HOLMBERG: Activists–gay or otherwise–don’t become judges.

Posted at 12:24 AM, May 16, 2012
and last updated 2012-05-16 12:58:55-04

RICHMOND,Va. (WTVR)--I’ve known Tracey Thorne-Begland for years. He’s a great prosecutor and person. I believe he’d be a fine judge. A fair one.

In one way, it’s another embarrassment for the state that conservative legislators shot down this medal-winning former Navy bombardier.

“It is hard to think about what happened at the General Assembly and not conclude that is a form of bigotry,” said Richmond Commonwealth’s Attorney Mike Herring, Tracey’s boss.

Delegate Bob Marshall, who led the smackdown, underscores that with his comments about Tracey’s sexuality, his relationship with his partner and his position as  “an aggressive activist for the pro-homosexual agenda.”

But here’s an interesting thought. Marshall pointed out that he opposed Tracey not that because he’s gay, but because of his activism for gay rights.

An activist is defined as “an especially active,  vigorous advocate of a cause, especially a political cause.”

And I have to agree Tracey has been an activist for gay rights.

As a Navy lieutenant haunted by discrimination, he came out about his sexuality on ABC’s Nightline, knowing he’d get discharged so he could fight the policy. He’s been vocal ever since on gay marriage, gay adoption and parenting. Two years ago he wrote an editorial in Times-Dispatch against don’t ask-don’t-tell, retelling the Nightline story.

He was one point of the spear against gays in the military, just as Rosa Parks and the lunch counter protesters were the spear points for civil rights.

Historically, these point people, these activists who get arrested or discharged or beaten for the cause - don’t become judges. Imagine an abortion rights demonstrator being arrested, or a gun rights supporter in handcuffs, later being nominated for a judgeship.

The scholars who defend them become the judges, like Thurgood Marshall. They’re  ADVOCATES, defined as those “who speak or write in favor of  position, to urge by argument; recommend publicly.”

[Take our web poll at the bottom of the page: Do you think Thorne-Begland is an activist or advocate]

No one tangled with the Supreme Court as much as Marshall did before he was appointed himself. Ruth Bader Ginsberg was certainly an advocate before she became a judge. Check the histories of other judicial legends, like Oliver Wendall Holmes. Advocates? Sometimes. Activists? No.

Kevin Burke, a Minnesota trial judge and president of the American Judges Association, points to powerful advocates like Marshall, Ginsberg and the lesser-known Raymond Pace Alexandria of Philadelphia who became judges, but he was also left searching his memory when we talked about activists becoming judges.

He believes it’s likely there were anti-war protestors and civil rights demonstrators back in the ‘50s and ‘60s who wound up on benches. And he pointed to Victoria Kolakowski, believed to be the first transgendered judge in the country (Superior Court, Alameda County, California), but a search of her bio indicated plenty of hard legal work and no activism.

Perhaps a closer example Burke provided is a lesbian rights defender opponents called an activist when she came up for a family court judgeship in Middlesex, Massachusetts. Despite their protests, and a vote by the Governor’s Council, Massachusetts governor Deval Patrick voted Maureen Monks in.

There’s no question there have been activist judges after they’ve been sworn in. But Judge Burke generally agreed that activists don’t get nominated for judgeships.

“It says more about the people who pick the judges,” Burke said. “They tend to be conservative, and I’m not talking politically.”

Even a hint of an agenda can cause trouble on top rung of the judicial ladder. Remember how Sonia  Sotomayor’s Supreme Court confirmation endangered by her “wise Latina woman” statement?

But, as Mike Herring told me, while the activist argument makes for an interesting discussion, in this case it was “just a cover for a vote to deny a gay man a bench.”

He’s right. Some of those who voted against Thorne-Begland said they did so at the urging of constituents and conservative family groups.

And yet, the activist argument is a legitimate one.

If you don’t want your foot to slip on the bottom rung of the judicial ladder, don’t get arrested or make a scene.

Work behind the scenes, apply the law, support the point of the spear as an advocate.

In the end, the advocates are the ones that slowly adjust the course of our society. Yes, the points of the spear play a key role, and they can still climb the political ladder.

But you can’t be both.

Because while we all kind of know Lady Justice isn’t really blind, we don’t want her to be all fired up.

That’s my take. Please post yours.