Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Tuesday, May 09, 2006

The Clone Wars: The Clones In Retreat?

State Supreme Court candidates Lyons, Stuart, Brown and Zeigler responded to several questions from the Montgomery Advertiser. Lyons, Stewart and Brown are Republican incumbents. Zeigler, a Republican challenger, is one of the Roy Moore clones.

The Advertiser first asked them what they saw as the biggest issue facing the judicial system. Lyon's answer was typical of the incumbents:

Demagoguery in judicial elections. Candidates for judicial office who promise to defy unpopular decisions of the United States Supreme Court or unpopular court orders hold out a false hope that their election will somehow insulate Alabama from the authority of the United States Supreme Court. In so doing, such candidates undermine the rule of law by advocating rebellion when our Constitution provides for peaceful means for change.

The authority of all judges is jeopardized by such rhetoric. If a justice on the Alabama Supreme Court can defy decisions of our nation's highest court, then on what basis should the justices on the Alabama Supreme Court expect adherence to its rulings by judges on the courts below the Alabama Supreme Court?

The view that each judge is entitled to apply the law in a manner that is right in his own eyes would lead to the anomalous result of recognizing the right of liberal judges across the country to defy decisions of the United States Supreme Court that they found to be too conservative. Supporters of defiance should be asked what their reaction would have been had the Supreme Court of Florida told the United States Supreme Court to "take a hike" when the order came down from Washington to stop counting chads in the case of Bush v. Gore in 2000.

If re-elected, I will continue to adhere strictly to the rule of law.

Here is Zeigler's response:

The single largest issue in this race is the need to re-establish the balance of power between the three branches of government in our state--executive, legislative and judicial. The balance has been upset at both the state and national levels by an inappropriately active judiciary.

The role of a judge is to uphold our Constitution. Upon entering office, judges swear an oath to do precisely that. Honoring the judicial oath means not legislating from the bench but, rather, leaving the legislative function to our elected representatives. Our judicial branch at both the state and federal levels is emerging from a period of unprecedented judicial activism.

Going forward, our judges must evidence a clear understanding of the need to honor their oath to the fundamental law to which they are accountable, the Constitution. The inappropriate use of judicial precedent to preempt the will of the people properly acting through their elected representatives undermines a fundamental feature of our republic, the concept of limited government.

The appropriate way to address this problem is by placing upon the bench judges who understand and adhere to this conservative definition of their role in our state government.

Where is his Master's clear call to defy U.S. Supreme Court precedent? This statement is no more than the same meaningless rhetoric we have heard parroted by conservative activists for years. The closest he comes to Min-Moore's defiance is in saying judges should not make "inappropriate use of judicial precedent to preempt the will of the people." Everyone can agree that judges should properly apply the law; we just occasionally disagree on how to do that. If this is all Zeigler means - that judges should properly apply the law - then why bother saying it? On the other hand, if he means judges should occasionally decline to follow clearly applicable law then why does he not say so? That would be a radical position, one voters need to understand before they support him.

So it sounds like he is hedging. Mini-Moore recently did the same thing. It appears the Moore-ons realize their message is not working. Alabamians are not ready for judicial anarchy.

Their central message rejected, do the clones have any hope of election? Do they have any other qualifications? When asked why they think they are the best candidate, each of the incumbents could point to years of experience as a lawyer and as a judge. Lyons, for instance said:

As a lawyer I represented clients in over 60 different appellate cases. I have appeared before the United States Supreme Court, United States Court of Appeals for the 5th Circuit, the United States Court of Appeals for the 11th Circuit, the Supreme Court of Alabama, and the Alabama Court of Civil Appeals. I was the principal draftsman of the Alabama Rules of Civil Procedure, and I authored a treatise on Alabama Civil Practice, now in its fourth edition.

Since becoming a justice on the Alabama Supreme Court in March of 1998 I have voted in over 15,000 cases and have authored hundreds of opinions. I chaired the committee that introduced mediation at the appellate level through which parties voluntarily attempt to reach an out-of-court settlement. Since its inception in early 2004, over 300 appeals in the Alabama Supreme Court and the Alabama Court of Civil Appeals have been amicably resolved. I have kept my docket current.

Zeigler's response:

I am the best candidate for Supreme Court Place 3 because I understand and acknowledge both the power and the limitations that are appropriate to the role of a justice under our form of government. We are a republic. Our system of government provides that we elect representatives to make the laws and an executive to administer our governmental agencies.

The best he can do is tell us that he understands eighth grade civics. Wow, what a candidate.