Yet another Victory for Judicial "Activism"

Ever since its' ascendancy into political prominence in the 1980's, the Christian Right has placed foremost emphasis on selecting judges that conform to their ideological litmus test. James Dobson, Tony Perkins, Pat Robertson and the rest of the evangelical ilk have stressed the need for Republicans that appoint judges who are "strict constructionists" who "interpret, not create the law" and most importantly, judges who do not "legislate from the bench."

Basically, as these innocuous terms attempt to obfuscate, Robinson and his cadre have tried to mete out any prospective nominee who is not fiercely pro-life, anti-gay marriage and pro-corporate welfare. The ideal judge, in their minds, would not only possess all of the aforementioned positions on social issues, but also would defer to state legislatures, voters and the executive branch on matters of creating law. In their warped perception, only judges who give near carte blanche to state legislatures in the creation, and implementation of laws, are permissible. Thus arises the murky Christian right buzz phrases like , "interpret the law, not create social policy with law" and most memorably, "do not legislate from the bench".

By in large, this movement to alter the requisite criterion for electing federal judges, most importantly, the Supreme Court, has been largely successful in diffusing out all judges save the arch-conservatives. As James Toobin laments in his insightful new novel "The Nine", when Robert Bork was foisted upon the Senate for confirmation, his confirmation hinged on whether not he was "pro Roe v. Wade" enough. Fast forward 20 years, and a judge like Roberts or Alito's confirmation is contingent on being "anti-Roe v. Wade" enough. In essence, a total paradigm shift on the issue of abortion has occurred in a mere two decades.

Ignoring the inherent hypocrisy of the conservatives preferred method for judicial selections (Clarence Thomas and Antonin Scalia, deities to the far-right, are annually the leaders in overturning new laws, and eschewing past precedents, as reported last month by the Times), the systematic neutering and devaluing of the judicial branch of government has noticeably negative affects.

For one, the fundamental role of the judiciary, to combat unfair or unproductive legislation at the hands of renegade state legislatures, is rendered obsolete if the bench is dominated by the "strict constructionists" More over, fundamental minority rights, which the court assiduously endeavored to protect in landmark cases like Johnson v. Texas, or Brown v. Board of Education, are stunted greatly when judges defer to state legislatures or the "Framers" in interpreting the Constitution. In refusing to intervene in cases, provided the majority voted for a given law in such cases, irrespective of the merits of the law itself, judges commit an apostasy of justice, and help to create the "tyranny of the majority" that John Stuart Mill warned of two centuries ago.

These two negative consequences merged together to rear their negative head in the case of Genarlow Wilson, an African-American teenager in Georgia. Wilson, the prototypical All-American boy (except his race.....let's not operate under the false assumption that this country is color blind, particularly in the south) in the sense that he led his football team to the state championship, and he also succeeded in school to the point that he was recruited by Ivy League schools.

And then, given that background, it's only natural Genarlow would be incarcerated before he could even legally vote, right?! Only in America, folks. And what crime did this bright young man commit to earn a trip to the big house? One of the most indefensible, disgusting acts known to modern man: receiving consensual oral sex from a girl two years his junior (he was 17, she was 15 at the time) I know, he should be lynched, right?! WHAT IS THE WORLD COMING TO? An all-star athlete the recipient of physical pleasure? That never happened back in my day son! The Apocalypse truly is upon us, if miscreants like Genarlow can rome free amongst us god-fearing citizens.

All sarcasm aside, believe it or not, Wilson served two years in prison for this totally innocuous, quite enjoyable act. I could understand if he had given the girl oral sex, but he was on the receiving end. (After all, if I become president, any woman who's nether regions smells like the drive thru window at Long John Silver's will be immediately dispatched to a "re-education camp", as the Chinese so aptly deem it)

Finally, after years of court hearings and a protracted battle over Genarlow's fate, in a bit of much needed judicial "activism", he was freed on the grounds that his 10 year prison sentence was cruel and unusual punishment by the Georgia Supreme Court today. Without this intervention, Genarlow, with his appeals basically exhausted, would be thus forced to rot in prison while his immense talents go to waste. In this case, and in many others that preceded it, the judicial branch has served the vital function of exonerating persecuting minorities from the oppressive nature of some powerful Americans.

In essence, The most important principle of judicial activism, is its implicit acknowledgement to protect those who are unfavored in our society, if need be, through vitiation of unjust legislation, even if the majority of people are in favor of said law. Cover your ears arm-chair patriots: We Americans do not exactly radiate nor possess a demonstrable amount of political interest and knowledge.

Before the "This is Ouuuuuuuuuuuuuur Country" crowd drowns me out with caterwauls and questions my patriotism, chew on this: In a recent NPR poll of young women between the ages of 10-17, those selected answered, by a margin of 5 to 1, that they would rather be Britney Spears' personal assistant than a CEO of a major corporation, or a U.S. Senator.

True, some are very passionate about public policy and the minutiae of the government, but that politically efficacious group does not nearly constitute a majority. Given that, why should we allow those same individuals to make critical decisions concerning the welfare of our society?

I'm not calling for a fascist regime, in which only those citizens who bear a striking resemblance to either Brad Pitt or Angelina Jolie would have the right to vote. Rather, I'm advocating a political structure where there really are checks and balances, and in addition, one branch of government (the judiciary) is not the victim of subterfuge from an injurious, uninformed electorate. Is that so much to ask? After all, IBM wouldn't hire someone to work at their plant if they didn't possess the requisite skills to make the best decisions while on the job. Why can't we apply the same axiom to voting, and more broadly, political participation as a whole?

The Christian Right has catalyzed the public with it's message on the judiciary by basing their rhetoric on populist grounds. Essentially, they appeal to the selfish nature in all of us (myself certainly included) by saying "Why do these 9 robed dinosaurs get to decide that it's legal to kill a baby? They aren't elected, they are immune to the will of the people!. Leave it up to the state legislatures, those officials are accountable to us ( this is a prominent fallacy amongst many citizens)"

Sadly, manipulating the public with this sort of incendiary rhetoric has been a largely successful enterprise for the conservatives. What results are travesty's of justice, both to the Constitution, which mandates an independent judiciary, also to a normal person. Case in point: Genarlow Wilson.

In closing on a lighter note, courtesy of dumblaws.com, listed below is some recent state laws ratified by the "omniscient" state legislatures. Trust me, more of this is what will occur if you install judges who refuse to intervene against the legislative and executive branches.

Alabama- Incestuous Marriages are Legal
Georgia-All sex toys are banned
Mississippi- If one is a parent to two illegitimate children, you go to jail for one month.


And the list goes on and on. Thankfully, we still have the judiciary.