Alablawg

Commentary on Alabama Law and Society

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Friday, May 19, 2006

The Daily Strikes Again

It lacks the fireworks of their other interviews with Alabama judicial candidates, but the Decatur Daily has an interesting story on Mark Anderson, a Republican candidate for the Court of Civil Appeals. Two things.

First, like everyone else, he distances himself from the Moore-ons.

Referring to the high-profile duel between Justice Tom Parker and Chief Justice Drayton Nabers, he said judges are bound by an oath to follow precedents of higher courts, even if those precedents are poorly decided. . . .

An op-ed piece written by Parker in January criticized the state Supreme Court for abiding by a U.S. Supreme Court decision that declared the execution of minors to violate the U.S. Constitution.

Like Parker, Anderson said the U.S. Supreme Court case was poorly decided. Unlike Parker, Anderson said ignoring the precedent was not an option.

Mini-Moore likes to say his oath is to the Constitution, not to the Supreme Court Justices who interpret it. Hence, loyalty to his oath means disobeying those Justices when they "wrongly" interpret the Constitution. His words:

a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism

That argument sounds a lot like Martin Luther at the Diet of Worms:

"Unless I am convicted by Scripture and plain reason—I do not accept the authority of popes and councils, for they have contradicted each other—my conscience is captive to the Word of God. I cannot and will not recant anything, for to go against conscience is neither right nor safe."

Now, whatever you think about the persuasiveness of Luther's belief that Scripture trumps Papal authority, you have to recognize that it has not worked out so well for Christian unity. Just count the number of different protestant churches you pass on the way to work. Sola Scriptura may be great in theory, but it's terrible in practice.

If we decide to follow Mini-Moore, we will end up just like the protestant church. Like the Bible, the Constitution is often vague and ambiguous. Applying it to today's world is tricky. No two people are going to read it in the same way. Hence, if the rule is Sola Constitution, every person will be a law unto herself. To avoid this, someone has to have the final interpretive authority. That someone is the United States Supreme Court.

The second interesting point from the story is this:

Anderson said left-leaning judges for years distorted law to arrive at pre-ordained results, and he fears the same is happening again, this time by right-leaning judges.

"Neither side should control the court. Lately things have smacked of activism from the right rather than activism from the left," Anderson said. "Neither is acceptable."

All most people see are the headline cases about abortion, or capital punishment. But in the normal day to day cases the situation is very different. State or federal, any appellate court hearing a criminal case is not asking which side is correct, it is asking how it can most easily rule in favor of the state. The civil side is not much better for plaintiffs. This has been the case for some time now, it's just nice to hear a Republican judge admit it.