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Opinion Column
For the week of Mar. 15 through Mar. 21, 2000

Playing politics with
the scales of justice
warps the system

Commentary by PAT MURPHY

Now and then a politician comes along who’ll utter just enough to reassure most Americans that their fate under the law is better served by judges than by politicians.

This week’s contribution comes from Republican state Rep. Todd Hammond, of Rexburg, who’s livid about state Supreme Court decisions with which he disagrees, and especially with Justice Cathy Silak.

Like most politicians who enjoy grandstanding about judges, Rep. Hammond simply won't tolerate a justice who doesn’t rule his way.

This sin is known as "judicial activism." Judges who rule the way he prefers presumably are constitutional geniuses. So, Rep. Hammond has cures in mind.

"If we can’t do it legislatively by tying their hands," he fumed the other day, "then we’ve got to send a message by replacing her."

Now, ask yourself, if you were relying on wisdom, judgment, an understanding of legal precedent and judicial temperament, would you prefer to be judged by Justice Silak or a hand-picked legal hack who would dance to the tune played by Rep. Hammond who, in his own words, would make judges conform to his politics "by tying their hands"?

Rep. Hammond is not bound by logic, law, legal precedence and certainly not by wisdom in what he says. As he well knows, state legislatures are the mother lode of idiotic statements and legislative eccentricity.

In my own former state of Arizona, the Republican-controlled legislature is known in some circles as "The 90 Dwarfs;" some of them serve on what’re derisively dubbed "Black Helicopter committees" because of their paranoia-based proposals.

Example: state Rep. Karen Johnson has offered legislation allowing Arizona to secede from the Union.

But back to Idaho’s Rep. Hammond.

He apparently is so taken with the infallibility of his own philosophy that it hasn’t occurred to him that the function of judges is not to please everyone, but to administer the law as it’s written or as they perceive its proper application.

And unlike Rep. Hammond, who can utter loose-cannon remarks at will, decisions and rulings of judges must be ground in law and logic and can be appealed and reversed by higher courts.

Republicans in state legislatures and in Congress seem to have a special boiling point about judges who act as judges instead of playing politics. By threatening to find a like-minded challenger to Justice Silak at election time, Rep. Hammond no longer seems interested in a court system that serves the people, but in a packed court system in which Boss Hammond dictates rulings.

As other states have long ago discovered, the only way to protect courts from political bullyboys, legislative meddling and ideological mischief is to make judges appointive. Judges who must campaign for reelection and must defend themselves against mindless charges of "judicial activism" by irresponsible politicians are subjected to the worst sort of intimidation and distractions.

States that’ve adopted systems of appointing judges—requiring them to be returned for subsequent terms by a public vote—have improved the quality of justice and, to my knowledge, never returned to the old politics of electing judges.

What Rep. Hammond may think is "judicial activism" has another possible name: Justice.

Pat Murphy is the retired publisher of the Arizona Republic and a former radio commentator.


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