Last week, state and federal courts issued rulings on the legality of the actions of two of our elected chief executives, with diametrically opposed results. In Frankfort, Special Judge David Melcher ruled that Gov. Ernie Fletcher will not have to stand trial on political corruption charges until he leaves office or is impeached. That ruling is based on a wholly concocted executive immunity defense.
Meanwhile, a federal level court ruled that the Bush administration’s warrantless wiretapping program was unconstitutional and ordered an immediate halt. This came on the heels of a Supreme Court ruling that President Bush had overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.
What also makes these two ruling so noteworthy was the rationale for their rulings by each judge.
In federal court, Judge Anna Diggs Taylor rejected sweeping presidential authority by declaring “there are no hereditary kings in America and no powers not created by the Constitution.”
Contrast that with Judge Melcher’s rationale that “proceeding with a criminal case for official misconduct is presently outweighed by the time intrusion it would impose on the Executive Branch.”
But Melcher’s ruling was more than bad law, it was lawmaking from the bench, the very sort of “judicial activism” Republicans like Fletcher claim to loathe. In fact, Melcher’s ruling was firmly rooted in an unrelated footnote that Lambert himself recently added in an unrelated case that first offered the basis for such an “executive immunity” claim. Legal scholars and experts laughed at the argument at the time, and even recently retired Justice William Cooper called the footnote “inane.”
However, Melcher is just the latest example of the attempts by Fletcher to inject a scary political component into the state’s courts. It’s worth noting that Melcher himself was hand-picked to hear this case by Lambert and has ruled in Fletcher’s favor every time the matter has come before him.
While judges in Kentucky are elected by the voters, thanks to incomprehensible rules that financially reward judges to retire from their seat before their terms end, Fletcher gets to make temporary appointments (good through the end of the year) on six of 14 appeals court judges and three of seven Supreme Court justices.
Along those lines, last week also brought disturbing news concerning two of Fletcher’s Supreme Court appointees who themselves are locked in fierce campaigns to keep their seats in the November elections.
First, Fletcher recently appointed Louisville’s William McAnulty as a temporary justice following the early retirement of Martin Johnstone. Although McAnulty will serve about 100 days on the court (about 1/20th a full term), he was accorded a lavish swearing-in ceremony in the state capitol where 4,000 people were invited to celebrate in what many regarded as a taxpayer-funded campaign rally. McAnulty’s fall opponent, Circuit Judge Ann O’Malley Shake, refused to seek the temporary appointment, arguing rightly that she “didn’t want to go to an indicted defendant with my hand out.”
Last week also revealed that Justice John Roach, the man who served as Fletcher’s general counsel and provided him legal guidance during those first 18 months in office, until his appointment to the court (despite lacking judicial experience), was caught conducting a negative telephone poll where he asked voters if it mattered that his opponent, Circuit Judge Mary Noble, is “married with no children” or “soft on crime” and even asked for their opinion on the University of Louisville’s decision to offer domestic partner benefits — an issue that may come before the court. Never mind that it would be unethical for Roach, as a judicial candidate, to pursue any such themes during the campaign.
Former Chief Justice John Palmore, who has spoken out often this year about Chief Justice Lambert’s ham-handed actions, recently expressed concern over the growing politicization of the courts but is hopeful voters will take matters into their own hands in November and correct it.
Unlike the federal courts, which have been unwilling to allow a sitting president to run roughshod over the Constitution and the law, Kentucky courts have injected themselves straight into the political food fight, while confirming our worst belief that the powerful are above the law.
Sadly, while we’ve come to realize that good ol’ boy politics have become a cancer within the legislative and executive branches of government, it seems it’s finally spread to the judiciary, which had been the last refuge of good government.
Mark Nickolas is publisher of Kentucky’s most widely read political blog, BluegrassReport.org. Contact him at [email protected]