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Douglas and the judges

07/17/03 12:00AM By John McClaughry
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(Host) Commentator John McClaughry reflects on Governor Douglas and the appointment of judges.

(McClaughry) Who is entitled to make the laws that Vermonters have to live by, the democratically elected legislature, or the Vermont Supreme Court?

At his July 3 news conference, Governor Douglas reopened this question in the context of seeking a nominee to fill a Supreme Court vacancy. Referring specifically to the 1997 education finance case and the 2000 gay marriage case, Douglas remarked that the Vermont Supreme Court could well profit from a dose of judicial restraint. The friends of liberal judicial lawmaking - notably Senate President Pro Tempore Peter Welch - were quick to express alarm.

Their game is to put pressure on Douglas to back off from any criticism of the Five Supreme Legislators, and to nominate a new justice who will march in lockstep with the rest of the court.

Vermonters need to recall that our Constitution is not the property of judges. It belongs to the people. It is the people's compact, declaring their rights, describing their chosen frame of government, and detailing the responsibilities of those to whom the people have delegated the power to manage public matters.

The constitution enumerates a number of rights. They are easy to find because the authors of that document spelled them out in at least fifteen places by using the sequence of letters "r-i-g-h-t." It is not the business of judges to invent new rights.

But that, of course, is exactly what the Supreme Court has done, in the Brigham and Baker decisions. One can support the principle of equal tax resources per pupil, or extending "most or all" of the privileges of marriage to gays and lesbians, and at the same time indignantly reject the notion that the Vermont Constitution requires the legislature to implement such policies.

Indeed, in the Brigham and Baker cases the state argued that there is no private Constitutionsl right of action for redistribution of tax resources for education, and that the Constitution does not confer any right to same-sex marriage. Those positions were not argued by crusty reactionaries, but by liberal Attorneys General Jeffrey Amestoy, now Chief Justice, and Bill Sorrell. In both cases, the Five Supreme Legislators ruled otherwise.

Deciding issues like school finance and gay marriage is the business of a democratically elected legislature. But it must be a legislature acting freely to express the will of the people - not a hostage of the court, with a judicial gun to its head.

Governor Douglas is on solid ground. To the radicals who want him to appoint another justice eager to decree progressive laws that elected legislators will not enact, he should reply with a firm "No." If they then want to make his refusal a political issue, he should say, "Bring it on."

This is John McClaughry, thanks for listening.
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