The Growing Effort of Conservative Christian Groups to Vet Judges At Every Level

Brian Tamanaha

The efforts of conservative Christian groups to seat federal judges who share their relgious/moral views have been widely reported in the press. At a private conference in March 2005, attended by Senate Majority Leader Bill Frist and then House Majority Leader Tom DeLay, evangelical leaders discussed a plan to "work with congressional Republicans to achieve a judiciary that sides with them on abortion, same sex marraige, and other elements of their agenda." Tony Perkins, head of Family Research Council, stated "For years activist courts, aided by liberal interest groups like the A.C.L.U., have been quietly working under the veil of the judicial bench, like thieves in the night, to rob us of our Christian heritage and our religious freedoms."

It is less well known that the same effort is taking place nation-wide at the state level, where the majority of judges face some form of election. An increasingly common tactic of conservative Christian groups, described in this report, is to send all judges (at every level) a questionnaire, the results of which are then posted or mailed to selected voters.

A typical version of this is the Florida Family Policy Council's 2006 Statewide Judicial Candidate Questionnaire. Among other loaded questions (like, favorite Supreme Court Justice?), are the following:

8. Do you agree with the following statement? "The Florida Constitution recognizes a right to same-sex marraige."

9. Do you agree with the [Florida Supreme Court's ruling invalidating a Florida law that required parental consent before a minor child can undergo an abortion]?

10. Do you agree with the [Florida Supreme Court's ruling upholding a statute prohibiting assisted suicide]?

11. Do you agree with [a federal district court ruling upholding a Florida law prohibiting homosexual adoption]?

12. Do you agree with [a Florida Supreme Court decision invalidating Florida's educational voucher program]?

Three Florida Supreme Court Justices declined to answer the questionnaire on the grounds that they are prohibited from expressing an opinion that could be interpreted as a prejudgment on an issue they might later be confronted with. The Florida Family Policy Council then sued to have those sections of the state judicial code declared unconstitutional.

When critics of this vetting practice argue that judges' personal or political views should not be considered in elections, the routine response is this (offered by the attorney for FFPC):

James Bopp Jr., a Terre Haute, Ind., lawyer who vets questionnaires for a number of interest groups, says he expects judges to be impartial and rule solely according to the law. But, he says, judicial candidates should be permitted to express their views on various issues.

Wink. Wink.

Of course the only point of such questionnaires is to identify and seat judges with a particular set of views in the hope (and expectation) that they will interpret the law in a manner consistent those views. The "we expect judges to rule solely according to the law" response is charade, although the very fact that they feel the need to recite it is a telling indication of their awareness that there is something wrong in what they are doing. After all, if it is wrong when the left and liberal judges do it, then it is still wrong when the right and conservative judges do it.

As these groups know, judicial elections are easier to swing than regular political positions because fewer voters register votes on judges on the ballots, out of indifference or a lack of knowledge about the judge. A "get out the vote effort" by a committed group can therefore be disproportionately effective.

What's at stake here is bigger than the liberal/conservative political divide: it is whether judges will be seen and treated in purely political terms, and whether, consequently, they will become purely political actors, operating under the guise of ruling solely according to the law.

The good news is that the overwhelming majority of judges failed to respond to the Florida survey, or responded but declined to answer the above questions. This poor response rate indicates that the judges, at least, recognize that questionnaires of this sort pose a threat to the integrity of the task they have sworn to uphold. Perhaps the Florida Family Policy Council, and other groups engaged in similar efforts (left and right), will reflect upon the message sent by the mass refusal of the judges to answer, and come to the decision that this is not the right way to further their agenda.

It is more likely, however, that this tactic will continue. The best hope is that judges as a group will continue to JUST SAY NO!
Posted 12:33 PM by Brian Tamanaha [link]