Unelected Judges

In the debate over gay marriage, I often hear the terms "activist judge" or "unelected judge" tossed around. The former I consider to be a real problem, although I don't believe that a majority of accusations of an activist judiciary are really acts of legislation from the bench. The latter, however, really pisses me off. It's as if no one ever took civics in junior high. The last time I checked the judiciary was an equal branch of our government, our representational democracy. The way the terms get tossed about it's as if these judges emerge inexplicibly from the ether and indiscriminately pass judgement on an unwilling populus, unsure of where they came from or how they got there.

Well, pick a state constitution, any constitution. Or the federal one for that matter. In it, I guarantee you'll find instructions on how the judiciary is formed. Just because some judges aren't selected directly by the people in an at large election does not mean that they aren't a product of our democratic republic, a set of laws that can be changed at any time by the people, provided that is that they follow the Rule of Law. Now, I personally like an unelected judiciary, since an elected one like we have here in New York is often surrounded by accusations of partisan politicking.

And it's not as if these judges are the only "unelected" officials that have power in our system. I have never, ever heard Donald Rumsfeld, John Ashcroft, Colin Powell or Condoleeza Rice referred to as those "unelected secretaries", but they still have a shitload of power. In fact, Ashcroft, an unelected official, has as much power to pick and choose what cases he'd like to prosecute as the judiciary gets to select what cases it wants to hear. And if you think that the Attorney General doesn't play politics, you've got your head buried so far up your ass that I can't imagine how you even found your way onto the internet. But it doesn't matter, because every single judge in this country got there as a result of our elective process, some way or another.

So you might not like the fact that you don't get to hand-pick the judges who sit on the bench. You might not like the fact that you can't just kick them out when you don't like they way they interpret a law (which by the way, last time I checked was, um, their job). But to criticize their legitimacy based on their "unelected" status is to show a fundamental lack of understanding of our government. I'd expect that of a kindergartener, but from "educated" political pundits?