Two Views of Judicial Retention

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(HOST) Four justices of the Vermont Supreme Court are currently under review to determine if they get to remain on the bench. A challenge has arisen during the process concerning the interpretation of the Vermont constitution in two recent controversial decisions. Commentators Cheryl Hanna and John McClaughry offer Two Views of the judicial retention debate. Here’s Cheryl Hanna.

(HANNA) Some Vermonters need a reminder on democracy. It doesn’t mean the people decide all issues. That would be tyranny, with the majority always holding power over the rest of us. Democracy depends upon an independent judiciary to check the people’s power.

Sadly, however, there are some Vermonters who don’t understand the importance of an independent judiciary. These folks are unhappy with the decisions in Brigham and Baker, suggesting that the Justices who decided those cases “made up” law.

These folks profoundly misunderstand constitutional interpretation. Throughout history, judges have relied on many different intellectual traditions. It’s widely accepted that there’s no one “right” way to interpret a constitution. The question for the legislature is whether a judge’s decision-making is consistent with conventional Constitutional methodology. Judges should fairly examine both sides and give appropriate deference to precedent, history and Constitutional text. They must also take into account the modern context in which questions arise.

In both Brigham and Baker, the Court’s decisions were well within mainstream judicial decision-making. Indeed, our Court showed far more restraint than many others faced with similar challenges. Rather than decide how schools should be financed under the Constitution’s Education Clause, or how same-sex couples should be treated under the Constitution’s Equal Benefits Clause, the court set forth general principles and allowed the people to fashion the solutions. One is free to disagree with those decisions, but political disagreement should never be grounds for judicial dismissal.

Chief Justice Rehnquist recently observed that judges should not be punished for their decisions if we are to ensure a commitment to the rule of law. I hope our lawmakers understand that, by punishing judges for legally sufficient albeit controversial decisions, we ultimately punish our Democracy.

I’m Cheryl Hanna.

(MCCLAUGHRY) And I’m John McClaughry.

Everyone agrees that Justices who are senile, deranged, intemperate or corrupt should not be retained on the bench. The Justices, the legal profession and their friends in the legislature believe that’s the end of it. They insist that it’s not the business of legislators to pass judgment on the substance of a Justice’s work, which ordinary mortals can not possibly comprehend.

It’s too bad George Washington, Tom Jefferson, Alexander Hamilton, Andy Jackson, Abe Lincoln and Teddy Roosevelt aren’t around. All of them well understood that constitutions belong to the people, and judges are not at liberty to rewrite the constitutions the people adopted. Only the General Assembly and the people of this state can lawfully amend the Constitution.

When Justices, for their own political purposes, invent new “rights” nowhere found in the Constitution – “rights” clearly not contemplated by the framers of the Constitution, “rights” that lay completely unsuspected through two centuries of our state’s history until miraculously discovered – those Justices are usurping their rightful role.

In both the school finance and gay marriage cases, a clause in the Constitution designed to forbid those in charge of the government from showering special privileges on their cronies was interpreted as a sweeping principle: that legislatures can make no rational distinctions that disfavor any class that the Supreme Court finds politically correct. For this there is no text, no precedent, no case law and no standards to guide future trial courts. This is simply arbitrary rule by unelected Justices. That’s what George Washington and the others called judicial usurpation.

The coming vote on retention is the people’s way of holding Justices accountable.

Thanks for listening.

John McClaughry is president of the Ethan Allan Institute, a Vermont policy, research and education organization. Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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