Judgment call - federal judiciary activism in reforming state courts

Judgment Call

DALLAS--Judicial activism has taken a new twist with the federal judiciary's attempt to "reform" the state courts. It goes like this: If judges are engaging in giving law, that means they're representing the people. And if they're to represent the people, they have to be representative of the people--which nowadays means demographically representative.

On one level this is juicy humor. A less "representative" body than the federal judiciary is seldom encountered this side of the Politburo or the National Football League Management Council. Yet, with no sense of shame--rather, one of pride--federal judges have been ordering states to guarantee the election of black and Hispanic judges through judicial reapportionment.

The federal jurists' tool is the Voting Rights Act of 1965, whose purpose was to clear away barriers to the exercise by blacks of their constitutional right to vote. As liberalized in 1982, the act now lifts from voting-rights plaintiffs the burden of proving intentional discrimination; all they must do is show that minorities have a tough time getting elected. And in 1987, the Sixth U.S. Court of Appeals made the momentous discovery that the act applied to elections not just for legislative and executive posts but for judgeships as well.

So the federal courts set to work, and ordered a special election in Mississippi that seated four black judges. Louisiana is currently trying to reform procedures for Supreme Court elections to comply with a court order. Similar suits are pending in other jurisdictions.

Texas, with large black and Hispanic populations, has been particularly beset. Earlier this year, Judge filemon Vela of Brownsville threw out at-large election of state appeals judges in South Texas. The area served by the appeals court, Vela observed, is 46 per cent Hispanic, yet one lone Hispanic judge sits on the court itself. The judge suggested that single-member appellate districts would be a good thing. Nothing definite has yet been decided.

Another Texas decision, of much more sweeping import, came in early November. The at-large election of district judges in nine urban counties, including Dallas and Harris (Houston), had been challenged in a suit filed by the League of United Latin American Citizens. U.S. District Judge Lucius Bunton III, in a 94-page opinion, ordered that non-partisan judicial elections be held in May, with judges in the urban counties elected from community-based districts. The Fifth U.S. Circuit Court of Appeals set aside Bunton's order for early elections, but the Texas legislature will, at a special session this spring, consider complying with Bunton's demand for overhaul of the judicial selection process.

The U.S. Supreme Court has so far declined to interfere with what the lower courts are doing in the sphere of judicial reapportionment, and I have not noticed that many laymen, or even judges and lawyers, yet appreciate how serious this matter is. The judiciary is coming to be regarded as just another entitlement program. Insofar as they can, Texas and the other states covered by the Voting Rights Act are expected to carve out safe seats for minority jurists. What is at stake here is racial preferment with no justification other than the broadening of job opportunities for minority lawyers. As one Hispanic Dallas Democrat notes, the case "casts a die for all jurisdictions with large minority populations, from New York to California."

Why aren't there more minority judges now? For one thing there aren't, or haven't been until recent times, all that many minority lawyers. Some voters may decline to vote for a black or Hispanic candidate, but experience in Texas indicates that number to be relatively small. The Doug Wilder Principle--a strong minority candidate finds strong support among whites--operates as effectively in Texas as in Virginia. There are three black judges in Dallas County, all of them Republicans. State Supreme Court Justice Raul Gonzalez, a Democrat, enjoys massive support from whites in both parties. Why? Because Gonzalez is one of the court's ablest (and most conservative) members--a judge of massive dignity and character. (If George Bush ever decides to add an Hispanic to the Rehnquist Court, he should seriously consider Gonzalez, and very possibly he should consider him anyway, on his own considerable merits.)

For now, the question is, how can we keep the state courts from becoming affirmative-action arenas? First, fight in court. There is in these matters a diffidence among whites--the someone-might-call-us-racists thing. But mutely, meekly letting the federal courts carve up state judicial systems into what in effect are tiny fieldoms risks the debasement of justice. One Judge Roy Bean was quite enough for Texas. Nor should we overlook the folly of suggesting that a judge--as Bunton and Vela suggest--somehow "represents" the masses. To represent is to speak for. A judge represents no one and nothing, save the Law. But, then, that view stands the methods of Justice Brennan et al. on their head. It compels modesty and a sense of responsibility to that which is larger than the judge himself.

We are not at the end of this by any means, but already the scenery grows depressing, and danger crackles in the underbrush. If the Supreme Court won't act, Congress must be exhorted to do so. If that fails, the temptation will be strong to take the judiciary out of the election process altogether--to institute "Missouri Plan" systems where judges are appointed. The effect of this on entitlements is hard to predict; the consequences for justice can only be positive.

Mr. Murchison is a columnist for the Dallas Morning News.

COPYRIGHT 1990 National Review, Inc.
COPYRIGHT 2004 Gale Group