Some judges are getting out of control.

Can they really be stopped?

By: Candi Cushman

W ITH THE BATTLE OVER PRESIDENT BUSH’S FEDERAL COURT NOMINEES HEATING UP, THERE’S BEEN A LOT OF TALK AMONG CHRISTIAN CONSERVATIVES ABOUT HOW ALMOST EVERY AREA OF THEIR LIFE THAT THEY DO REALLY CARE ABOUT ----the education of their children ----who’s allowed to get married ----the decision of when a loved one dies-----seems threatened by our out-of-control courts.

But exactly who are the black-robed renegades making daily headlines?

To adequately answer this timely question, CITIZENinvestigated the numerous judges who’ve written nsome of the most outrageous rulings in recent years. WE DISCOVERED AN INTERESTING PATTERN!

Most of them seemed like pretty benign citizens before thcy got on the bench. Among their ranks were Scout leaders, regular church attenders, and in some cases, professing Christians and registered Republicans. Nothing in public records revealed a leaning toward left-wing extremism. In fact, it was hard to find a paper trail on them.

THAT OBSCURITY IS NO ACCIDENT. Many judicial candidates purposefully hide their views of law and justice from the general public until they’ve already gotten lifetime appointments to the bench.

‘Our system of electing or appointing judges is inherently’ flawed because its premised on the faulty notion that judges “independenee” on the bench depends on how little the public knows about their judicial philosophy,” said Bruce Hauskneeht, Focus on the Family’s judicial analyst.

“Tyranny has always depended on ignorance—and the only way to overcome it is to empower voters by giving them more information. Until then, we will continue to have this phenomenon of candidates who appear to be harmless becoming judicial tyrannist once they’re on the bench.


Take U.S. District Judge Gary Lancaster, who on Jan. 20 gave hard-core pornographers a constitutional right to sell videos of women being brutally raped and murdered. The government can no longer rely on the advancement of a moral code [to prevent] consenting adults from entertaining lewd and lascivious thoughts,” Lancaster wrote in United States v. Extreme Associates Inc.

You’d think that someone who tried to legally protect violent pornography would have an established reputation as a dangerous liberal. Not so, according to Dorn Checklcy, director of the Pittsburgh Coalition Against Pornography.

When Checkley first heard that Lancaster was going to hear the case, he wasn’t concerned. Lancaster had seemed like a friend of pornography foes. A couple of ears ago, Checkley said, Lancaster upheld a licensing law allowing communities to restrict strip clubs’ times of operation. Lancaster also upheld local police’s right to search a suspected sex offender’s apartment, where they discovered child pornography

1 wasn’t too worried [about the Extreme Associates case] “ Checklcy said. 1 thought he would come down on the side of precedent, and all the precedent goes our way.

But Lancaster surprised federal prosecutors, and Chcckley thinks he knows why. ‘The jury would have thrown the book at them [Extreme Associates] because it’s horrible, horrible stuff,” Checkley said, “and personally, I think Judge Lancaster knew that.... ... So in a sense, he was protecting the defendant from an angry jury. And I did not expect him to do that.”

In short, Lancaster usurped the jury by ruling that the hard-core porn peddlers’ so-called right to privacy superseded federal laws . Thus, whether or not a community deemed something obscene” was now irrelevant.

Lancaster’s verdict is currently being appealed, and ‘if it’s upheld,” Checkley said, ‘it’s almost the end” of city laws regulating pornography. Because adult bookstores will use the precedent to argue that they also have a “right to

privacy” to ignore zoning laws, he explained. (The right to privacy does not appear in the Constitution, but was used by the Supreme Court to overturn abortion bans.)

Pat Trueman, a former Justice Department attorney now with the Family Research Council, agreed with Checkley’s analysis. “Even drug stores and grocery stores could have a right to sell hard-core pornography”

Though Lancasters record looked good before this ruling, Hausknecht says there were signs that Lancaster might be troublesome, if you knew where to look and what to look for.

Appointed to federal court in 1993 by former Prcsident Bill Clinton, Lancaster described himself on an African-American judicial Web site as a civil-rights proponent who pursued a career in law because it would afford me the best opportunity to effect social change.

That sounds admirable enough; ending discrimination is a good thing. But voters ought to see Bashing warning lights around the words “effect social change,” Hausknecht said. judges have no business making social change’ from the bench. Social change—or making laws—is the sole domain of the legislative branch, which is composed of people accountable to the voters.’

Lancaster’s words also point to an inherent danger with civil-rights activists that it’s easy for voters to overlook: They tend to exalt individual rights above everything —even moral law and the U.S. Constitution, Hausknecht says— which makes them prone to the discrimination” claims of homosexual activists and even porn peddlers.

