"It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed. Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them."(It's funny that you don't hear conservatives complaining about activist judges when they overturn duly-enacted ordinances restricting gun rights, or when they favor the constitutional rights of corporations to buy unlimited amounts of political advertising, but that's another issue.) What I want to talk about here is the validity of the criticism of judges who substitute their views of Constitutional rights for the democratically-elected legislature's judgments of what the people want. And what I want to say is that that criticism has a substantial amount of force. The doctrine of judicial restraint suggests that judges should think very carefully before overturning acts of Congress. Not only is it presumptuous for a single judge to assume that she necessarily knows the limits of legislative authority better than the legislature, it also undermines fundamental notions of democracy for appointed judges to overturn the people's will. Note that I'm not saying that judges should never overturn legislation that they think is unconstitutional. (I'm also not saying that Judge Phillips was wrong in this particular case.) What I'm saying is that judges should be very careful about declaring any statute unconstitutional. I'm also saying that the argument about undermining democratic institutions is probably the strongest argument that can be made against judicial activism. It should be recognized as a powerful argument. It would be better for Congress to decide controversial questions like whether gays can serve openly in the military, because the decisions of Congress are more likely to accepted by the public, and because legislators who make unpopular decisions can be easily removed by the voters.
But, and here comes the very BIG BUT, here is what I would say to the 43 Senators who today prevented a vote on a defense authorization bill because it included a provision, already passed by the House, that would have eliminated the military's don't ask, don't tell policy legislatively: Stop complaining about judicial activism. Stop talking about judges thwarting democracy. You no longer have the right to complain about activist judges, because you just did something worse than any liberal judge could do, and without any support in the Constitution. A solid majority of both Houses of Congress was ready to allow gay soldiers to serve openly in the military, and you activist Senators who do not have the votes to command a majority just prevented that from happening by yet another abuse of the Senate rules. So Tony Perkins, if you want to leave it to Congress to make these decisions, then you ought to support allowing Congress to take a vote on the issue. It is no wonder that judges have to make the law in this country, when legislators either cannot or will not do so, whether they have acted for political gain, or whether they have taken advantage of a procedural rule to make a principled decision to advance a minority position over the will of the majority.
Either you believe in democracy or you don't. Either you respect the legislative process enough to allow an up or down vote on an issue, or you let judges decide it. If you want to exercise the courage of your convictions to take a principled stand regardless of what the majority of the chamber wants, then you'd better start respecting those judges who also take a principled stand regardless of what is politically popular. What you can't do is complain about judges thwarting democracy, and then thwart democracy yourselves.
(photo of Judge Phillips from the New York Times)