Tis Better To Remain Silent, Or, Bush Again Removes All Doubt

President Bush’s speech in support of the federal marriage amendment was the sort of babbling nonsense we all expect from our mush minded president. You can get the overall criticisms here and, here. What I am going to criticize is his continuing reliance on the activist judges canard:

Today, 45 of the 50 states have either a state constitutional amendment or statute defining marriage as a union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage. The people have spoken. Unfortunately, this consensus is being undermined by activist judges and local officials who have struck down state laws protecting marriage and made an aggressive attempt to redefine marriage.

Since 2004, state courts in Washington and California and Maryland and New York have ruled against marriage laws. Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books.

First, the rest of the story:

The cases in Washington, California, Maryland and New York are all lower court decisions. The Nebraska case, Citizens for Equal Protection v. Bruning, is the only case in which a state marriage amendment has been overturned, and that case is under appeal. The court invalidated the amendment because it was drafted so broadly that it would have prohibited every type of same-sex relationship, not just same-sex marriage.

Not one of these states has been forced to recognize same-sex marriage. Why enact a constitutional amendment to address a problem that does not exist?

Now on to the phrase at issue. Andrew Cohen nicely summarizes what ‘activist judges’ really means:

Of all the lies and half-truths that spring from the mouths of politicians, the pernicious and pervasive use of the phrase “activist judges” to demean well-intentioned jurists surely is one of the worst. Even the late, great Supreme Court Chief Justice William Rehnquist hated the phrase.

Everytime a judge makes a decision, any decision whether you like it or not, that judge is “acting.” Even when the Supreme Court decides not to review a case it is “acting.” To judge– to choose between competing arguments– is to act. Every judge every day, therefore, is an “activist judge” in the honest meaning of the word and, therefore, no judges are the sort of creepy “activist judges” that President Bush and his cronies in Congress want you to be afraid of. Anytime you hear someone call a judge an “activist judge” all it means is that the person doing the calling didn’t like the decision the judge just rendered. Nothing more. Nothing less.

Ed Brayton explains Bush’s hypocrisy:

This is nonsense. Only one state, Massachusetts, has had a court rule that gay marriage was required by their state constitution. And in that state, the legislature declined to attempt to overturn that court ruling and public sentiment in that state is against doing so. And of course, the phrase “activist judges” is utterly meaningless in this context.

The people of Oregon spoke, twice, in supporting assisted suicide; that did not stop Bush from ordering the DOJ to run to the courts to get those “activist judges” to strike down the “broad consensus” even though “the people have spoken.” The people of California had likewise spoken and passed their medical marijuana law; Bush immediately ran to court to get “unelected judges” to overturn the “will of the people” on that one too. This rhetoric is not only empty, it’s absolutely hypocritical. Pure demagoguery.

Federal Judge John Jones, the Republican judge who ruled that the Dover Pennsylvania school board could not require the teaching of intelligent design offers a judge’s perspective:

To be blunt, I think that many people need a civics lesson about the judicial system, because we are beginning to cross the line between fair comment and criticism of judges’ work into something which is much darker and debilitating. At its worst, the failure by some segments of the media and the public to understand the proper function of an independent judiciary leads to results which are not only frightening, but are at times tragic.

All of you remember the murders of my colleague Judge Joan Lefkow’s husband and mother last February, shot by a disgruntled litigant whose case had been dismissed by the judge. The killer was lying in wait for Judge Lefkow and when he discovered her loved ones first, he killed them instead. We cannot know if, in fact, the killer of Judge Lefkow’s family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was. As a result, as a direct result of the Lefkow murders, Congress has appropriated funds for security systems for the homes of United States judges. That is a very sad statement about our times.

And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore’s in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country. I’m sure you’ll agree that that’s a sad state of affairs and an alarming state of affairs.

When Bush invoked the activist judiciary nonsense, he not only contributed to this sad state of affairs, but demonstrated his own ignorance and hypocricy. George Bush: A decider? Maybe. A distractor? Probably. A leader? Definitely not. At least definitely not in the correct direction.

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