Bad Behavior
Some judges are getting out of control. Can they be stopped?
With the battle over President Bush's federal court nominees heating up, there's been a lot of talk among Christian conservatives about how almost every area of life they care about—the education of their children, who's allowed to marry and even the decision of when a loved one dies—seems threatened by out-of-control courts.
But exactly who are the black-robed renegades making the headlines?
To answer that question, Citizen investigated the judges who've written some of the most outrageous rulings in recent years. We discovered an interesting pattern.
Most of them seemed like pretty benign citizens before they got on the bench. Among their ranks were Scout leaders, regular church attenders, and in some cases, professing Christians and registered Republicans. Nothing in public records revealed a leaning toward left-wing extremism. In fact, it was hard to find a paper trail on them.
That obscurity is no accident. Many judicial candidates purposefully hide their views of law and justice from the general public until they've already gotten lifetime appointments to the bench.
"Our system of electing or appointing judges is inherently flawed because it's premised on the faulty notion that judges' "independence" on the bench depends on how little the public knows about their judicial philosophy," said Bruce Hausknecht, Focus on the Family's judicial analyst.
"Tyranny has always depended on ignorance—and the only way to overcome it is to empower voters by giving them more information. Until then, we will continue to have this phenomenon of candidates who appear to be harmless becoming judicial tyrannists once they're on the bench."
Warning lights
Take U.S. District Judge Gary Lancaster, who on Jan. 20 gave hard-core pornographers a constitutional right to sell videos of women being brutally raped and murdered. The government "can no longer rely on the advancement of a moral code [to prevent] consenting adults from entertaining lewd and lascivious thoughts," Lancaster wrote in United States v. Extreme Associates Inc.
You'd think that someone who tried to legally protect violent pornography would have an established reputation as a dangerous liberal. Not so, according to Dorn Checkley, director of the Pittsburgh Coalition Against Pornography.
When Checkley first heard that Lancaster was going to hear the case, he wasn't concerned. Lancaster had seemed like a friend of pornography foes. A couple of years ago, Checkley said, Lancaster upheld a licensing law allowing communities to restrict strip clubs' times of operation. Lancaster also upheld local police's right to search a suspected sex offender's apartment, where they discovered child pornography.
"I wasn't too worried [about the Extreme Associates case]," Checkley said. "I thought he would come down on the side of precedent, and all the precedent goes our way."
But Lancaster surprised federal prosecutors, and Checkley thinks he knows why.
"The jury would have thrown the book at them [Extreme Associates] because it's horrible, horrible stuff," Checkley said, "and personally, I think Judge Lancaster knew that. … So in a sense, he was protecting the defendant from an angry jury. And I did not expect him to do that."
In short, Lancaster usurped the jury by ruling that the hard-core porn peddlers' so-called right to privacy superseded federal laws. Thus, whether or not a community deemed something "obscene" was now irrelevant.
Lancaster's verdict is currently being appealed, and "if it's upheld," Checkley said, "it's almost the end" of city laws regulating pornography. Because adult bookstores will use the precedent to argue that they also have a "right to privacy" to ignore zoning laws, he explained. (The right to privacy does not appear in the Constitution, but was used by the Supreme Court to overturn abortion bans.) Pat Trueman, a former Justice Department attorney now with the Family Research Council, agreed with Checkley's analysis. "Even drug stores and grocery stores could have a right to sell hard-core pornography."
Though Lancaster's record looked good before this ruling, Hausknecht says there were signs that Lancaster might be troublesome, if you knew where to look and what to look for.
Appointed to federal court in 1993 by former President Bill Clinton, Lancaster described himself on an African-American judicial Web site as a civil-rights proponent who pursued a career in law because it "would afford me the best opportunity to effect social change."
That sounds admirable enough; ending discrimination is a good thing. But voters ought to see flashing warning lights around the words "effect social change," Hausknecht said. "Judges have no business making 'social change' from the bench. Social change—or making laws—is the sole domain of the legislative branch, which is composed of people accountable to the voters."
Lancaster's words also point to an inherent danger with civil-rights activists that it's easy for voters to overlook: They tend to exalt individual rights above everything—even moral law and the U.S. Constitution, Hausknecht says—which makes them prone to the "discrimination" claims of homosexual activists and even porn peddlers.
Good questions
But not all civil-rights proponents display such extremism. Says Armstrong Williams, an African-American conservative columnist and television show host, told Citizen.
Some "have clear moral guideposts that direct their opinions. Because you cannot separate your personal morality …from the way you govern on the court," he said, citing U.S. Supreme Court Justice Clarence Thomas as a model.
But sometimes it's hard for voters outside the inner workings of Capitol Hill to tell the difference between the Thomas-style judges and the Lancaster activists. So when U.S. presidents nominate candidates to the federal judiciary, Americans must insist that their senators ask those nominees tough questions, Williams said.
For instance, does a candidate believe in a "right to privacy"? Does he believe the Constitution is a "living" document? Or does he try to interpret the Founding Fathers' original intentions?
"Some senators are uncomfortable asking these questions because they feel [they will be accused of using] a 'litmus test,'" Williams said. "But they've got to be bold." Because judicial candidates "hide what their true feelings are until they get into a position where you can't … remove them from power. Because they have a larger agenda."
