Sunday, October 09, 2005

Trouble With Judges

Few things in politics truly get under my skin. If John Kerry would have won the Presidential Election in 2004, I would have had some concern over his intentions in Iraq; but I would have shrugged and known for a fact that the great bureaucratic behemoth of government would have continued on with little or no noticeable deviation. Judges are becoming another story altogether. They are an odd fit in our democracy. In my eyes, we the people are giving way too much power to the last kind of people that should have any power at all, lawyers.

I made one post about the Judge's ruling in the Terry Schiavo case, expressing agreement. Many pundits, including Glenn Reynolds and Ted Olsen expressed disappointment, dismay, and sometimes outrage at Representative Tom DeLay's threatening remarks directed toward the judiciary at that time.

DeLay issued a statement asserting that "the time will come for the men responsible for this to answer for their behavior." He later said in front of television cameras that he wants to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

I whole-heartedly agree with Mr. DeLay's characterization of the judiciary but not for the same reasons. Clearly, DeLay's concern is for a judiciary that "thumbed their nose at Congress and the president". Thumbing one's nose at Congress and the President is almost a redeeming quality. It's when members of the judiciary purpose in their hearts to circumvent or thwart the democratic process on the flimsiest of constitutional interpretations that legal recourse against them becomes all too necessary.

Enter Patricia Yim Cowett, Superior Court Judge, bane of democracy, and enemy of the people. Ok, perhaps she's not all that, but I can't help but question her motives regarding the voter approved Proposition A (pdf) and the transfer of the Mount Soledad cross and memorial to the Federal Department of the Interior to maintain as a national veterans memorial.

There has been a cross at Mount Soleded National Park since 1913, but it has not always been a war memorial. After the previous cross was destoyed by a wind storm in 1952, the City Council of San Diego granted permission to the Mount Soledad Memorial Association to erect another cross. In 1954, the current 43 foot high cross was erected and dedicated to veterans of World War I, WWII, and Korea.

The lawsuits to have the cross destroyed or otherwise removed began in 1989 by a busy-body atheist named Philip Paulson. You think busy-body is a cheap shot, just so many extra words thrown in to disparage Mr. Paulson? Philip Paulson is a self-proclaimed "Church-State Activist" according to his name and title as a signatory to the Humanist Manifesto III (pdf). He brought a lawsuit against the City of San Diego to solve a problem that no one else is complaining about. He is so obsessed with the cross on Mount Soledad, he applied for and obtained a permit to assemble at the area around the cross on Easter morning in 1996, for no other purpose than to stick a finger in everyone else's eye. Like I said, a busy-body with way too much time on his hands.

Having said all that, the real villain of this story is Judge Patricia Yim Cowett. Where Paulson is a mild agitant and general muckraker, Judge Cowett has real power, the power to turn a judicial district into a dictatorship. On July 13, prior to the election that would see Proposition A pass or fail at the hands of the voters, Judge Cowett was all in favor of this issue being decided by the democratic process.

"This is a proper subject to place before the voters," Judge Patricia Yim Cowett said after listening to oral arguments. - SD Union Tribune

The judge went on to forewarn that a change in the way the city parkland was used could result in a two-thirds requirement for passage. Could that have been a little hedging for her pre-judgement of the case? Approval for Proposition A ("As it is, Where it is") was polling between 60 and 67 percent right up until the the eve of the election. In fact, when Judge Cowett confirmed the two-thirds requirement just five days prior to the election, my Councilmember, Jim Madaffer, wasn't sounding very optimistic.

"I think it's tough to get 67 percent of people to agree what color the sky is," Madaffer said. "Two-thirds is almost insurmountable odds."

I must admit that even I was surprised when the election results came back on election night showing Proposition A had passed with a 76 percent majority. For those that think we are all just right-wing, fundamentalist bible-thumpers out here, keep in mind that all conservative mayoral candidates received a total of 56 percent of the vote, while candidate Donna Frye (D) received 43 percent on the same ballot as Proposition A. In retrospect, I shouldn't have been all that surprised at the Prop A results because 76.6 percent of the voters approved a similar measure (Proposition F) to save the cross on Mount Soledad in 1992. The cross and memorial on Mount Soledad are not just a passing fancy to a large majority of San Diegans. Fellow San Diegan, Lt. Smash, illustrates why the Mount Soledad cross fits right into the character of this city named after Saint Didacus (Diego) of Acala (hat tip: SMASH in comments).

After all that talk about how "proper" it was to bring this before the voters and the level of approval required to pass the measure, Judge Cowett has now taken the law into her own hands by declaring Proposition A unconstitutional.

Cowett ruled that the donation of the cross to the federal government to be the centerpiece of a veterans memorial, as San Diego voters approved in Proposition A in July, is an unconstitutional aid to religion.

I'm not a judge or even a lawyer. Hell, I'm a just a high school drop out with a little free time and a printing press in the form of a blog. However, even I know that Cowett's characterization of the ruling is simply and obviously wrong. The donation of the cross to the federal government to be the centerpiece of a veterans memorial is not an unconstitutional aid to religion. The donation of the cross to the federal government is the manifestation of people using their democratic franchise to specify how their City would handle a land-use issue. Voters make such decisions all the time, for all kinds of groups and causes. Sometimes voters approve land use for private developers and other times voters reserve land for environmental preservation. Now, for the second time in 15 years, San Diego voters have overwhelmingly declared that the cross on Mount Soledad should remain where it is, as it is; and they have demonstrated a willingness to grant overwhelming approval of any means to that end.


Blogger SMASH said...

Great post!

One minor historical quibble: San Diego was not named for Saint Juan Diego (beatified in 1990 by Pope John Paul II), but for Saint Didacus (Diego) of Acala, canonized by Pope Sixtus V in 1588.

8:22 AM  
Blogger Terrie said...

Welcome back to the blogosphere, Indigent Blogger! You have been missed.

12:56 PM  
Blogger luckent47 said...

first thing i saw out of the window jan 1 1985 was the sun coming up behind this cross.
if you dont defend it,they think its theirs.
california dreamin'...

8:54 PM  

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