2004-12-17

Be careful what you wish for


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An attorney's editorial in today's Seattle Post-Intelligencer provides an important reminder that "activist judging" or lack thereof cuts both ways.

In the case in question, a mother was eavesdropping on a phone conversation between her daughter and her daughter's boyfriend who also happened to be a robbery suspect. The mother's testimony helped convict the boyfriend, but the verdict was overturned when the Washington Supreme Court ruled that the eavesdropping violated the Privacy Act.

In the author's opinion, upholding the evidence provided by the mother would have opened a new exemption in the Privacy Act, something which, if it had been done toward a philosophically liberal end would certainly have resulted in an outcry from the right. He also notes that the case has resulted in a public call for "more conservative judges." His point: you can't have your cake and eat it too!
The conservative approach means courts generally will not try to rescue overbroad statutes by reading them 'reasonably... If judges truly follow the conservative approach and limit their decisions to the law as written, there will be many more cases such as Christensen. The literal application of the law will lead to results that seem 'ridiculous.' In contrast, if people want judges to reach less "ridiculous" conclusions, they should be willing for judges to interpret the law more broadly ...

This is a great piece because it gets at a problem in our society that runs much deeper than the traditional liberal vs. conservative conflict. We have a consistency problem. I would go so far as to call it an integrity problem. Some want to pile on Bill Clinton but don't want the same model applied to GWB. Speaking of GWB, some can't seem to forget that he lost the popular vote in 2000 and at the same time can't seem to remember that he won it this year.

Personally, I want judges who are judicially conservative-leaning, ruling on what the law actually declares with some, but not much leeway in applying the intent of the framers of the law. You see, when a judge decides to change the law by taking it beyond its intended boundaries, we are helpless. It is our legislators' job to make, change and remove laws, and we can hold them accountable.

Finally, it just seems to me that letting your daughter date a criminal is a bad idea. I realize that when kids get to the age where they are interested in the opposite sex, it's time to start letting them have some freedom to make choices and experience consequences. I believe however, that I'd be stepping in with the "not under my roof" clause when a felon appears at the door to pick up my daughter.

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