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Conservatives love "results oriented judges" they agree with

Adam Serwer is a Staff Writer at The American Prospect, where he writes his own blog.

Alongside the historic Republican victories in the House Tuesday, conservatives attempting to block marriage rights for same-sex couples managed to oust three judges in Iowa who overturned a ban on gay marriage. In doing so, opponents of same-sex marriage showed they aren't so much interested in preventing results-oriented judging -- something they constantly rail against as a symptom of liberal judges running wild -- as they are in leveraging it in their favor. 

In August, when Judge Vaughn Walker overturned a ban on same-sex marriage in California because proponents failed to provide an effective argument for why the government had a compelling interest in preventing gays and lesbians from getting married, conservatives slammed the Republican appointee as a "results-oriented liberal judicial judge," and an "activist" substituting his liberal sensibilities for the popular will.

Of course the entire point of an independent judiciary is that the law guides rulings, not what is popular. This is precisely why electing judges is a bad idea. Banning same-sex marriage isn't rooted in the Constitution -- indeed it's a straightforward violation of the equal protection clause. But as with laws legalizing slavery and racial discrimination, cultural currents deeply affect how judges view the law. Judges are elected in 38 states, a system that enhances the possibility of capricious and arbitrary interpretations of the law by forcing judges to consider whether or not a particular ruling will force them off the bench.

That kind of "results-oriented judging" is exactly what anti-marriage equality activists are counting on by throwing out the Iowa judges who overturned a gay marriage ban. It wasn't just about Iowa; the point was to send a clear message to any judge whose role is subject to a popular vote that they will be targeted if they don't interpret the law the way the Family Research Center or National Organization for Marriage want them to. The removal of the Iowa judges is a rather perfect example of the dangers of "faction" that James Madison warned about, where matters "are decided not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."

The problem for anti-marriage equality activists is that by relying on this system of might makes right, they're living on borrowed time. Support for same-sex marriage rights has been inching toward a decisive majority for years. It's really only a matter of time before opponents of marriage equality find themselves the minor party, and an overbearing majority of Americans look back at Prop 8 with the same kind of confusion as Plessy v. Ferguson, wondering how such a world could ever have existed.

By Adam Serwer  | November 4, 2010; 11:26 AM ET
Categories:  Miscellaneous  
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Next: Defining "compromise"

Comments

You are 100% correct, no judge should ever have to stand for election. It is one of the worst ideas of the 20th century, a system guaranted to corrupt and interfere with the administration of justice.

Posted by: 54465446 | November 4, 2010 11:30 AM | Report abuse

No, it's not a "straightforward violation" of the Equal Protection clause, despite what Ted Olsen says (Barbara would be ashamed of him). When the 14th Amendment was written, NO ONE would have said it protected deviant sexual behavior.

Posted by: JakeD2 | November 4, 2010 11:32 AM | Report abuse

P.S. I don't love "results oriented judges" that I agree with (for instance, I was against the U.S. Supreme Court deciding Bush v. Gore ; )

Posted by: JakeD2 | November 4, 2010 11:33 AM | Report abuse

How about my personal favorite example of a results oriented judging, the great stone justice got pretty hot and bothered about pubescent school girls having no right to hide stuff in their panties. He felt strongly, as a strict constitutional constructivist, would be naughty girls need to know school officials might strip search them at any time, in order to enforce states' interest in zero tolerance, of course.

Clarence Thomas, all for liberties, just not individual or decent liberties.

Safford Unified School District #1 v. Redding

Posted by: shrink2 | November 4, 2010 11:43 AM | Report abuse

James Madison indeed warned about the majority infringing on LEGITIMATE minority rights in Federalist #10 (he would never have thought that the Constitution protected deviant sexual behavior either), but he also recognized the potential TYRANNY of an unelected and unchecked judiciary:

"[R]efusing or not refusing to execute a law, to stamp it with its final character... makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper."

The Founders understood that under a broad judicial review, the Judiciary might become policy-makers, which was something they explicitly forbade. As signer of the Constitution Rufus King warned, "the judges must interpret the laws; they ought not to be legislators." similarly declared that the Judiciary was forbidden to "substitute [its] own pleasure to the constitutional intentions of the Legislature." Alexander Hamilton confirmed this in Federalist #81:

"[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

Posted by: JakeD2 | November 4, 2010 11:53 AM | Report abuse

http://www.constitution.org/fed/federa81.htm

Posted by: JakeD2 | November 4, 2010 11:54 AM | Report abuse

This is crazy! The Republicans are well known to be hostile to special considerations for persons of severe, sexual disorientation (a.k.a homosexuals). Republicans do not try to hide their true convictions the way most liberals do to get elected to public office.

