sex marriages recognized in other states, but whether the U.S. Supreme Court would agree is an open question. There are, of course, many exceptions to the privileges and immunities clause -- more exceptions than rules -- but marriages have always been included under it.

It bears noting, of course, that no state has legalized same-sex marriage, though one might in the future. Even in Vermont, it's civil unions (and what does Hawaii have?). And civil unions would seem to be the obvious solution to many state constitutional problems, in terms of providing equal rights.

I'm not sure if the courts have ruled about the privileges and immunities clause with respect to civil unions, but I'm assuming that if they did -- or when they do -- it will be seen as an exception to the clause, like most state benefits.
Does anyone know?

I know that Bush's position and Kerry's position (at least as I understand it) is the one most compatible with majority opinion -- marriage is out, but civil unions are okay, to be decided on a state-by-state basis. The difference between Bush and Kerry (and many other dems), as I understand it, is that Bush favors an amendment, whereas the Democrats pretty uniformly do not. I suppose the advantage of this "civil unions are okay" approach, if one is opposed to same-sex marriage, is that some states would not have civil unions, and some states would have less generous arrangements regarding same-sex marriage. And such an approach, if passed as a constitutional amendment, would presumably address the privileges and immunities question. And maybe it makes sense (if one is opposed to same-sex marraiges) to start the amendment process, in case (1) some state really does legalize same-sex marriage, calling it that (as opposed to an equivalent civil union), and (2) the U.S. Supreme Court rules that other states need to recognize that.

But to be honest, I really don't see much difference between some versions of civil unions and a civil marriage -- I mean, if someone has a same-sex relationship solemnized by a religion, and the couple chooses to call that a marriage, but it's called a civil union by the state, with all the same legal elements.....I don't see how that's much different, in reality, than what I have.

The interesting thing about a constitutional amendment that would open the door to civil unions is that it might make civil unions more likely....which is presumably not what someone opposed to same-sex marriage would want.

Posted by: kate at November 22, 2004 07:07 PM

I personally don't find the "under God" (or "In God We Trust" or anything like that) to be a violation of Amendment I. And I have never gotten the sense that it's the burning issue for Democrats, and -- well, every elected official has advisors that I disagree with on some matters, some more than others.

But I've always found the Pledge fascinating. Wasn't it crafted by a Socialist? ("one nation, indivisible, with liberty and justice for all"). And changed over time for political reasons?

Posted by: kate at November 22, 2004 07:12 PM

I agree with Jaded JD's statement about how judges rule. I think most lawyers realize that it's naive to think that all judges do is find out what the law "is." That might be true in some cases, but as Jaded notes, in most cases there are two sides, otherwise there wouldn't be litigation. Judges are human and their biases and backgrounds can't help but influence their decisions.

In general, I think liberals have made a serious mistake in abandoning the democratic process and working through the courts. But the Democratic Party can't really be held responsible for this. I'm sure the guy suing to strike "under God" from the Pledge of Allegiance didn't consult with Terry McAuliffe.

My personal feeling is that liberals need to chill out on things like this. Accept that most people are religious and that they want the phrase "under God" in the pledge. Maybe "under God" violates the Constitution and maybe it doesn't. The point is, it's just not that big a deal. The Constitution doesn't give everyone a right to be comfortable at all times. There needs to be some allowance for public opinion. That doesn't mean that you should ignore gross violations of someone's rights, but, come on, having to recite (and no one is really forced to say it) "under God" is a pretty small thing in the litany of human oppression. I'm a non-believer myself, but I cannot understand being so sensitive to religion that you get bent out of shape over saying "under God." These are the kinds of things that drive people crazy about liberals--a sense that liberals want to make a mountain out of a mole hill over things that don't matter. Pick your battles.

Same-sex marriage (while it's obviously a bigger deal) has the same dynamics. A lot of gay rights activists recognized that a court decison in favor of gay marriage would be a disaster and that's what it has been. It's this kind of litigation strategy (which the Democratic Party has nothing to do with) that has really, IMO, put Democrats on the defensive. It's not necessarily a matter of "hate" or "bigotry." It's a matter of people being adverse to too much change too quickly. Liberals need to accept human frailty for what it is rather than railing at our inability to seek perfection.

Posted by: MWS at November 22, 2004 09:56 PM

Kate,

Re the pledge, yes, "under God" was added in 1954, or sometime thereabout as I recall.

Re the Federal Marriage Amendment, the interpretation of the current text is subject to wide debate. Some disingenuously argue that the amendment would only ban marriage and allow the states to adopt their own regulations. The text of the amendment makes that interpretation highly unlikely. For more, including the text, see here.

Posted by: The Jaded JD at November 22, 2004 09:59 PM

The Jaded JD,

Thanks for the link.

