Now Criticism Is Out Too?

Because of Michelle Malkin (by the way, tanks fer nuttin, Michelle) and her review of a children's book she couldn't talk about in a family newspaper, I tumbled onto this website.

I'm warning you: Don't go there. DO. NOT. GO. THERE.

What, back already? OK. Well. If you looked around before you looked at the little black book, you noticed that the Article 8 Alliance seeks removal of the four justices of the Massachusetts Supreme Judicial Court who concurred in the 2003 gay-marriage ruling.

Massachusetts is one of only three states that grants lifetime tenure (although with mandatory retirement at 70 in Massachusetts). But, according to the Alliance, the state does grant the legislative and executive branches a removal power short of impeachment, a "bill of address." Such a bill has been introduced in the Massachusetts Legislature. (Here's the bill, and a link to coverage of a judiciary committee hearing, although it might more appropriately be described as a riot.)

Might this be the motivation for the latest headlines from the SJC's chief justice, Margaret Marshall? In her commencement address at Brandeis University, she said, "Seldom have I been so concerned about the rule of law as I am now ... I welcome criticism of the courts, but I worry when people of influence tell judges to conform to popular opinion. ... Gratuitous attacks on judges undermine trust."

Justice Marshall missed her calling. I mean, this is funny, funny stuff.

"I welcome criticism" but not "gratuitous attacks." She's starting to sound like Ted Olson there. Criticism, even sharp criticism, is OK, as long as it's never deployed.

"Gratuitous attacks on judges undermine trust." Right. It's those gratuitous attacks. Doesn't have anything to do with legalizing gay marriage by judicial fiat.

"I worry when people of influence tell judges to conform to popular opinion." I'm curious: Has anyone ever said that? I presume she's talking about Tom DeLay and President Bush, who has singled out Marshall's court for judicial-activist criticism.

But these critics don't want the judges to conform to public opinion. They want them to conform to the constitutions they're sworn to uphold. The whole problem is that judges like Marshall conform to opinion that's popular with liberals. U.S. Supreme Court Associate Justice Anthony Kennedy has said as much:

The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18. ... The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom.

Saying it doesn't make it so, Justice Kennedy. But I guess that doesn't have anything to do with "undermining trust" in the judiciary, either.

It's too bad Massachusetts doesn't give its citizens the sort of safeguards against judicial imperialism that exist in 47 states, elections of some sort being the check most often used. Too bad, too, that Americans don't have those safeguards against the federal judiciary.

Anyone out there think Justice Marshall could survive a retention election?
*****SPECIAL "DON'T DO US ANY MORE FAVORS" CITATION: Sen. Trent Lott, as I'm sure you know, coined the phrase "nuclear option" to describe a rules change that would ban judicial filibusters. Not only was it a public relations disaster, it travels badly. Here's a gay activist quoted by the Lowell, Mass., Sun (linked above): “This bill, should it ever become law, is nothing short of the nuclear option against gay and lesbian families,” said Mary Bonauto, an attorney with Gay and Lesbian Advocates and Defenders.*****Depleted Uranium has some interesting info on Marshall ... Da Judge shows up in criticism of The Deal at The Sundries Shack ... I forgot to mention this, which I first heard on Brit Hume's show, but fortunately JawsBlog is on the case ... Hey, you can trackback to David Limbaugh's column! ... Eugene Volokh makes the same point about what's causing judicial trust erosion ... Dean's World asks the same question ...