YET, Republicans just came roaring back after only two years in the wilderness.

The Obamacrats are cozy with the homosexual agenda and they were wiped off the map.

Please explain!

AND, the liberal affection for outlaw "immigrants" helped to destroy the Obamacrats too.

Come on! Admit it. The truth will set your tortured ego free.

Posted by: battleground51 | November 4, 2010 11:57 AM | Report abuse

Joke probably doesn't engage in many of the so called "deviant" sexual practices that are illegal regardless of one's gender.

I'm sure he's pure as the driven snow.

He also apparently knows very little about equal protection. Pity.

Posted by: ChuckinDenton | November 4, 2010 11:59 AM | Report abuse

Battleground sounds like he's from 1950's-era Mississippi vis-a-vis miscenegation laws.

You make me so proud to be a liberal and, for that I offer thanks!

Posted by: ChuckinDenton | November 4, 2010 12:04 PM | Report abuse

The leftist, Democrat party is directly responsible for making the Republican party a national powerhouse.

America is a mildly conservative to very conservative nation and always has been.

The Democrat party used to be the party of the vast, American majority and the Republican party was a regional, white men's club of a party.

The Democrat party has become the party of left-wingers and aggrieved minorities. It is driving what is left of it's mainstream people out and into the Republican tent.

Election 2010 and the TEA PARTY is just another chapter in this long running serial.

What will 2012 bring??

Posted by: battleground51 | November 4, 2010 12:07 PM | Report abuse

Today's dosage of misinformation from Mr Serwer is pretty much run of the mill. Let me sum up the total of Mr Serwer's contribution to the human store of knowledge: Conservatives bad, liberals good.

Frankly I'm glad the judges were thrown out. At some point the judiciary must be held accountable. I understand the arguments against holding judges accountable, I simply don't agree with them.

I remember when the citizens of California fired Rose Bird. This is a similar situation.

Posted by: skipsailing28 | November 4, 2010 12:07 PM | Report abuse

Speaking of miscegenation and Clarence Thomas, I wonder if he and his tea bagging wife Virginia have pillow talk on the merits of the judicial activism involved in the 1967 SCOTUS case, Loving v. Virginia.

In 1661 Virginia first passed legislation prohibiting interracial marriage, the fine was ten thousand pounds of tobacco.

In the original Loving v Virginia ruling, the judge declared, "Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Posted by: shrink2 | November 4, 2010 12:16 PM | Report abuse

A big "you're welcomed" goes out to ChuckieDenton and I'm glad you have come to terms with your liberal gene.

Overcoming a handicap is a very commendable thing.

Just look at how well Obama has done with it.

Wow!

Posted by: battleground51 | November 4, 2010 12:21 PM | Report abuse

Oh and so you know, I am all for miscegenation, once you go Malay (Borneo, Dayak) you never go back.

Posted by: shrink2 | November 4, 2010 12:23 PM | Report abuse

All, new post on the "compromise" temporary extension on the Bush tax cuts:

http://voices.washingtonpost.com/plum-line/2010/11/defining_compromise.html

Posted by: Greg Sargent | November 4, 2010 12:34 PM | Report abuse

People who confuse sexual disorientation with race are rather confused about such matters. Maybe their liberal genes are interferring with their common sense.

Race is merely a variety within the species of Homo Sapiens or humans. The natural functions of all varieties is the same and that includes the sexual function for reproduction.

Homosexuals are deviants from the normal sexual function and this is very obvious to a clinical, unbiased observer.

The question before the court is really this:

Do we give special consideration to a class of people that practice peculiar and unnatural forms of sexual acts that are performed strictly for pleasurable gratification??

That's all there is to it.

You may as well give special consideration to people who take pleasure from picking their noses.

