Wednesday, December 01, 2004

Advocate Judges

President Bush has come out several times in his disdain for “advocate judges”. There seems to be little discussion as to the meaning of what this term “advocate” means. At its simplest all judges are advocates. After listening to the different sides of an argument, each judge advocates a position that seems the most just, fits the law, and/or follows previous precedent. If a judge didn’t advocate a position, there would be no resolution to the argument presented to him/her.

However, for some reason I don’t think that is what President Bush means. He doesn’t want 1/3 of the government’s checks and balances to stop doing their job. He wants judges to stop “advocating” positions he disagrees with. Specifically, the Massachusetts Supreme Court, which ruled that it was against the civil rights of homosexuals for the state not to recognize their legal union. George Bush wants courts to stop “advocating” civil change. This fits nicely with culturally conservative backlash against the Warren Court of the 1960s and 1970s that used legal rulings to help blacks and other minorities achieve legal parity with whites. Many cultural conservatives feel that society was forced to change at the whim of judges, many of whom don’t have to answer to the political process because they are appointed, not elected.

So is it appropriate for the president to ask judges to only rule the way he wants them to? I would argue, not from a Christian point of view, but from a democratic point of view, that balance of powers is one of the most crucial elements in our Constitution. If judges are afraid to contradict the executive or legislative branches, then they just become rubber stamps and no longer act as a counter-balance to the other branches.

However, lets look to the Bible for a model, if there is one, for a Christian perspective. The most obvious place to look is the Book of Judges. However, according to my NIV translation, judges can also be translated as “leaders” and it appears that all the judges are either political or military leaders. So these judges are not the judicial reviewers that President Bush is speaking of. Strike One.

Next, we should look to Jesus. Jesus speaks of judging on several occasions. The most common instance relates to God’s judgement (Matt 11:24, John 5:22, 9:39, 12:31, 16.8), which isn’t important for this discussion. One of Jesus’ most commonly known commandments is the do not judge lest you be judged (Matt 7:1), but again pretty clearly not related our discussion as Jesus is addressing personal behaviour.

Jesus does use a judge (Luke 18:3-8) to emphasize his desire to answer prayers, but all we learn about the judge is that he gives the widow justice so she will stop bothering him. Not surprisingly, Jesus doesn’t specifically command how judges should do their job. A similar search of Paul’s writings will also end up empty. Strike Two.

However, I’m not sure all is lost. Jesus didn’t specifically mention many issues, but we have Biblical principles to draw on to help guide our path. Starting with the idea that judges are in charge of deciding the most just course of action (some people disagree with me here and we’ll never see eye to eye), we can look to what the scriptures say about justice. To avoid getting sidetracked, we’ll avoid discussion of God’s justice for his people and against sinners; we can still find a few verses relating to our discussion. The most obvious is Micah 6:8, which requires that we do justly and walk humbly with God. If we look at Deuteronomy 1:16-17, we can find God speaking to his freshly freed Israelites and instructing the judges to “hear the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of them and an alien. Do not show partiality in judging; hear both small and great alike.” I’m a little insecure about taking two verses from the OT law books and making social policy, but the idea of justice for all regardless of social level or background appears to follow throughout all Scripture.

Throughout the Old Testament, God speaks of looking out for the fatherless and widows and making sure they get justice. He knows that the rich and powerful will automatically get justice, but the outcasts of society will always struggle. Jesus rebukes the Sanhedrin in John 7:24 for judging “by mere appearances” and to “make a right judgement”.

So where does that get us? It appears that judges have a Biblical mandate to advocate positions of justice, especially for the poor and outcasts. So judges should put forward the decision that is the most just. That could take the form of socially liberal judgements requiring more equitable funding for schools or recognition of gay relationships. However, this could also take the form of socially conservative judgements of restrictions on content of public television or upholding a death sentence. So I’m not sure it gets us anywhere on the political front. Arguments about strict-constructionism or reasonable-constructionism are for the political/judicial realm.

This issue of advocate judges shouldn’t even enter the Biblical or Christian realm. It is simply an example of Bush being a social conservative. It ain’t about Jesus.

As an interesting sidenote, some of the conventional wisdom has the George Bush wants to put a justice on the Supreme Court who will overturn Roe v. Wade, which seems like an “advocate” type judgement to force social change, but a recent ABC news poll has a large majority of America against overturning Roe v. Wade, so apparently America is now comfortable with even some of the most controversial “advocate” judgements from the Warren court.

Interesting sidenote 2, the Supreme Court has declined to hear an appeal on gay marriage and it seems to open the door to allow states to legalize gay marriage if they want.