I just found this blog this week, and I have to say, it's really populated by some of the most intelligent conversation that I've seen on the web.

Posted by: kate at November 23, 2004 12:22 AM

Welcome, kate. I'm glad you're here. :)

Posted by: Jamie at November 23, 2004 10:31 AM

JD,

I'm no lawyer, but I really think you are mis-stating things.

-
"If the intent of most statutes was so unquestionably clear as you suggest it is, there wouldn't be litigation."
-

Most litigation that I've seen doesn't even hinge upon a question of law, it hinges upon a question of fact. Furthermore, you and I know full-well that even when law and fact are undoubtedly clear in a lawyers own mind they will often-times still make an attempt to argue against them hoping there is some chance rhetorical skills will prevail against objective truth.

You seem to act like the English language is some indecipherable cypher that no one can possibly derive clear meaning from. Furthermore you act like legislatures are incapable of something even a 5 year old child can accomplish...translating thier actual intent into words that can be understood by others. You can try to rationalize and excuse all you want but it rings hollow.

Hence lies the way of debates about the meaning of the word "is". I'd love to see how certain judges would react if litigants were able to ignore thier instructions by simply pretending they were "interpreting" them in the same way those judges treat the instructions of the legislature.... "Yes, your honor, I know you told me to stay 500ft away from the edge of the property but you didn't say that you meant a foot which consisted of 12 inches....and the property is circular so it really has no edges".

There certainly are some cases where a question of law may not be clear....and in a very few of those cases a judge may not even have decades of prior precident to draw upon..... but most of the time there really is no question what the law actualy means to cover and what it doesn't... not for anyone who gives an honest reading of it.

A simple and well known example.....

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Any first grade english teacher can tell what instruction is contained in that sentance... subject, verb, object.

Any Scholar can tell you what the definition of what each one of those terms holds in the parlance of Colonial America.

Any historian can tell you what meaning the idea of personal armament held for the members of the Continental Congress and what traditions, philosophies and real world incidents would have been borne in thier mind at the time of the writing.

The Framers may have written in broad strokes, but they were also very precise in thier use of language as a tool to express thier meaning.

They could have written... "The states shall be empowered to field armed militias"

They could have written.... "The right of the people to enlist in a State militia shall not be infringed"

Instead they wrote what they actualy wrote and it's meaning should be absolutely clear to any reader with a shred of honesty that has attempted to make even a cursory study of the above.

Yet over the years, the courts have continualy tried to INVENT ways not to understand that meaning. Why? because if they ruled based upon an honest reading of it...various state, local and federal governments might find the law INCONVENIANT. Sorry, but pretending you can't understand an instruction in order to avoid following it is a game for little children not grown men. Either follow the law or change it...but don't pretend you are no longer capable of understanding it.

Posted by: Cengel at November 23, 2004 11:41 AM

I endorse "loose construction" when judges are trying to get the law to catch up with the consensus of society.

Who puts a check on judges? What about Dred Scott, which could be argued, was when "judges [were] trying to get the law to catch up with the consensus..." Not everything the courts decree is good. In facts, the courts are quite capable of passing down unjust rulings. Following precedent isn't necessarily always a good thing.

Posted by: Don T. Know at November 23, 2004 01:09 PM

John Kerry's campaign religion advisor, the Rev. Brenda Bartella Peterson, was one of 32 clergy members to file a friend-of-the-court brief on behalf of the atheist who challenged the words "under God" in the Pledge of Allegiance. Of all the people in the world he could have chosen...If Democrats don't want to be tarred with the actions of a few extreme liberals, they could distance themselves by speaking out against their views

In other words, stop being so damned principled and do a better job of marketing yourself. It's all about perception and salesmanship. One wonders if we're electing the leader of the free world ... or if we're buying a vacuum cleaner.

It would seem that ideas no longer matter. If you can deliver enough digestible sound bites and you look handsome, you've got a shot. But, God help you if you go out on a limb and take a stand on something.

If this is what politics has come to (all shine and no substance), I certainly want no part of it.

Posted by: Don T. Know at November 23, 2004 01:20 PM

While I agree that it probably shouldn't be a high priority on a Democratic agenda, I reject the idea that opposing "under God" in the Pledge of Allegiance is somehow an extremist point of view. After all, those words were added relatively recently in America's history. Was the original author of the Pledge an extremist for failing to mention God?

In any case, removing "under God" from the Pledge would not be the equivalent of "throwing God out of America" as Christian fundamentalists -- true extremists -- claim. By their logic, God was never in America until red-baiters of the 1950s added "under God" to the Pledge. In any case, what kind of God is it that needs the assistance of mental midgets in order for there to be any hope of Americans recognizing and respecting the Almighty?

Posted by: Don T. Know at November 23, 2004 01:34 PM