Thursday, October 21, 2004



'Judicial activism' call ruled out of order

Thursday, October 21, 2004

Whenever someone appears in a court room in the United States, he or she expects that the judge will be fair, independent and free of outside influence.

The integrity of the judiciary depends on that one simple public trust. Margaret Marshall, chief justice of the state's Supreme Judicial Court, reminded us of that in a rare public appearance Tuesday before the Greater Boston Chamber of Commerce.

"Our system has worked for 200 years, where you have independent judges who are not beholden to the elective office," she told the chamber officials.

So why the high school civics lesson?

Judges have been under attack ever since the SJC's landmark ruling to legalize gay marriage in Massachusetts. Critics argue that the ruling was the work of "activist judges" and that it underscores their argument that voters should decide who sits on the bench.

We have strongly opposed judicial elections in this space in the past, and we have seen nothing to change that position.

Judicial elections would undermine judicial independence. Judges should decide each case on the rule of law, not on whether it might hurt a re-election bid or upset a campaign donor.

This is America. Judges are fair game for criticism. That is one of the great advantages of living in a democracy. And this ruling triggered lots of criticism. Frankly, we would be concerned if anyone in this country felt as if he or she could not criticize a judge or a judicial ruling in public.
Yet some gay marriage opponents tried to get Marshall and the three other justices who joined her in the majority removed from the bench, and others talked about giving voters the opportunity to get rid of judges at the ballot box.

That's not criticism. It's another form of activism that is unhealthy for an independent judiciary.

Judges make decisions on the rule of law. Sometimes those decisions are unpopular, but the judges are performing their constitutional duty.

No one wants his fate in a court room determined by a judge who kept his seat on the bench because he raised more campaign money.



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