Hijacking the Courts

There's a crisis in America. It is a crisis that undermines our constitutional order. It is part of a movement that flies in the face of our Founding Fathers' wisdom. It is happening with alarming regularly. And, worse, it goes relatively unnoticed even though the American people -- across ideological boundaries -- should be up in arms.

This is a crisis that has long murmurings in our political culture, but one that the LGBT rights movement has brought to a nasty and shameful head. The crisis: a threat to judicial independence, an erosion of judicial temperament, and the utter disregard for the integrity of the courts. Most often this threat comes from single-issue interests groups that have no aim other than to exact political vengeance upon courageous stewards of justice.

This unsavory and dangerous trend is not unique to any one part of the country. Interest groups throughout the nation are attempting to hijack the integrity of courts.

Look to Iowa. There, social conservatives, lead by Bob Vander Plaats, are leading the fight to oust justices of the Iowa Supreme Court who unanimously found a right for same-sex couples to marry in 2009. Vander Plaats thinks that marriage equality is the legal and moral equivalent of slavery. His outrageous legal analogy is beyond the pale of any reasonable discourse. Surely, he's a lone wolf in the fight against judicial independence?

Not a chance.

He's got the backing of Rick Santorum and Louisiana Governor Bobby Jindal. For men who espouse principles of federalism and the virtue of local control, they sure have no problem injecting themselves into other states' judicial retention decisions provided it gives them media exposure and the chance to bash sexual minorities and the courts to boot. Their unbridled hypocrisy is as puzzling as it disturbing.

I concede that this type of undue judicial influence is not wholly unique to the right. Indeed, labor groups failed in a similar attempt to remove a Wisconsin Supreme Court justice that they felt was anti-labor. That's equally unpalatable. However, it is particularly egregious to advocate the removal of a judge for his or her treatment of a class of people.

It isn't just outside groups that are a source of concern. Nominees for elected judgeships are pandering to their ideological base by slandering the very minority groups the courts were intended to protect. I give you Roy Moore. You may remember him as the former Alabama Supreme Court Chief Justice who was removed from his position for defying a court order to remove the Ten Commandments from the Alabama Supreme Court.

He's back and spewing pure bigotry as campaigns to return to his old position as Chief Justice.

The former Chief Justice's new campaign stump speech is gushing with his disdain for sexual minorities. Recently Moore said, "We can't keep disparaging our military and promoting things like same-sex marriage, L-G-B-T. To hear the President of the United States say that we are promoting L-G-B-T. Let's think about what that is: lesbian, gay, bisexual and transgendered right... Same-sex marriage will be the ultimate destruction of our country because it destroys the very foundation upon which this nation is based."

Could Roy Moore ever say with a straight face that he could ever hear a case arising from something related to sexual orientation impartially and without bias? Or does Mr. Moore think, like Justice Scalia, that all gay rights cases are "easy ones?" Regardless of his judicial philosophy, it is evident from Mr. Moore's behavior that he lacks the basic temperament to sit on any court, much less at the head of the Alabama Supreme Court.

The attack on judicial independence isn't only in the Deep South or the Midwestern Plains, nor is it only LGBT issues that raise the ire of conservatives. Take New Jersey, for example, where Governor Chris Christie refused to back sitting Supreme Court justices for re-nomination, breaking with tradition, simply so that he could appoint justices of his liking. A few thousand miles south in Florida, the Republican Party is formally backing retention challenges to Florida Supreme Court justices. Why? Not because they've proven themselves unfit or incompetent in their work, but because they don't like the justices' decisions.

Judges are supposed to be the guardians of our rights and liberties. We call on judges to avoid even the appearance of pre-judgment or the hint of impropriety because to whom such lofty and vital powers are entrusted, much self-discipline and restraint is expected. But as we subject judges to the political process we move further and further from that ideal.

Attacking judicial independence is improper whether it comes from the left or the right. But in this age where these attacks are emanating largely and most prominently from the political right, I particularly wonder why conservatives' traditional rallying points are now muted.

Where are the belabored and lofty cries for strict adherence to the guiding principles of our Founding Fathers? Where are the demands that we look to the Constitution's drafters and their writings, like the Federalist Papers, to renew the lifeblood of our American system of governance? Or, is the wisdom of our forebears expendable when we're talking about certain groups we don't like?