Disadvantaged voters
The same struggle for control of our courts is occurring at the state level, where hundreds of nonfederal judgeships are up for grabs.
Governors appoint judges in many states. In some states, those judges are appointed to a six- to eight-year term. Only when that term ends do voters get a chance to decide whether the appointee stays in office through what's called a "retention vote." But getting the public to reject a sitting judge is extremely rare. And, in fact, the judicial-retention system is set up in a way that discourages voter education. That's what Kevin Alons, a self-employed computer software developer in Iowa, discovered when he tried to oust a judge in his district.
In 2003, District Judge Jeffrey Neary granted a "dissolution of marriage"—i.e., a divorce—to two Sioux City lesbians who had obtained a Vermont "civil union." It was a backhanded way of legitimizing gay "marriage" and "a clear-cut, blatant violation of state law" defining marriage as the union of one man and one woman, Alons said.
Though Neary was appointed by a former Democratic governor, he serves a district composed of mostly rural, Republican voters. So when the judge came up for a retention vote in 2004, Alons figured it wouldn't be that hard to get the necessary "no" votes.
But he didn't take into account the fact that Neary had the support of local attorneys. "He actually beat us to the punch in the churches," Alons said. "Because there was probably at least one attorney in most churches that had reasonable influence in the community. So they banded together …because they knew Neary personally."
Neary's supporters emphasized his local reputation as a Scout leader who led children's sermons at the Lutheran church.
"I think a lot of people knew [what he did] was wrong," Alons said. "But he really won the hearts and minds with his emotional plea that 'I'm a great guy and these people are out to get me.' "
"It's easier to bring a positive message than a negative one, so right off the bat you're at a disadvantage."
Alons tried to document evidence of Neary's judicial activism. But he soon found himself lost in a complicated legal maze. "Privacy really just enshrouds all these legal proceedings," he told Citizen. "It just feels inaccessible. And I'm a computer guy—if anybody should know how to decipher it all, it's me."
In the end, Neary's legal network won out over Alons' grassroots efforts. On Nov. 2, Neary was re-elected to the bench by nearly 60 percent.
"People at some point have to wake up and get involved," Alons said. "We've got to start winning this education war."
Watchdogs needed
Alons' experience isn't unique. In Colorado, Rep. Greg Brophy, R-Wray, faced similar difficulties when he tried to impeach a judge who ignored state law.
Denver District Judge John Coughlin, another Democratic appointee, looked pretty harmless just before his 2000 retention vote. He was a Catholic with experience in oil and gas law; most voters didn't blink at checking the "yes" box next to his name. "That's the problem [with the retention system]," Brophy said. "It is very difficult to look at somebody's resume and try to determine how they're going to behave once they become a judge."
Three years later, Coughlin showed his true colors: He forbade a Christian mother from exposing her daughter to religious teaching "that can be considered homophobic." He also awarded her former lesbian partner status as a second "parent" even though she bore no financial responsibility for the adoption—and Colorado law does not acknowledge same-sex unions.
Colorado voters would have to wait another six years before they could impeach Coughlin by ballot (another problem with the retention system), so Brophy took matters into his own hands.
In March 2004, he launched an impeachment effort in the state legislature, only the second attempt of its kind in Colorado history. Brophy knew conservative attorneys who shared his opinion, but they stayed silent.
"They would have to risk their careers," Brophy told Citizen. "So you can understand why they would be hesitant to stand up there and take a shot at …somebody who could be the king over them the next week."
But he's not discouraged. "My impeachment attempt was just the first step …toward reining in the judicial branch," Brophy said. "If we're just successful anywhere in the country in getting … judges thrown out of office—either through retention or impeachment—that will help straighten them all up. It's one of those things where the more you do it, the less you need it."
Avoiding accountability
Another trick used by judges to keep voters out of the loop is early retirement.
In California, for instance, most judges are supposed to be elected. But it's common practice for them to vacate the bench before their term ends so the governor can appoint a replacement without voter input.
As a result, "In California … most people don't even know when judges are appointed in their own county," said Bob Tyler, an Alliance Defense Fund attorney who is helping defend the state's traditional-marriage law. "Then when [the appointee] is up for re-election as an incumbent, people have no idea who this judge is or what he stands for."
That obscurity worked to the advantage of San Francisco County Superior Court Richard Kramer, who was appointed by former Republican Gov. Pete Wilson.
Since most social conservatives assume a Republican appointee is safe, no one paid much attention at the time. And on paper, the judge looked like a model citizen—a 57-year-old Roman Catholic, a registered Republican and a former banking lawyer. But thanks to the appointment process, voters never got a chance to ask him about his judicial philosophy.
So they were in for a rude surprise when, on March 14, Kramer struck down California's voter-approved Defense of Marriage Act, ruling that "no rational purpose exists for limiting marriage in this state to opposite-sex partners."
One way Christian voters can avoid a repeat scenario is to be more pro-active in lobbying their governors, advised Colorado attorney James Rouse.
"Behind the scenes there is maneuvering going on that the public never sees," he said. "Special interest groups are lobbying governors. The conservative Christian, pro-family, pro-life folks need to start getting behind the scenes too and get the governor's ears. … Candidly, I think the homosexual groups do that all the time."
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