The Boston Globe editorial laments that “elections have consequences” but doesn’t seem to understand what that means. The Globe thinks that means something like “Liberals–you need to get out and vote!” But what it means in relation to federal judges is that voters do not support judges making laws. Instead, they want judges to rule on law made by our elected officials. That is one of the results we can infer from the election of Donald Trump.
While Presidents (or Governors) appoint judges, they then have lifetime appointments and are pretty much beyond the control of legislators. Many “Liberal” judges believe that they have the power to make decisions for everyone based on their understanding of our society. But our democracy was not designed to be ruled by unelected judges who make all the decisions. Instead, decisions are made by legislators and enforced by CEO-type politicians. If there is a clash or an ambiguity, we have courts to solve those problems. Otherwise, courts should not make laws.
I am in favor of gay rights but was happy with civil unions as opposed to gay marriage. This was in fact the mainstream belief, followed by most Democrat politicians like Obama, Clinton, Biden, etc. (Biden famously endorsed Gay Marriage as Obama’s VP before the big guy came around.) Now that we have Gay Marriage, I am fine with that as well. Our social structure has not broken down and many Gay people have gotten married and found happiness. That is great. But this was a breakthrough that was decided in a Massachusetts courtroom by activist judges. It was not something our political representatives voted on.
Now, if you support gay marriage, you might think this is a good thing. Perhaps the broken system worked correctly in this instance. But as they say, even a broken clock is right twice a day. What happens when the next group of activist judges decides to create new laws that infringe on your rights or beliefs? Will you be so willing to cede your democracy to this group?
Let me give some for-instances. Right now, we have a volunteer military and it seems to be working fairly well. But let’s say one day, a court decides that military service should be a requirement for all young men and women, and creates a new law that dictates mandatory one-year commitments to the military, unless there is a deferment for physical or mental reasons. Would you have a problem with that, or if a judge decides it, that is good enough for you? How will you feel when your kids get drafted to serve a year in Afghanistan or Iraq or South Korea?
Here’s another. What if the state wants to take your land by eminent domain. They will give you a fair market price for your house and you have to move. But this isn’t for some public project or new highway, it is so some connected developer can build a new mall and make a lot of money. The landowners go to court partly at your expense, and it goes before a judge. Is it okay for a judge to force the sale of your house just because he or she decides the economic interest of your city or town is more important than yours as a property owner?
Let’s say that some future Supreme Court decides that the “right to bear arms” that is written in the Second Amendment does not apply to handguns, only rifles. And the state is authorized to remove all handguns or assault weapons, or any type of gun that isn’t a hunting rifle, from your home. If you are a gun owner, would that be fine with you because a judge so ruled, even though it goes against the plain language in the U.S. Constitution? If you don’t allow the authorities to come into and search your house, you will be put in jail. Any problem with that?
What if the judge decides that your unpopular opinion on some subject is harmful to some group and that it therefore fits the definition of “hate speech,” and you are being prosecuted for speaking (or writing, or holding a sign, or whatever). Let’s go back to my first example and say you are against “Gay Marriage” for religious reasons. That is your opinion. Should the state be able to stop your free speech on this issue because some judge ruled Gay Marriage legal and now any opposition to it is a criminal offense? How would you feel if your Facebook post caused you to be visited by the police with a search warrant for your home computer?
I could continue, but the idea of courts acting as mini-legislatures when they are unelected and not accountable is something that most Conservatives disagree with.
Of course, the Boston Globe sees this issue completely differently. To them, Donald Trump’s election has caused “damage” to our society and our democracy. And now, we need to elect a Democrat to start re-appointing judges who will effectively legislate the norms they happen to believe in, despite the fact that millions of Americans don’t believe in them.
This is an example of “tyranny of the majority.” The Globe evidently thinks little of minority rights, and I’m not talking about racial minorities, I’m talking about those who do not philosophically agree with the majority. Being in the majority in a democracy does not mean that you can do whatever you want. Individuals have rights too, and they cannot and should not be trampled over just because you got 51% of the vote in an election.
Trump’s appointees do not believe in legislating from the judicial bench. That isn’t their plan. They want democracy to work and they are there to help interpret laws, not make them. They want elections to really have consequences, which means that laws are written by our elected officials, not unelected judges.
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I would like to point out that this poor editorial also suffers from some statistical misrepresentation. The Globe is “alarmed” that “nine nominees” to the judiciary received less than acceptable ratings by the American Bar Association. The Globe wants a private organization to be able to veto presidential appointments? What nonsense. The statistics the Globe cites do its argument no favors. Trump has had 187 nominees confirmed. Nine poorly rated, possibly for partisan reasons, is less than 5%. This percentage is nothing to be alarmed at (obviously). The Globe is just looking for things to pick apart here but this example comes up woefully short.
Another terrible example of misunderstanding is the Globe’s use of statistics. Really, they need to get a math major on their editorial board or something. Read this sentence:
The bias is instead on the part of Trump. He is truly remaking the federal courts in his own image — two-thirds of confirmed judges are white and male, albeit far younger than the sitting president. Some 86 percent of all confirmed judges are white — in a country that is 76.5 percent white.
Try to parse that tortured language. In a country “that is 76% white,” appointing 86% white candidates does not sound like a crazy outlier statistic. Unlike Democrats, Trump probably picks from among the best candidates regardless of skin color, racial background, sexual preference, and gender (although he does use judicial philosophy, which is totally legitimate). I wonder what the context for this statistic is, as in how many law school graduates are white, or what percentage of the top 10% or 20% of law school graduates are white? The racial background of the “country” seems like a strange yardstick.
OK, I just had to look this up. It turns out that in 2019, the ABA found that 85% of practicing lawyers are white. Trump nominated the exact same percentage as in the available population. See https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-population-demographics-2009-2019.pdf
I don’t want to dissect this entire piece but the rest is as bad and poorly researched as the examples above.
The conclusion to this sorry piece is the mantra that the Boston Globe has at the end of every editorial in this vein: Democrats need to get out and vote for whoever the Democrat nominee is, no matter which “loser” they nominate. Anyone but Trump!
Allen Nitschelm is publisher of PublicEditorMA.com. He critiques the Boston Globe, mostly focusing on the bias in their news reporting. News articles are graded for bias, and the website has a listing of the average bias ratings for all reporters reviewed. See our website for more information and the four categories of articles we publish.
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