A week ago, I explained why Roanoke Times columnist Ed Lynch’s slap-dash dismissal of Sen. Creigh Deeds was wrong on its face. Today, Lynch has yet another column, nearly as foolish as last week’s. It’s worth going into a few of the weaker points.
In “It’s time to elect judges in Virginia,” Lynch argues that Virginia’s all-appointed bench needs to be modified to require that judges standard for election, either periodically or just once, in the style of the Missouri Plan. This is a matter on which intelligent minds may disagree, and Lynch and I do disagree about this, but that’s not what Lynch has wrong.
The author argues that the need to switch is a result of judicial activism, although he doesn’t use that phrase. As evidence of this, he claims that “we faced the appalling prospect of a majority of the U.S. Supreme Court (five people) striking down the Pledge of Allegiance.” We did? There’s a few problems with this. The first is that the court can’t “strike down” the Pledge of Allegiance — it’s not a law. It’s a thing that some people say sometimes. What the court was asked to consider in Elk Grove United School District v. Newdow was whether Newdow’s daughter may be compelled to recite the pledge, including the phrase “under God.” Had Newdow won, public schools would have needed to excise the phrase in question from their rendition of the pledge, restoring it to its original form, before Congress modified it to add “under God” in a fit of McCarthy-era anti-communist paranoia. The court, of course, held that Newdow lacked standing, and thus dodged the bullet. But at no time was there any danger of the court “striking down the Pledge of Allegiance.”
Immediately after this sentence comes another misleading statement. “Just last month, a state judge in Louisiana struck down a ballot initiative that had received the support of nearly 80 percent of the people of Louisiana.” Lynch conveniently leaves out the details here. The initiative was a constitutional amendment, which read:
Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.
This accomplished two things: it banned gay marriage and civil unions, which any casual observer of this year’s elections knows are two wholly separate issues. The problem is that the Louisiana constitution requires that each ballot initiative be about just one issue — it’s unconstitutional to mash two issues together into a single initiative. So a judge struck down the amendment, because of its unconstitutionality. It’s quite similar to the California court ruling a couple of months ago that held that San Francisco Mayor Gavin Newstrom acted in violation of the constitution in permitting gay marriage, which wasn’t a ruling whose effect that I favored, but which was the only sound legal decision to which a court could have come. Again, Lynch presents this in a single sentence as if some crazy judge is unilaterally deciding to ignore the will of the people, based on some arbitrary personal standards, and that obviously isn’t the case.
Describing the Louisiana case as a “travesty,” he claims that “there is…no such safeguard that it will not happen here,” referring to judicial elections. Which is a strange argument for him to make, since judges are elected in Louisiana. If elections didn’t stop the ruling in question in Louisiana, why would it be any different in Virginia?
My favorite bit, though, is Lynch’s perpetuation of that ridiculous conservative myth: those days of yore when judges didn’t overturn laws and ignored the constitution, except when they paid attention to the constitution, but even then they were strict constructionists. (Or something like that.) Writes Lynch:
There was a time in this country when the Common Law tradition prevailed, and when judges saw themselves as the interpreters, not the creators, of law. (For the moment, most judges in Virginia still see themselves this way.) In recent decades, however, judges around the country have inserted their own political views and political agendas into their judicial decisions. By doing so, these judges have made themselves into legislators.
I’m trying to figure out when that would have been. As best I can figure, it’d be prior to that bugaboo of Constitutional Law 101 students, Marbury v. Madison. To quote from the obligatory paper that I once wrote about it for a class:
In 1801, President John Adams appointed four men to five-year commissions as justices of the peace of the District of Columbia, but left office before the commissions could be delivered to them by his secretary of state, John Marshall. Adams’ successor, President Thomas Jefferson, refused to deliver the commissions. These men — William Marbury, Dennis Ramsay, Robert Townsend Hoe and William Harper — sought to have President Jefferson’s secretary of state, James Madison, compelled to turn over the commission by the Supreme Court, in the form of a writ of mandamus.
[…]
[Chief Justice John] Marshall’s ruling is perhaps best summed up in the following sentence from the ruling: “A legislative act contrary to the Constitution is not law.”
That ruling came down in 1803, 13 years after the Supreme Court was created, and would have been the end of “when judges saw themselves as the interpreters, not the creators, of law,” to use Ed Lynch’s words. It’s worth noting that the court didn’t really do anything for the bulk of those 13 years. For the whole of the 1890s, the Supreme Court had virtually nothing to do, couldn’t retain justices, had no chambers, and no employees. I figure that this golden age of which Lynch writes lasted for 3, may 5 years, tops.
Ah, those were the days.
Steve Minor, at SW Virginia Law Blog, weighs in on Lynch’s column, too, writing:
I see that Ed Lynch has declared in this column in the Roanoke Times that judges should be elected in Virginia. He says it would “prevent judges from ignoring us without penalty.”
That’s absolutely wrong. The courts serve more than the voters. You’ll never convince me that judicial competence and independence is enhanced by making judges chase votes and, even worse, chase money for their campaigns. The quality of the federal judiciary is certainly none the worse for NOT being the product of local elections.
The worst part is that Lynch’s position could be defended (I recommend “Judicial Recruitment and Selection,” by Elliot E. Slotnick (Justice System Journal, vol. 13 no. 1), which presents both sides of the argument), but Lynch is either unable or unwilling to do so in an honest fashion.
I can hardly wait for next week’s column.