Elect Fair and Impartial Judge to Josephine County Court
By Patrick Kelly
This Fall, Josephine County voters will have the opportunity to determine who will serve them in two separate judicial races in Josephine County. My good friend and colleague, Jason Hayward, is on the ballot this Fall for Josephine County Circuit Court Judge, position 4. His opponent is Judge Sarah McGlaughlin. The purpose of this article is to encourage you to vote for Jason and invite you to ponder some important principles that relate to your choice this Fall.
Folks often want to discuss with me the Constitution, or rather, their concern that the Constitution is under threat. While the Constitution appears to be universally revered in our community, I have learned that perhaps too many in our community do not understand the role of the judiciary as the first line of defense to preserving the Constitution. I’d like to take the opportunity here to discuss the role of judges as guarantors, or guardians, of our constitutional rights.
First, a little background. What is the judiciary? The judiciary is the part of our country’s government that is responsible for its legal system, including all the judges in the country’s courts.
Under the separation-of-powers doctrine, the judiciary shares power with the executive and legislative branches of government. The judiciary is delegated the duty of interpreting and applying the laws that are passed by the legislative branch and enforced by the executive branch. There is a federal judiciary for the federal court system and a state judiciary for the state court system known in Oregon as the Oregon Judicial Department or Branch. Whether on the federal or state level, the concept is the same. The judiciary is an equal branch of government with the executive and legislative branches.
Concerning the judiciary’s role (or a judge’s role) in upholding the Constitution, consider President Andrew Jackson’s words.
All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary. -Andrew Jackson
I’d like to share some observations from President Jackson’s quote.
- The rights secured to citizens must be guaranteed by the judiciary. Notice that Jackson did not say that our rights are secured by the government generally, or by the President, the military, or by lawmakers in the legislative branch nor even by law enforcement officers from the executive branch. Carrying that reasoning forward further, our rights are not secured by the city council, board of county commissioners nor the school board. We are all certainly grateful for individuals who seek to serve, or serve, in those capacities, but at the end of the day, judges within the judicial branch of government interpret the law. Judges guarantee that the letter and spirit of the Constitution are revered and judiciously implemented in our lives. With this in mind, I invite you to consider whether you personally invest as much attention to judicial elections as you do to other races?
- Independence empowers a judge to guarantee constitutional rights. Judges are to make impartial decisions based on evidence according to the law. If judges are seen merely as politicians in robes, then the political fire that engulfs the executive and legislative branches will consume the judicial branch and the Constitution with it. The executive and legislative branches are subject to party politics and meant to be to some extent. The judicial branch, however, is ideally not supposed to be burdened by political wrangling. Voting for judges merely because they are a member of a particular political party is short-sighted and endangers the individual liberties of everyday Americans. This is why judicial races are labeled as “non-partisan.” A judge subject to partisan political forces is not independent. Though judges can be a member of a political party, hold their own political views and speak to a political party gathering, they cannot promise to support a political platform, answer to a political party nor promote any party in connection with their office. Some judges may identify or be identified on the ideological spectrum of liberal to conservative.
However, judges’ allegiances must ultimately be to the Constitution. We need to trust that our judges will listen, reason, and decide cases according to the Constitution, not personal political preferences or the interests of their own campaign supporters. It is a sacred trust.
- Virtue fortifies and reinforces a judge’s commitment to guarantee constitutional rights. How can a judge be independent without virtue? Virtue can be defined generally as moral excellence. In the context of judges, it may be more accurate to define virtue as moral courage or the ability to guarantee the constitutional rights of “the one” versus the desires and interests of the majority.
Former Supreme Court Justice Antonin Scalia taught that “A Bill of Rights that means what a majority wants it to mean, is worthless.” Sustaining individual liberties and constitutional rights is not always a popular enterprise, especially when passions run high, but judges ultimately are not politicians and they shouldn’t make decisions with popularity in mind. Virtuous acts are commonly performed when there’s nobody around to notice the act but the Almighty. Virtue is moral courage, not virtue signaling.
In addition to my remarks on President Jackson’s quote, I would like to emphasize my personal belief that the founders and drafters of the Constitution understood the value of a free press to preserve individual freedoms. They understood the necessity of independent and virtuous journalists and media to shine the cleansing light of transparency upon government. Journalism in our day, perhaps in any age, is not totally free, fair, unbiased, or responsible. However, when independent and virtuous writers and editors act in the public interest, the press can be a powerful force for protecting constitutional rights in the court of public opinion. The judiciary and the press function as two yokes steering our people and democracy upon the constitutional path. Our wagon may veer more to the left, re-center and move back over to the right at times, but so long as the courts and the press function properly to keep us on the constitutional path, our nation, state and county can avoid going over a cliff.
I hope that some of these principles I’ve shared will foster a better appreciation for the role that our judges play in guaranteeing our constitutional rights. On a daily basis, judges are making difficult decisions that affect the lives of those who appear before them. I have made those decisions in my past service as a Judge Pro Tem. I know that Jason has done the same during his eight years serving as a Judge Pro Tem also. While some may discount the importance of a decision on a small claims dispute, city code violation, traffic citation or eviction proceeding because either the dollar amount or the individuals involved aren’t considered newsworthy, I can tell you that these are matters of great consequence to these individuals.
Moving forward, I encourage you to invest more attention to judicial races. Think of it less as a contest and more as an opportunity to select your local guardians of the Constitution for all of our community’s citizens – even the ones you may disagree with. With that said, I am not saying your judges should walk on water or be otherwise perfect. Judges are people. Even judges make mistakes. What matters is a judge’s commitment to continually strive for perfection, knowing notwithstanding that he or she will not obtain it, but striving nonetheless to honor their role as your public servants. Without such men and women, the Constitution truly is under threat. I am confident that should the citizens of Josephine County elect Jason Hayward to serve as a judge, he will strive to be the independent and virtuous (morally courageous) judge that President Jackson speaks of so eloquently. E-Mail Jason Hayward: email@example.com
[BIO: Patrick J. Kelly has practiced law in Josephine County for over 40 years. He is a graduate of the Willamette University School of Law, class of 1979. His distinguished career includes the representation of the City of Cave Junction and the Grants Pass Irrigation District, serving as a hearings officer for Josephine County and the City of Grants Pass, and has previously served as a Circuit Court Judge Pro Tem. Mr. Kelly takes pride in helping others, clients and non-clients alike, in forging solutions to their challenges. He treasures the liberty of others as much as his own.]
© 2020 Patrick J. Kelly – All Rights Reserved
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