I have followed with great interest the debate on Iowa’s judicial selection process, particularly in light of the 2009 decision by the state’s Supreme Court to legalize so-called “gay marriage.”
Not surprisingly, many Iowans are pretty upset that a small group of unelected judges discovered a “right” to gay marriage in the state’s 1857 Constitution.
The action of the Iowa Supreme Court fundamentally changed the definition of society’s most ancient and sacred institution: the traditional family. The very idea of seven people having this kind of authority should frighten every liberty-loving American, but it is exactly the kind of authority judges are ascribing to themselves in our era of judicial activism.
All across the country, judges are making themselves a “super legislature” where their opinions are treated as fundamental law, no matter how ridiculous the ruling.
One of the things that made America great was our belief in the rule of law. This belief held every citizen was under the law – even judges (especially judges). But in recent times, this ancient principle has been redefined by the courts. The rule of law now means the rule of lawyers. Whatever lawyer holds the highest position in our court system gets to make the rules. If he or she doesn’t like a law, it is simply overturned by a court order. This means we no longer live in a society where the supreme law of the land is the Constitution enacted by the people.
If judges say the Constitution allows them to raise taxes by court order – as they have said in Kansas and elsewhere – then that is the law. If judges say that marriage can be defined as two men, or three men, or four men and their two favorite dogs, then that will be the law, too.
That is why it is so important the people insist they be allowed to select those who sit on the bench over them. If judges want to be “super legislators,” then they must stand before their constituents and tell them what they believe about the Constitution as it relates to current public policy debates.
This is anathema to activist judges today because they want to hide behind ancient ethics rules that frown on judges discussing issues that could appear before them in court. Those rules are well and good – in a society where judges stick to their traditional job description. But when judges use the law like Silly Putty and make themselves essentially black-robed dictators with unlimited jurisdiction, they must be held to account.
In 2004, I was elected to the Alabama Supreme Court. In my race, voters were allowed to hold a sitting justice accountable for voting to remove the Ten Commandments from the Alabama Judicial Building.
Many argue that electing judges will make a political judiciary that much worse because special interests will be able to buy off judges. First, if people honestly believe that the appointed method of selecting judges is not influenced by special interests, I have a bridge to sell them in New York.
Second, I was elected by the people because of my record on fundamental issues of vital concern to the public – not by special interest funding. Thus, I am free to be a fair and balanced judge on the Alabama Supreme Court. When you look at my decisions, it is readily seen that I do not fall into either the “pro-plaintiff” or “pro-big business” camp. I seek to apply the law fairly to all parties. Although this has made me a target by certain special interests, the voters of Alabama evidently favor my balanced position, because I recently won my nomination battle with 60 percent of the vote against two opponents.
It is possible to have elected judges who are not “bought and paid for” by special interests. Merely appointing judges does not stop corruption in the judiciary. It simply allows all the special interest shenanigans to take place behind closed doors instead of in the public view where they should be.
The bottom line: If judges want to make law, they must “pay to play.” They should not be given the most elite and powerful position in the country without first facing their own judges – we the people.
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