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Indiana Judges Association: Protect 'We (All) the People'

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IJA-Dreyer-DavidIn 1947, 16 German judges were tried and convicted for crimes against humanity, that is, enforcing Nazi racial purity laws supporting the Holocaust. In 2010, three Iowa judges were attacked and removed for striking down a same-sex marriage ban, that is, what some supporters call a marriage purity law. All these judges were guilty of doing their job. So what’s the difference? Well, the Nazi judges were following what they felt was required by the German government, and to some extent the German people, regardless of the consequences. But the Iowa judges were guilty of doing what they felt was required by the law, regardless of the consequences.

Afterwards, Iowa law professor Todd Pettys told the Wall Street Journal, “The notion of throwing someone out on the basis of one ruling is entirely in tension with all other considerations that went into coming up with Iowa’s policy [of keeping electoral politics out of the judiciary] . . . Given this, you’d think that the standard for rejecting a judge would be pretty extreme, like misconduct or a pattern of blatantly disregarding the rule of law. . . There’s just no misbehavior [here] of any kind.” So has electoral politics seeped into the American judiciary?

In 1849, a South Bend state trial judge named Elisha Egbert freed former slave David Powell and his family who were tracked down by their Kentucky “owners.” He interpreted a 1793 law to allow only damages for runaway slaves, not possession. If Judge Egbert was facing slave-owning voters, would he have been thrown out? A year later, Congress passed the Federal Fugitive Slave Act, and Northern judges everywhere followed the law to return former slaves to former masters. What would Judge Egbert have done under the new law? Presumably, he would have done his job – interpreted the law and followed it. If he was still in office.

Unfortunately for all Americans, a new Brennan Center for Justice report entitled “The New Politics of Judicial Elections” identifies a “grave and growing” challenge to impartial consideration of judges and the emergence of several “super spenders,” like the U.S. Chamber of Commerce. But is this new? Under accusatory euphemisms like “activist” or “legislating,” there is a discouraging record of judicial challenges based more upon a partisan single interest scorecard than the rule of law:

In 1996, Tennessee Justice Penny White was rejected for just concurring in a unanimous decision reversing a death penalty conviction – three California justices were earlier removed because of death penalty opposition.

In Kansas, Chief Justice Lawton R. Nuss and three colleagues recently survived strong opposition (abortion).

In Colorado, Chief Justice Mary Mullarky retired this year rather than face an organization called “Clear The Bench.” (taxes, redistricting, eminent domain)

In Illinois, Chief Justice Thomas Kilbride vigorously fought and survived opposition based not upon any ruling, but seeking a more partisan court for upcoming political redistricting. Even local cynics conceded any new judge might still be independent. (“It’s conceivable that [the court] would do what it ought to do.” – Illinois official Dawn Clark Netsch)

“The business of the law is to make sense of the confusion of what we call human life, “said poet Archibald MacLeish, himself a lawyer, “to reduce it to order but at the same time to give it possibility, scope, even dignity.” This could be a standard by which to judge a judge – not whether we agree on a single case, or to bully an expedient political point. Bob Vander Plaats, the Iowa opposition leader, declared, “It’s ‘we the people,’ not ‘we the courts.’” But according to the Founding Fathers, he is wrong. The plain words of the Constitution give power to the people – and deliberately balance that power with the rule of law. So it is more accurate to say, “We all the people (protected by the law all the time),” not “we the (majority of) people (only in one election on one issue).”

What can be done? Nothing. In a democracy, no law should stop these “super spenders” and single-issue thinkers. But judges who forfeit their independence for short-term considerations may face long-term consequences. Just ask the German judges. Overall, there has been no diminishing effect on the courage and dedication of our judges to do what is right rather than do what polls show. But there will always be good judges who will be removed, who will get thrown out for the wrong reason, or no reason. Regardless, the Republic stays strong because judges stay strong. Just ask the Powell family.•
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Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed in this column are the author’s

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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