Good questions

But not all civil-rights proponents display such extremism. say’s Armstrong Williams, an African-American conservative columnist and television show host, told Citizcn.

Some “have clear moral guideposts that direct their opinions . Because you cannot separate your personal morality ...from the way you govern on the court” he said, citing U.S. Supreme Court Justice Clarence Thomas as a model.

But sometimes it’s hard for voters outside the inner workings of Capitol Hill to tell the difference between the Thomas-style judges and the Lancaster activists. So when U.S. presidents nominate candidates to the federal judiciary’, Americans must insist that their senators ask those nominees tough questions, Williams said.

For instance, does a candidate believe in a right to privacy? Does he believe the Constitution is a living’ document? Or does he try to interpret the founding Fathers original intentions?

“Some senators arc uncomfortable asking these questions because they feel [they will be accused of using ] a ‘litmus test,”’ Williams said. “ But they’ve got to be bold.” Because judicial candidates “hide what their true feelings are until they get into a position where you can’t ....remove them from power. Because they have a larger agenda.”

Disadvantaged voters

The same struggle for control of our courts is occurring at the state level where hundreds of nonfcdcral judgeships are up for grabs.

Governors appoint Judges in many states. In some states, those judges are appointed to a six- to eight-year term. Only when that term ends do voters get a chance to decide whether the appointee stays in office through what’s called a “retention vote.” But getting the public to reject a sitting judge is extremely rare.

And, in fact, the judicial—retention system is set up in a way that discourages voter education.

That’s what Kevin Alons, a self—employed computer software developer in Iowa, discovered when he tried to oust a judge in his district.

In 2003, District Judge Jeffrey Neary granted a “dissolution of marriage”—i.e.. a divorce—to two Sioux City lesbians who had obtined a Vermont ‘civil union.” It was a backhanded way of legitimizing gay marriage” and ‘a clear—cut, blatant violation of state law” defining marriage as the union of one man and one woman, Alons said.

Though Ncary was appointed by a former Democratic governor, he serves a district composed of mostly rural, Republican voters. So when the judge came up for a retention vote 2004, Abons figured it wouldn’t be that hard to get the necessary no Votes.

But he didn’t take into account the fact that Ncary’ had the support of local attorneys.” He actually beat us to the punch in the churches,” Alons said. “Because there was probably at least one attorney in most churches that had reasonable influence in the community. So they banded together..... because they kncw Neary personally.

Neary‘s supporters emphasized his local reputation as a Scout leader who led children’s sermons at the Lutheran church.

“I think a lot of people knew [what he did was wrong, Alons said. “But he really won the hearts and minds with his emotional plea that I’m a great guy and these people are out to get me.’

“It’s easier to bring a positive message than a negative one, so right off the bat you’re at a disadvantage.’

Alons tried to document evidence of Neary’s judicial activism. But he soon found himself lost in a complicated legal maze . “ Privacy really just enshrouds all these legal proceedings,” he told Citizen . “it just feels inaccessablc. And I’m a computer guy—if anybody should know how to decipher it all, it’s mc.”

In the end, Neary’s legal network won out over Alons’ grassroots efforts. On Nov. 2, Neary was re-elected to the bench by nearly 60 percent. “People at some point have to wake up and get involved,” Alons said. “We’ve got to start winning this education war

Watchdogs needed

Alons’ experience isn’t unicjue. In Colorado, Rep. Greg Brophy, R-Wray, faced similar difficulties when he tried to impeach a judge who ignored state law

Denver District Judge John Coughlin, another Democratic appointee. looked pretty harmlcss just before his 2000 retention vote. He was a Catholic with experience in oil and gas law; most votcrs didn’t blink at checking the “yes” box next to his name . That’s the problcm with the retention systeml ,“ Brophy said. “It is very difficult to look at somebody’s resume and try to determine how they’re going to bcbav e once they become a judge.”

Three years later. Coughlin showed his true colors: He forbade a Christian

mother from exposing her daughter to religious teaching “that can he eonsidcred homophohic.” He also awarded her forrmer lesbian partner status as a second “parent even though she bore no financial responsibility’ for the adoption—and Colorado law dld not aeknowledge same-sex unions.

Colorado voters would have to wait auanother six ears beforc they could impeach Coughlin by ballot (another problem with the rctention system), so Bropby took matters into his own hands.

In March 2004, he launched an impeachment effort in the state legislature, only the second attempt of its kind in Colorado history Brophy kncw conservative attorneys who shared his opinion, but they stayed silent.

They would have to risk their careers , Brophy’ told Citizen. “So you can understand why they would be hesitant to stand up there and take a shot at somebody’ who could be the king over them the next week.”

But he’s not discouraged. My impeachment attempt was just the first step ...... toward reining in the judicial branch,” Brophv said. ‘If we’re just successful anywhere in the country in getting ..... . judges thrown out of office— either through retcnt on or impeachment —that will help straighten them all up. It’s one of those things where the more you do it, the less you need it.”

