by Mark Moore
Disgraced Attorney General Dustin McDaniel has called for Arkansas Supreme Court Justices to be appointed rather than elected at least initially. He made the suggestion in response to questions about a law suit by a group seeking to overturn the Arkansas Constitutional Amendment defining marriage as the union of one man and one woman. It was voted into the constitution by 70% of the voters less than a decade ago. Nevertheless, the amendment was thrown out at the circuit level by “Judge” Chris Piazza in a one-sided ruling which made a series of bizarre claims. The man actually ruled that the Arkansas Constitution violated itself! But it does not matter how “Captain Queeg” Piazza goes in his rulings, the Democrat-Gazette supports his error, as they have so many other errors.
The attorneys for the plaintiffs have asked any Arkansas Supreme Court Justice who is planning to run for re-election to recuse themselves from the case! The reason they give is that the “political pressure” of having to answer to the voters might cause them to uphold the Arkansas Constitutional Amendment as constitutional rather than overturn it as they wish. OK, well actually they say the pressure would come from “the legislature” but if they mean that then why did they specify the wanted recusals from those who contemplate running for re-election? The pressure in elections is not from the legislature, its from voters!
Abraham Lincoln had his flaws, but he had it right when he said that “We the people are the rightful masters of both Congress and the Courts, not to overthrow the Constitution but to overthrow the men who would pervert the constitution.” The Founders had it right too when they said in the Declaration of Independence that government derives all just powers “from the consent of the governed.” The idea that judges cannot rule fairly if they ever fear answering to the ones whose consent is the basis for all of their just powers is absurd, elitist, offensive, and extremely dangerous.
I am not objecting to the doctrine of Judicial Review. That is how judicial power is supposed to work- the courts protecting citizens from an over-zealous Executive branch. Compare that to what the courts have spent too much effort doing lately- imposing elitist views on the citizens against their will on the flimsiest of legal grounds. The former activity serves the rights of the citizens, the latter denies them the very fundamental right of ordering their communities as they see fit and instead transfers that power to the courts themselves.
I am not against the courts. We need the courts to protect us against persecution or against an encroaching police state. We don’t want the courts to go away. Instead, I wish the courts would quit blowing their credibility and goodwill among the populace by doing things like trying to impose formal recognition of homosexual marriage on the people, or purging all expression of Christianity from the public square, or ordering the legislature to spend a certain amount on education. Doing those things costs the court respect and goodwill from the people.
The politics cannot be totally removed from court decisions on government issues. People who claim they can be are simply trying to impose their own politics on the nation against the will of the populace. When courts make idiotic and oppressive rulings, they lose credibility in the eyes of the people. That credibility is basically political capital which comes from the belief that they are fair and impartial. Someday, the courts may need that political capital to help protect us from an executive that goes too far.
A much better case for a judge recusing himself would have been if Judge Piazza had recused himself from ruling on the marriage amendment case in the first place. This is because he has a history of throwing out the law and imposing the homosexual agenda on Arkansans. He was the judge who originally threw out the state’s law banning homosexuals from using the power of the state to gain access to other people’s children via adoption. I deconstructed his ruling here, with more on it here.
An even better case for judges recusing themselves would be for federal judges to recuse themselves from all cases in which the issue is that some state and the federal government have a disagreement about the limits of the federal government’s power. After all, federal judges are federal employees. Their employers are a party to the case! Maybe such cases ought to be heard by a panel of judges from other states not connected to the case.
Actually, I think that last one is a good idea, that’s why its in my book Localism, a Philosophy of Government. But I also think that the idea that judges should recuse themselves because they can’t be “fair” if they might have to face the voters someday is an offensive, elitist, and anti-democratic idea. The government has already taken on a life if its own separate from the desires of the people it was created to serve, and this would only make it worse.
If anything, we need more public awareness of judicial candidates and their rulings. Under current Arkansas law judicial candidates can’t really talk about their approach to the law, or whether they agreed or disagreed with any past case ruling. What this means is that even though citizens get a choice, its not an informed choice. It makes the choice next to meaningless, which is still better than no choice at all. Even John Brummit, who is paid to do stuff like this for a living, admitted that he only endorsed Courtney Henry for Justice because she married into a prominent Fayetteville family (from which she divorced immediately after the election). If even a paid pundit does not have enough info to make a rational choice, then the rules need to be changed so that more information is available.
We have to live under the rulings of these courts. Using appointments makes some sense on the federal level, where judges can more easily show restraint and always have the option of saying “this is a matter for the states to decide”, but the buck stops at the state courts. To make them above the will of the people is to turn them into despots. Regnant Populus! Let the people decide, because in the long run no government has any legitimacy if it is too far afield from those it seeks to govern.