Posted by: battleground51 | November 4, 2010 12:41 PM | Report abuse

This is not the same as the Rose Bird situation in California. I, too, remember when she and two other justices were ousted. The difference, however lies in the fact that Bird and Co. were removed for a SERIES of decisions over a considerable period of time that the electorate found unpalatable. The biggest issue was capital punishment. In Iowa, the justices were ousted for ONE, SINGLE decision (a unanimous one at that), as a means of sending a message to other judges across the nation that they had better get in line with the (shrinking) majority or risk their careers. Whatever fears Madison may have had about a tyrranical bench have been more than offset by the public good done by American justices over two centuries safeguarding the rights of minorities from majority oppression.

Posted by: jesgonzo | November 4, 2010 12:48 PM | Report abuse

battleground51,

I've had a vasectomy. When my wife and I have sex, it is therefore "strictly for pleasurable gratification" (and it is very pleasurable and gratifying!). In your view, should our marriage be prohibited by law?

Posted by: bearclaw1 | November 4, 2010 12:54 PM | Report abuse

jesgonzo:

"Whatever fears Madison may have had about a tyrranical bench have been more than offset by the public good ..."

That's your opinion, of course -- this is one bridge too far in my opinion -- if the judicial activists next start granting special rights to NAMBLA, will that be o.k. with you too?

Posted by: JakeD2 | November 4, 2010 12:55 PM | Report abuse

Its very dangerous when judges must answer directly to the people in this fashion. Requiring them to do so compels them to dispense justice in a slanted and biased manner to appease popular sentiment, sentiment that is often emotionally charged and runs counter to clear and rational thought.

Posted by: JoeCouchPotato | November 4, 2010 1:10 PM | Report abuse

JoeCouchPotato:

It is MORE dangerous to allow judges to become unelected legislators, who "substitute [their] own pleasure to the constitutional intentions ..." Maybe when they legislate from the bench against something YOU like, you will finally understand.

Posted by: JakeD2 | November 4, 2010 1:16 PM | Report abuse

not even a nice try jesgonzo. The similarity between the two is obvious. In both cases the judges sought to thwart the will of the people and were called to account for it.
Let's look at the magnatude of the cases Ms Bird reversed: each on a single murder case wherein she overturned the death penalty. Of course it took several such decisions for the citizens to recognize that their will was being denied.

it just took one very important decision for the people in Iowa to reach the same conclusion as the people in Ca reached. The judges were held accountable. As they should.

and I don't see that the courts in America have performed flawlessly over the past two centuries. In fact several milestone decisions were ultimately reversed. I don't believe that a lack of accountability has resulted in judicial perfection at all. In fact now that the left seeks to use the courts as tool to accomplish what they can't at the ballot box the lack of accountability at the federal level is a major issue for many.

Folks like to imagine that they understand the motivations of others. It is a popular parlor game. it generally goes like this: "They did this to send a message to others..." yeah, right. The people of Iowa threw these bums out because they could.

Posted by: skipsailing28 | November 4, 2010 1:25 PM | Report abuse

54465446:

Maybe when they legislate from the bench against something YOU like, you will finally understand too.

Posted by: JakeD2 | November 4, 2010 1:25 PM | Report abuse

Jake:

That's exactly the point is it not? How can we have a judiciary that never rules against something one party or another holds sacred?

Would you prefer a revolving door judiciary, and try to get qualified people to take that job?

Posted by: 54465446 | November 4, 2010 1:42 PM | Report abuse

I did not say I wanted federal judges elected (not a bad idea though). I do want to see federal judges impeached for legislating from the bench.

Posted by: JakeD2 | November 4, 2010 1:47 PM | Report abuse

"I did not say I wanted federal judges elected (not a bad idea though). I do want to see federal judges impeached for legislating from the bench."

You mean the way the Radical Rightwing Supreme Court just legislated from the bench in Citizens United?

Posted by: wbgonne | November 4, 2010 1:56 PM | Report abuse

jake wrote:

"I did not say I wanted federal judges elected (not a bad idea though). I do want to see federal judges impeached for legislating from the bench"

Who will be the deciding body for such a thing. Isn't that process already in place?

Posted by: 54465446 | November 4, 2010 2:15 PM | Report abuse

Do we give special consideration to a class of people that practice peculiar and unnatural forms of sexual acts that are performed strictly for pleasurable gratification?

No, but we could treat them as equals. And homosexuality is natural. Do you think anyone would put themselves through the anguish and confusion and intolerance by choice.

