Friday, July 28, 2006

"Activist" Judges Defined; Test is Eye of the Beholder

Found this interesting definition of "activist judge" in the Christian Coalition of Georgia's 2006 questionnaire for judges, who unlike judges in Virginia, campaign to get elected:

"Judicial activism occurs when a judge interjects his or her own personal beliefs and policy views to achieve a desired outcome by failing to adhere closely and strictly to the text of a statute or constitutional provision."

The questionnaire asks candidates to declare that this would never be appropriate in any case.

It also goes on to ask judges (often in biased language and slanted wording) for their personal, moral or policy views on a variety of topics including:

Roe v. Wade
Denial of adoption based on sexual orientation
Domestic partner benefits
Same sex marriage
Prayer in schools
Flag burning and
Tort Reform

These are just some of the policy, personal and moral issues covered in the 37 question form candidates for Georgia judgeships are asked to sign.

Forget judicial independence. Forget that the common law tradition we brought from England is a tradition of judge-made law that still controls much of tort and contract law.

Just ask yourself, if personal views are to be set aside, why do we need to know what a judge's views are?

Now it's clear. The Christian Coalition is simply looking for judges who will be activists on their side of the issues.

Kind of like when Jerry Falwell went shopping for a federal judge (supported by the ACLU) when he wanted the Virginia constitutional provision banning the incorporation of churches declared unconstitutional under the federal constitution.

Now that a federal judge has held Virginia's constitutional limitation unconstitutional, the voters will be asked in the fall to vote to repeal it as "obsolete".

Seems kind of ironic doesn't it? Asking the voters to approve the unappealed finding of a single "activist judge" who held a provision of Virginia law must yield to the higher power of rights guaranteed in the federal constitution.

Where in the US constitution does it say that a church has a right to be incorporated? Does a church have freedom of religion? Isn't it a judicial extension of the First Amendment to say that its protection of individual religious free exercise extends to the corporate form of organizational entities?

Just asking.....

1 comment:

Bill Garnett said...

Has our basic and most fundamental concept of government changed since I was in high school? – in the 60’s, I’m afraid I have to admit. Seems back then that there were three coequal and balanced branches of government.

Certainly, in looking back – was it activist judges who brought about integration when elected legislators failed to have the wisdom and courage to bring this about by law? Was it activist judges who ruled that mixed marriages are no longer to be illegal? And was it recently activist judges who ruled in Lawrence v. Texas that individuals have a right to privacy in their own bedrooms?

The question may be better put, do the courts rule on their best interpretation of the intent of the law or do they rule on the letter of the law? Were our founding fathers here today, rather in their time and context of 230 years ago, I’d imagine the democratic and rational thinking of the likes of Jefferson, Washington, and Patrick Henry would support the equality in civil law of homosexuals.

But silly me – maybe my high school education is just out of date in 2006.