On Monday, I posted about a new effort that I’m working on to vote no on William McGuiness.  I’ve got a website up and going at NoMcGuiness.com.  I must say that Blogger is quite convenient for these type of things.  I wanted to cover some more on the subject, because this election, we have an opportunity to push back at the Right.  In a very real way. Well, at least if you are in the First District.

But some background on William McGuiness.  You can find a profile here.  He was appointed to the Appellate Court in 1997 by Pete Wilson after serving in the Reagan Justice Dept. and a Superior Court Judge for a long time.  Now, I don’t have any problems with his qualifications.  I think he’s very qualified.  That’s not the issue.  William McGuiness made a terrible decision in In Re Marriage Cases, a decision that says that separate but equal is jolly ok with the California Constitution.  A decision that denies equality for a substantial segment of Californians.  That is not ok.

More in the extended…

Now, I would like to interject here that I believe the judiciary should be completely  independent of the voters.  The saga of Rose Bird should not be repeated.  But that’s the problem.  The only saga of Rose Bird is the saga of Rose Bird.  Rose Bird, along with Justices Reynoso and Grodin, was attacked from the Right over her decisions on the Death Penalty.  Rose Bird had a deeply held-conviction, a conviction that the death penalty was cruel and unusual punishment under the Eighth Amendment. It’s clearly a defensible position, but the majority interfered with the judiciary.  When these three Justices were booted, our Judiciary was thrown into a tailspin.  George Deukmejian appointed three conservative Justices, including Chief Justice Malcolm Lucas, who steered the California Judiciary away from the powerful traditions of Justice Traynor.

And again the Right pushed back in 1998. Anti-choice forces decided to pick a fight with Justice Ming Chin and Chief Justice Ronald George, both Republicans. They were “disappointed” with them because both of them voted to strike down a law that required parental notification.  They both remember that.  They remember that the Right challenges them, but the Left doesn’t.  And so, where the moderates would vote their conscience, vote for what they know is right, vote for equality,  and vote for civl rights, they have to consider the reaction of the Right.

This is no way to run our Judiciary. John Marshall, our first, and some would say our greatest, Chief Justice of the U.S. Supreme Court, envisioned a Judiciary that held a real check on the legislature.  In Federalist 78, Alexander Hamilton argued that Judges need to be independent in order to resist the oppression of the representative body:

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Thus, Hamilton argued, the Judiciary should be independent in order to protect the rights of the minority.  The power of judicial review is clearly countermajoratarian, but just as clearly, it is so for good reason. That the Constitution did not crumble at the time of Marbury is evidence enough that people understood that. And Alexis De Tocqueville clearly understood the oppressive power of the majority as well.  In fact, De Tocqueville argued that the majority could be more oppressive than a monarchy because the authenticity of public opinion granted more moral power than a Crown could ever grant. 

Our Judiciary needs to be independent of public opinion, free to make their own decisions.  Unfortunately, this is not the way of the California judiciary.  Here we have elections and judges are accountable to the majority, for better or worse. And, as discussed above, the Right has used this fact to dispose of Rose Bird, and to fire a warning shot across the bow of Justices in 1998.  The Right attacks the Judiciary in whatever ways they find convenient.  They have “Justice Sundays” in Washington, D.C. where they denounce “activist” judges who dare stand up for the rights of a  minority, such as Justice Kennedy in Lawrence v. Texas.  And all of this creates a Right-ward drift.  We put our faith in the Judiciary system, The Right puts a Boot in its Ass.

Thus, we need to push back.  If we continue to let the Right move the discourse, we will soon find ourselves in very uncomfortable waters.  Justice William McGuiness is only marginally more culpable in the decision in In Re Marriage Cases than Justice Parrilli, who concurred with the opinion.  McGuiness, however, actually claims authorship in this drivel(PDF). But in an independent Judiciary, that drivel would be beyond my protestations other than the appeal process. 

However, fortunately for us, Justice William McGuiness is up for election on Nov. 7.  This opportunity presents itself very rarely. By pushing this, we can send a message to all judges that they cannot sell out Equality, and the Constitution of the State of California, to appease the Right.

(Updated, b/c my first draft was pretty cursory. – promoted by SFBrianCL)

Do you remember Henry Billings Brown?  Probably not.  But you probably know about the decision that he authored in 1896.

Plessy v, Ferguson, authored by Justice Brown, upheld as constitutional a Louisiana law that required that blacks and whites be segregated on different railway cars.  This decision laid the bedrock for “separate but equal” treatment, holding that it is permissible to discriminate against people as long as each group is provided similar accommodations.  Justice Brown held that “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

After 58 years of living with “separate but equal,” the discriminatory concept was founds unconstitutional.  In Brown v. Board of Education, Justice Earl Warren wrote that separate facilities are inherently unequal.

You also may not know the name William McGuiness.  On October 5, 2006, 110 years after Plessy v. Ferguson, Justice McGuiness wrote an equally discriminatory court decision denying same sex couples the right to marry.  Justice McGuiness wrote that “By maintaining the traditional definition of marriage while simultaneously granting legal recognition and expanded rights to same-sex relationships, the Legislature has struck a careful balance to satisfy the diverse needs and desires of Californians.”  In other words, Justice McGuiness resurrected the unconstitutional concept of “separate but equal” and uses that concept to discriminate against same sex couples.

  On November 7th, if you live in the First District**, you have a rare opportunity to tell Justice McGuiness what you think of his recent decision.  Justices stand for election only once every 12 years.  I urge you to send a strong message to Justice McGuiness.  The year is 2006, not 1896.  We have learned our lesson that separate is never equal and our Constitution mandates that courts protect minorities from discrimination.

Vote No on Justice William McGuiness for the First District Court of Appeal.  Show him that authoring discriminatory court decisions have consequences.

** The First District consists of the following twelve Northern California counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma.