Category Archives: The Rule of Law

Lindsey Graham on the Kagan Confirmation Vote

He tells colleagues to consider the golden rule.  In what way does the golden rule apply here?  Is it in being nice to Elena Kagan or is it in doing unto the voters.  While confirmation isn’t directly a topic of Preserving Democracy, the issue of the power of the judiciary is.

Senators should carefully consider the candidate, and not just qualifications, but also judicial philosophy.  That’s “doing unto the voters.”

As Elgin suggests in chapter 4:

The only solution is to insist that judges make rulings based strictly on the law. This will be difficult because, as judges have started to make legislative decisions, they have entered the political process and have gained political backing and support from those who like their rulings. Many find it much easier to have courts impose the policies they like, rather than to have to deal with the ambiguities of the democratic process. So one of the first steps will be to have a majority realize what exactly is at stake and the antidemocratic nature of the court’s rulings.

This suggests care in the selection of judges.

The Never Ending Struggle – The Rule of Law

In Chapter 4, The Rule of Law, Elgin Hushbeck discussed Proposition 8 in California regarding gay marriage.  The issue in that chapter is not the validity of gay marriage as such, but rather the proper way of changing existing law.  Should it be done by the courts or through normal legislative processes.

In an update for the new, expanded paperback edition, Elgin notes:

Update: In May 2009 the California Supreme Court issued a 6-1 ruling upholding Proposition 8. However, this did not end the issue. Advocates for same-sex marriage filed suit in federal court, and as a result, in January 2010 a trial began which put both the traditional definition of marriage and the people’s right to define democratically the society in which they live on trial.

In a rather clear case of trying to legislate from the bency, Judge Walker today ruled the proposition unconstitutional (source).  Doubtless this will go to the Supreme Court.

Update: A new review today from Chris Clark mentions this very issue.