Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 31, 2006

There He Stands

As an outcast. Tom Parker is running against Drayton Nabers for Chief Justice. Yet today at a news conference Associate Justice Mike Bolin said:

While Tom Parker's tenure has been marked by divisiveness, an activist judicial philosophy and an inability to do his job, Chief Justice Nabers is a hard worker and strong conservative leader who runs the court fairly, effectively and with integrity.

I do not have to tell you how remarkable it is for a sitting justice - one not involved in any election this year - to so strongly endorse a judicial candidate. Justice Bolin explains:

"I am not a press conference happy jurist," Bolin said, but he said the race for chief justice is too important to stay silent.

As for Mini-Moore's call to ignore the U.S. Supreme Court:

"I wouldn't let someone like the San Francisco mayor ignore the rule of law and pick and choose which laws to follow, and I'm not willing to let Tom Parker do it either," Bolin said.

Mini-Moore says he believes in the rule of law, but he thinks

the rule of law is the Constitution.

No doubt it is. The question, though, is who gets to decide what it means. When is a search unreasonable? Or a punishment cruel and unusual? What is due process? No two people will provide the same answers to these questions. Every court that considers them will come to a different conclusion. Hence, someone has to have the final word. That word may not be correct, but it is essential if we want coherent laws.

As evidence, I again ask you to compare Mini-Moore's jurisprudence:

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

To Martin Luther's theology:

"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."

I see no difference between the two theories. Thus, applying Mini-Moore's would cause the same problem as does the application of Luther's: Schism.