Scary Costumes for 2010, Monday Submission: The Activist Judge!

25 Oct

They skulk about in black robes. They use their gavels to chip away your freedom. They make unilateral decisions from their unelected pedestals. They HATE YOUR FAMILY!! They are … the Activist Judges!

One of my favorite examples of Right-wing blowhards co-opting language for their own purposes is the phrase “Activist Judge”. What does that even mean? In what way is determining that the equal protection clause of the U.S. Constitution actually provides >ahem< equal protection to everyone, regardless of their sexual orientation, activism? The term “judicial activism” dates back to 1947. Even then, although the initial use was less Left vs. Right, legal scholars were skeptical of the term, finding it vague, misleading about the role of judges, and insulting to professional ethics.

Since the 1990’s the term has been waved by “pro-family” (i.e., anti-gay, anti-choice, anti-woman, anti…) groups any time a judge makes a decision they dislike. Recent examples include Lawrence v. Texas, Perry v. Schwarzenegger, and Varnum v. Brien. Retroactively, the wingnuts have applied the term to other decisions they dislike, such as Roe v. Wade and Brown v. Board of Education.

One of the complaints that the obfuscationists like to use is that the judges making these rulings are “unelected.” Irony #1 – many judges are elected, including Appellate judges and Supreme Court justices in many states. Irony #2 – when they are not elected, it is part of the system of checks and balances, intended to protect the judicial system from the fluctuations of public opinion. We live in a representative democracy, selecting officials to make decisions on our behalf. Selection of judges and justices is one of those decisions. Irony #3 – in many places even appointed judges are subject to recall, an opportunity for the people to at least “unelect” them.

The most offensive thing about the term, of course, is the hypocrisy with which it is applied. (Shocking! Hypocritical wingnuts! Where are my smelling salts?) Make a decision protecting minorities, saving the environment, or requiring fair treatment? ACTIVISM! Make a decision illegally appointing the President of the United States or saying that corporate spending is the same as free speech? Well that’s some good old-fashioned restraint. Bleagh.

5 Responses to “Scary Costumes for 2010, Monday Submission: The Activist Judge!”

  1. Jennifer October 25, 2010 at 9:06 am #

    What people fail to realize is that judges should *not* be elected as they should not be influenced by the same passions that inspire elections to begin with. We have a need in a democracy to be protected from the ‘tyranny of the majority.’ If we were entirely ruled by a ‘majority rules’ system, then women would still not have the vote (as the majority of men didn’t want to give it to them), only land-owners would be allowed to participate in politicas (as many of the founding fathers, including my hero Thomas Jefferson wanted), slavery and segregation would still abound.
    The role of judges is to establish justice and the rights of individuals in spite of what is popular – not influenced by it. Sure, some judges have agendas (both ways), that’s why we have an appeals system. And we may never agree with their decisions… but the ‘majority’ should never have a say in a ruling.

    • Mary Sauve October 25, 2010 at 9:50 am #

      Brilliant comment Jennifer. I completely concur!

    • Michael Hulshof-Schmidt October 25, 2010 at 10:31 am #

      Jen and Mary, I’m so fortunate to have you both as contributors to this blog!

  2. rhulshofschmidt October 25, 2010 at 9:31 am #

    I agree, Jennifer. I’ve always found it interesting that so many places *do* elect their judges. Being subjected to the winds of popular election makes objectivity harder, I would think. The wingnuts tried to take advantage of this in 2004, running “family values judges” as candidates for several state supreme courts as a preemptive strike against what Massachusetts did for gay marriage. Fortunately their efforts fell universally flat.

    • Jennifer October 25, 2010 at 2:40 pm #

      Thank ou Robert. And you know what? I worked for years in the legal system (as a legal secretary and a paralegal) in order to support myself in college and graduate school. I actually found that most judges (not all) could put aside their personal viewpoints/agendas while on the bench – for example, an ardent ‘pro-life’ judge could rule fairly and efficiently on the bunch in a case involving the murder of a medical doctor that performed abortions. Most (again, not all) judges have a strong sense of justice and ‘the law’ and are not interested in writing legislation from the bench. Of course, this can also be infuriating – watching a judge set a criminal free because of a clerical error can make you want to stab someone (and thus pray for clerical errors on your own warrants). However, it is a system that largely works.
      I will tell you, a big eye-opening experience for me was listening to a group of judges my grandfather (an old school attorney) was eating lunch with complaining about their own rulings.

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