The Culture of Life Confronts Judicial Activism

Wednesday, April 20, 2005

The Culture of Life Confronts Judicial Activism

In this letter, the right wing's jihad against judges comes face-to-face with liberals' admiration for judges who strike down laws in the name of individual rights.

You'll recall that Judge Richard Kramer of the California Superior Court struck down that state's ban on same-sex marriage. According to the letter-writer, here's what followed:

A judge is being followed 24/7 by bodyguards to protect him against death threats and hate mail that he has been receiving....

According to a good friend of mine who speaks with Judge Kramer regularly, Judge Kramer is depressed that mail against his decision outnumbers mail in favor by a ratio of 10 to 1. He is depressed because he is bathing daily in a bath of vituperation and hatred. He is depressed because the people who oppose his decision are not interested in the rule of law but the rule of ideologies and emotions.

When I was a law clerk to a trial-court judge, he presided over a case that got a lot of press locally. I remember the outraged, often barely coherent, mail he got based entirely on people's unhappiness with the outcome and not on any argument that the judge got the law wrong. That was bad enough, but it's beyond obvious that when this stuff escalates to the point at which bodyguards are needed, the folks who are whipping up anti-judiciary rage ought to think about what they're doing (are you listening, Tom DeLay?).

But is this the right response?

So I am asking you a favor: Please take out your pen - yes, your pen, I ask for your hand in this - and write Judge Kramer a brief note of support.

If you live out of state, explain how it might touch and affect you to know that a California judge has had the courage to interpret the law scrupulously and in accordance with the evidence and our fundamental principles of equal justice for all, as our system requires.

I suppose that one could defend this on the grounds that the judge has already made his decision, and letters to him now would serve only the purpose of cheering him up in the face of horrible attacks and threats--a decent, humanitarian objective.

But, ordinarily, writing letters to judges about their cases is a bad idea. There's a good reason why there are formal channels and evidentiary standards for submitting information to a judge, and why people who aren't party to a case can't just show up to lobby the judge as they see fit (there is the possibility of amicus briefs; but, again, these have to be filed according to formal procedures with notice to all parties). Perhaps this letter-writing campaign is meant to be entirely after the fact, without any possible influence on the judge's handling of this particular case. But, to a lawyer who is trained to be very sensitive to ex parte communications, undue influence on judges, and the importance of avoiding even the appearance of impropriety, this makes me more than a little uneasy.

In a way, I think this case shows that as the legislative and judicial functions become blurred at the margins, it becomes easier and easier for folks to start thinking of judges as policy-makers to be lobbied like any other politicians. True, this letter praises the judge for upholding the law (at least the writer's vision of the law), rather than for making a particular policy choice. But it seems to me to imply, at least, that the praiseworthiness of the decision depends on whether more citizens agree or disagree with it.

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