Wednesday, February 16, 2005

"Unelected Judges"

Anyone who pays attention to politics will have heard the phrase "unelected judges" being used more often lately. My most recent encounter was someone who was complaining about gay rights. This person apparently disagreed with the decisions by the courts in Vermont, Massachusetts, and, perhaps, New York and Washington state.

I wonder if people who use this phrase really understand what they are saying and/or implying, particularly when it comes to gay rights. For instance, the judges who made these rulings are state judges, not federal ones. The difference is important. Federal judges do tend to be appointed by our legal representatives in Congress - that's how our Republic works. Federal judges do not undergo further review once they are appointed, but they can be impeached or Congress can pass laws that overturn a judge's decision if they disagree with that decision. Again, that's how our form of democracy is meant to operate.

However, state judges play a different role in our republic. States themselves set the rules for how their judges attain their positions. Those rules are laid out in the state constitutions. In most states in this country, state judges are elected. In most of the states where they are not elected, the judges undergo a periodic review system that incorporates some semblance of democratic process. In other words, the people who reside in states where gay discrimination in marriage has been ruled illegal can decide not to re-elect the judges who participated in those rulings. Thus far, no such outcry exists in those states; at least, not one that is large enough to overturn those decisions and therefore, democracy is working.

Of course, this cuts both ways, democracy is also working in the states that pass constitutional amendments that codify marriage laws that discriminate against gay couples. And the so-called Defense of Marriage Act passed by Congress allows those states to practice their discriminatory laws regardless of what is ruled legal in states that disagree. This is also democracy in action. Democracy is not a process that rubber stamps the perceived righteous positions of each individual, but rather it is a long, drawn out process that demands compromise and frequently incurs setbacks before moving slowly forward towards generally positive change. Much as I abhor the amendments in Michigan, Montana, and elsewhere, these are only part of the process for which I try to keep my spirits up by taking a longer view of the world.

And that's where I differ from the people who use the phrase "unelected judges" or even "activist judges" (the latter being so devoid of any real meaning one wonders what point the people who utter it are trying to make...being a judge means making decisions between 2 or more parties who matter what decision is made, the judge is being an is the nature of the job). I'm not looking for a quick fix of rhetoric to fire up my backers or satiate my whims or to promote my righteous views. Rather, I'm looking for the long view, the one that takes time, is full of highs and lows, and the one that is often very ugly at times - even some times violent.

In other words, I respect and honor our democratic republic and the Constitution on which it is founded. I doubt very much that those who expose their disdain for this process by using phrases such as "unelected judges" either understand this process nor do they respect it. Perhaps anyone who utters such phrases should be required to take or re-take a course on government. And if that person is a member of government, perhaps that person should be removed by her constituents for she clearly does not understand the job to which she has been elected.

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