Avoiding accountability

Another trick used by judges is to keep voters out of the loop is early retirement. In California. for instance, most judges arc supposed to be elected. But it’s common practice for them to vacate the bench before their term ends so the new governor can appoint a replacement without voter input.

As a result, “In California ....... most people don’t even know when judges arc appointed in their own county said Bob Tyler, an Alliance Defense Fund attorney’ who is helping defend the state’s traditional—marriage law “

Then when [the appointee] is up for reelection as an incumbent, people have no idea who this judge is or what he stands for.”

That obscurity worked to the advantage of San Francisco County Superior Court Richard Kramer, who was appointed by former Republican Gov. Pete Wilson.

Since most social conservatives assume a Republican appointee is sale, no one paid much attention at the time. And on paper, thc judge looked like a model citizen-a 57-year—-old Roman Catholic, a registered Republican and a former banking lawyer. But thanks to the appointment process, voters never got a real chance to ask him about his judicial philosophy.

So they were in for a rude surprise when, on March 14, Kraincr struck down Calilornia’s voter—approved Defense of Marriage uct, ruling that ‘no rational purpoe exists for limiting marriage in this state to opposite—sex partners.”

One way Christian voters can avoid a repeat scenario is to be more pro—active in lobbying their governors, advised Colorado attorney James Rouse. “Behind the scenes there is maneuvering going on that the public never sees,’ he said. “Special interest groups are lobbying governors. The conservative Christian, pro family, pro-life folks need to start getting behind the scenes too and get the governors ears ........ Candidly, I think the homosexual groups do that all the time.”

But even in states where judges are elected to office, they’ find clever ways to escape accountability . In Florida, Judge George Grecr—the state judge who ordered Terri Schiavo’s death by dehydration and starvation—easily won reelection in November 2004. And he did so without ever having to defend his views on the value of life.

That’s because a Florida ethics code forbids judicial candidates from saying any thing that could be construed as a commentary’ on a particular case . Most states have these codes, which were originally’ created to protect would—be judges from having to pledge or promise a certain verdict.

But instead of ensuring fairness, they”ve “become a contrivance behind which judicial candidates hide, and which, frankly;, they like as a shield from exposure to controversy,” said Kcn Connor, who was Florida Gov. Jeb Bush’s legal counsel in a legislative attempt to save Schiavo’s life.

As a result, even though Greer had an election oppont, Florida voters weren’t able to make an educated choice. That’s because neither Greer nor his opponent responded to prc~-family voter questionnaires.

The opponent, lawyer Jan Govan, later told Citizen that he was afraid to answer questions about his views on the sanctity of life for fear of being punished under Florida’s judicial ethics code—or “judicial gag rule,” as Connor likes to call it. ‘I basically was [denied] my First Amendment rights to speak, he said.

Other Florida lawyers who opposed Grecr also remaincd silcnt, said Pat Anderson, one of the attorneys who represented Terry Schiavo’s parents, Bob and Mary Schindler.

You are not allowed to speak ill of judges for fear of lessening the publics

confidence in the judiciary, she said, explaining that the Florida state bark

professional code forbids it. The bar works double overtime to keep you from

knowing about judges. ...... The system is, don’t criticize me, I’m the judge.’

Look,” she added, ‘Judge Greer has gotten three awards from local bar associations for judicial courage because of his actions in the Schiavo case. Now think about that . how much courage does it take to kill an innocent, helpless vulnerable, handicapped adult?”

Voters re-elected Greer by 65 percent. Four months later Tern Schiavo was dead on his orders.

The judicial gag rttle helps favor the incumbent,” Connor said. “The natural tendency of people . ..... . if they don’t know much about the opponent, [is to] say, Well, I’ll dance with the devil I know instead of the one I don’t.’

Voters may soon get some help. Lawsuits in two states—Kentucky and North Dakota—have resulted in rulings allowing citizens to question judicial


James Bopp, the free—speech attorney in Indiana who won the lawsuits, says that just as U.S. senators have the right to publicly query the judges they’ve been asked to approve, state voters should demand their right to engage in a discussion that’s every bit as vigorous and robtmst in the interest of the First Amendment.

Bringing courts under control may seem like an impossible task. It will take time to get every state to allow for voter guides and other measures. But you know what? It’s worth doing,’ said Colorado Rep. Brophy. Because ‘the world really’ is run by’ the people who show up, and our good folks need to be ready to show up!

We’ve got to be ever vigilant in battling against this stuff, and in electing governors who will appoint the right judges ..... . . and getting the word out that bad judges need to be removed from office.”


CITIZEN Magazine

June 2005. (Pgs. 22-26

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