Posted by: cao091402 | November 4, 2010 2:15 PM | Report abuse

54465446:

As you well know, the House of Representatives vote on articles of impeachment and the Senate votes on conviction. Part one of that plan was put into place on Tuesday ; )

cao091402:

Plenty of people are IN JAIL today because they CHOSE to put themselves through the anguish and confusion and "intolerance" of other things society deems to be wrong.

Posted by: JakeD2 | November 4, 2010 2:57 PM | Report abuse

jake:

I was actually speaking in metaphorical terms, as in who will decide what constitutes legislating from the bench?

Posted by: 54465446 | November 4, 2010 3:01 PM | Report abuse

I believe that it was REPRESENTATIVE Gerald Ford who rightly put it: "The House defines what an impeachable offense is."

Posted by: JakeD2 | November 4, 2010 3:38 PM | Report abuse

If Clarence Thomas is such an originalist he should say that Loving vs. Va was wrongly decided. Then he would have to admit to being intelectually honest.

That would mean Clarence and Ginny have engaged in, as Jake calls it deviant sexual behavior.

Posted by: shrink2 Speaking of miscegenation and Clarence Thomas, I wonder if he and his tea bagging wife Virginia have pillow talk on the merits of the judicial activism involved in the 1967 SCOTUS case, Loving v. Virginia.

Posted by: MerrillFrank | November 4, 2010 3:50 PM | Report abuse

This is one of the most intellectually dishonest and just plain stupid columns I've ever seen here, or anywhere. Not too much more to be said about it.

Anyone who asserts this: "Banning same-sex marriage isn't rooted in the Constitution -- indeed it's a straightforward violation of the equal protection clause."

is so far down the path of intellectual dishonesty as to be beyond hope. Sorry to state it in such an absolute and peremptory way, but that's the fact of the matter. What you say here is simply preposterous and dishonest, Mr. Serwer. I think you actually know that. You are engaged in pure propaganda, as Bernie would say. You aren't doing anything related to informing or clarifying, etc.

Posted by: quarterback1 | November 4, 2010 4:10 PM | Report abuse

MerrillFrank:

I would love to debate what is, and is not, "deviant sexual behavior" just as soon as you let me know if you saw the fact checker about Sarah Palin NOT charging victims for rape (another "deviant sexual behavior") kits?

http://www.factcheck.org/2008/10/mccain-palin-and-rape-kits/

Posted by: JakeD2 | November 4, 2010 4:13 PM | Report abuse

The truth is somewhat murky, nonetheless if she is such a Mama Grizzly the issue might concern her or as Sharon Angle said regarding rape victims "when you have lemons make lemonaide"

The old NYC TV Weatherman Tex Antione got fired for less.

http://www.politifact.com/truth-o-meter/article/2008/sep/22/palin-rape-kit-controversy/

Posted by: MerrillFrank | November 4, 2010 5:07 PM | Report abuse

I've seen that other link too. My question to you, however, can be answered with a simple "yes" or "no": have you seen the following fact checker about Sarah Palin NOT charging victims for rape (another "deviant sexual behavior") kits?

http://www.factcheck.org/2008/10/mccain-palin-and-rape-kits/

Posted by: JakeD2 | November 4, 2010 5:11 PM | Report abuse

Homosexuality is a natural human variation that crosses racial boundries with known statistical frequency, and according to the scientists who determine such matters that are universally recognized as experts tha American association of psychiatrists homosexuality and bisexuality are normal. The discussion is over no decisive or disorders are involved by definition. The only reason to deny homosexuals and bisexuals the same treatment, that is rights and responsibilities, of heterosexuals is based upon religion or irrational (as in antiscientific) basis. These are arbitrary reasons based purely upon impermissible reasons. Science has spoken and religion can't change that since the USA is not permitted to officially and directly use religion against anyone. The courts will overturn anti gay laws because they lack a rational basis which is the lowest standard for any law to be constitutional. Religous standards are simply irrelevant.

Posted by: Jack74 | November 4, 2010 9:42 PM | Report abuse

A propensity toward criminal behavior is also a natural human variation that crosses racial boundries with known statistical frequency, and the scientists who determine such matters say that's normal too. Do you at least concede the potential for a slippery slope?

Posted by: clawrence12 | November 4, 2010 10:37 PM | Report abuse

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