Judicial Hypocrisy

I have to admit, during our stop and go, weekend-long brawl over judicial philosophy, HP did catch Myke on an ideological inconsistency. For reasons we’ve already gone over a thousand times, Myke and I are both for the federal legalization of gay marriage. We see it as a civil right – any two people who love each other should be able to profess their love in a federal contract and gain the “privileges” that come with it. Especially since it does no harm to anyone else.

But HP said, “well then incest between two consenting adults should be made legal too.”

“Nah man, that’s just nasty,” Myke said in his Southern drawl. But what he didn’t get is that – even though they’d never admit it – most people against gay marriage also think that romance between two people of the same sex (and especially two men) is “just nasty.”

HP’s right. Incest between two consenting adults really doesn’t hurt anyone else so long as they don’t have kids. But as a society we’ve decided it’s still not ok. We’ve decided it goes against our morals. (and personally, I have to agree with Myke, shit seems nasty). On gay marriage though, we’re more divided. Much of the country is passionately for it and just as many are passionately against it. So what do we do as a nation to work out our differences?

I think I’ve come to agree with HP – we either need a one time vote by the entire country or we need to leave it up to the states to decide until it’s more clear if, as a nation, we agree that marriage should be more encompassing. It’s worth pointing out though that both HP and Myke’s views on gay marriage have their inconsistencies: Myke thinks marriage should be defined by love, but excludes incest because “that’s nasty,” while HP says the purpose of marriage is makin’ babies, but he’s willing to grant it to two 70-year-olds who never could.

While on our ride down to TJ, one of the excellent podcasts I listened to was an NewsHour with Jim Lehrer show that went over, step by step, the deliberations on John Roberts’ first supreme court case. At issue is whether or not the federal government has a right to step in and prevent Oregonian doctors from administering assisted-suicide medication to their patients after Oregon voters passed a right-to-die measure by ballot initiative in 1994, then again by large majority in 1997. Just like Roe V. Wade, the artichoke heart of the case is whether or not it’s up to the state or federal government to codify our collective moral code. Like William F. Buckley Jr says:

if the Supreme Court rules that Washington does not have the authority under existing legislation to interfere with the judgment of the voters of individual states, will this precipitate similar action in other states? California, which is deliberating assisted suicide, is watching keenly the Supreme Court deliberations.

The irony is that most people who are pro-right-to-die (like myself) are also pro-choice. So on the one hand, we are arguing that it should be left to the state to decide if doctors can assist in end-of-life suicides, yet on the other hand we want the federal government to ensure the right to an abortion, fully aware that some states (“Welcome to Alabama, set your clocks back 20 years”) would overturn the law forcing poor young women to travel to other states to perform the operation. The word for that is hypocrisy.

Does anyone like Harriet Miers? Poor lady. Democrats say she’s a crony. Republicans say she’s a moderate. And the authors of this weblog, shallow souls, say she’s ugly. Every day it seems to be getting worse. Whoever does the dot matrix sketches for the Wall Street Journal must’ve been feeling some sympathy when he or she shaved at least 15 years from Miers’ portrait on Friday’s front page article about her work on a 2000 case arguing that Dick Cheney was not a Texan.

Sounds obscure, I know, which is probably why we never heard about it, but while the supreme court was deciding our next president, a federal judge in Dallas listened to the arguments of Jones v. Bush where Ms. Miers (I love how the WSJ still use Miss, Ms., Mrs., and Mr.) convinced the Reagan-appointed judge to take a “broad and inclusive” reading of the constitution. Specifically, the 12th amendment, which prohibits a president and vice-president from the same state. (both Bush and Cheney were living in Texas, had Texas drivers licenses, worked in Texas, and had cars registered in Texas).

Now, despite my disdain for monkeyboy, I wholeheartedly agree with the Miers team that it no longer matters if a president and vice-president come from the same state. Remember, this is America where we only vote for rich people with houses all over the country (Cheney had four houses when he was asked to run as VP) so it’s inevitable that two rich people are gonna have some real estate overlap. But the important part here is that Miers aggressively argued that the constitution needs to be read within the context of contemporary times. Which is something conservatives, so little imagination, don’t want to hear.

White House spokeswoman Dana Perino said on Thursday: “Arguments an attorney makes on behalf of a client do not necessarily reflect how one would rule as a judge.” True, but will Miers remember that she’s no longer arguing on behalf of client Bush when on the Supreme Court? That’s what skeptics on the left are wondering. On the right, they want to know if she’ll revert to “broad and inclusive” readings of the constitution after her jefe leaves the White House.

What all of this really means to me is that nearly 2500 years after Western democracy got started, we’re still fine-tuning and tweaking things. “Judicial activism” has taken on a negative connotation, yet it was judicial activism which pushed through many of the 1960’s civil rights reforms that would’ve never had a chance in the legislative process. 40 years later, as a country, we’re thankful that our supreme court stuck its neck out. Isn’t it at least plausible that we would feel the same way about the legalization of gay marriage 40 years from now?

Yet on the other hand. Judicial activism is inherently anti-democratic. Honestly, how much influence are you going to have on whether Miers gets confirmed or not? Yet her one vote could make abortion illegal in your state. A couple weeks ago Elena Mary sent me an article from the Economist about a federal judge in Argentina who was being very active:

Roberto Gallardo, a controversial local judge, has once again clashed with local officials by ruling that they must subsidise some of the city’s poorest families. Mr Gallardo ordered the city to pay around $70 a month for each child of the city’s cartoneros—the scavengers who recycle the city’s rubbish for a living—as long as the child attends school rather than work alongside his parents. Some legal experts accused Mr Gallardo of trying to dictate social policy, which should be left to elected leaders. But others argued that the judge was merely forcing the city to obey its constitution, which guarantees “food, housing, work, education, clothing, culture and environment” to all inhabitants.

I agree with all of that policy, but do we really want appointed officials making that sort of policy instead of democratic voters? That sounds a little bit like Fascism to me. I eagerly await the input of our advisory legal counsel: abo and bobbo.

Wow … it’s 2:12 and I could swear we just had an earthquake … anyone else feel that?