Wednesday, July 26, 2006

Over the Edge Justice in Washington Ruling

Let us consider Washington State Supreme Court Justice James M. Johnson. His concurrence (in judgment only in today's ruling upholding the ban on same-sex marriage was more a jeremiad. He seems to put the rite and the bite in rightwing.

Nice Guys Finish Short: The other concurring judge was Chief Justice Gerry L. Alexander. His one-pager notes that they ruled on the narrow subject of who can define marriage. He concludes:
If we were to conclude otherwise, as do the dissenters, we would be usurping the function of the legislature or the people as defined in article II of the constitution of the state of Washington. ..I quickly add, though, that there is nothing in the opinion that I have signed which should be read as casting doubt on the right of the legislature or the people to broaden the marriage act or provide other forms of civil union if that is their will.
In contrast, Johnson goes on for 56 pages figuratively dripping bile. He does not see the state's highest court as having any authority to rule on the matter. He has an awful insult or two for this colleague, Justice Barbara A. Madsen, who wrote the majority opinion. He even dons mantles of the U.S. Supreme Court and Congress. Here's a judge with both ideology and ambition.

Electioneering Johnson: We did not know the judge and scouted a bit. Washington elects its high-court justices. So his campaign profile is worth examining. He reported that he was non-partisan ant that "We the people can trust Jim Johnson to be a fair Supreme Court Justice, committed to defending our constitution and the freedoms it guarantees. Jim Johnson will NOT legislate from the bench." His entry also included, "CIVIL RIGHTS. Jim Johnson has argued cases protecting our most important civil liberties: Free Speech, Voting Rights and Property Rights. Johnson defended our right to vote without declaring a political party."

A little different slant came in an Associate Press article on court candidate. It introduced him with:
Johnson - who's defended Tim Eyman's anti-tax initiatives, fought against tribal claims on private and public lands and battled to keep Washington's blanket primary election system alive - has the backing of the Washington State Republican Party and big financial support from the Building Industry of Washington, a major force in GOP politics.
It also quoted David Groves, spokesman for the Washington State Labor Council as, "Jim Johnson we think is a very divisive anti-labor candidate."

On the ruling, Johnson clearly thinks the majority was nowhere near as strong as it should have been. He started with the claim that the U.S. Supreme Court ruling against polygamy (apparently the 1878 case) was a one-man/one-woman definition of marriage. From there, he concludes that every marriage decision the U.S. high court made affirms this.

Yet the oft iterated gist of his opinion is that "At its core, the claims involve not only the purported right to a 'marriage' with a person of the same sex but also a claim of raw judicial power to redefine public institutions such as marriage." True to his campaign for the seat, he holds the court is more subservient to the legislature than separated from it in governance.

He showed little respect for his associates. In fact, he suggested that the main opinion writer Madsen was in a fantasy world. As he put it, "Nor is Justice Madsen’s claim that 'history and tradition are not static,' Madsen, J., op. at 26 coherent, at least outside the context of a George Orwell novel. Our history and tradition are real and ascertainable."

He dismisses all the plaintiffs' assertions and finds both the state's tradition of marriage and DOMA constitutional. He expanded the majority opinion to embrace his own. "We conclude," he concluded, "that the legislature was justified in enacting DOMA to clarify and reaffirm Washington marriage law by compelling governmental interest in preserving the institution of marriage, as well as healthy families and children it promotes. This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts."

His definitions are absolute, but moot. They exceed the majority's actual findings as well.

Fortunately, no one else on the court seems as doctrinaire as he. At least with Johnson, one knows where he stands.

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