"Special" to the Oregonian

I always love it when I open the Sunday Oregonian editorial page and see the byline of University of Oregon professor Garrett Epps, because I know I'm going to be treated to a thousand words or so of condescension, illogic, straw man arguments, and erratic swerves off the road to offend conservatives.

His piece today did not disappoint. He argued that a judge should not care about popular sentiment when deciding a constitutional question, and conservatives who are screaming about Judge Mary Merten James overturning the desires of 61% of the voters misunderstand the role of the courts.

Well, I'll deal with his rather lame argument in a minute. But first I just HAVE to point out a glaring faux paus in his opening paragraph. He sets up a football analogy: a receiver in the end zone dives for a catch and hits the turf.

Epps writes "Touchdown! No! Fumble!"

An ivory tower metrosexual professor like Epps really should be careful about using football analogies. You can't fumble in the end zone, you dumb dumb. It's either a touchdown or an incomplete pass.

I have to admit some guilty delight in his failed football analogy. I envision a nerd watching a football game, trying a little too hard to prove he's one of the guys, only to confirm to every one else watching that he is, after all, just a hopeless dork.

So what does the dork do when guys shun him? He insults them to his dorky friends. And that was the entire point of Epps op-ed piece, billed as "Special to the Oregonian."

His entire argument was built on disproving a position that I've never heard anyone take - a classic straw man. He writes that conservatives think:

"Any judge whose decisions are unpopular ..... is a judicial activist or is legislating from the bench."

And he goes on to prove this is wrong, arguing that the role of the judge is to decide constitutionality, regardless of how popular or unpopular the law in question is.

The problem of course is that no serious adult ever took the position he tears apart. But it does afford him a prominent place to cast some broadsides and insults at conservatives who criticize Judge James' decision and who want her recalled. And the Oregonian is happy to oblige, by devoting 70% of the front page of the editorial section to his juvenile arguments, complete with a large graphic showing a judge with a gavel, dressed in a referee uniform.

No, Professer Epps, conservatives don't think it is activist simply to overturn a law passed by a vote of the people. Conservatives think it is activist when a judge:

1) Has a conflict of interest in the question at hand (Judge James owns a parcel of real estate about a half mile from a pending Measure 37 claim, and in her ruling she allowed one plaintiff standing due to the fact their property would be effected because of a Measure 37 claim a mile away.)

2) Knows beforehand that the desired outcome is to get rid of the law;

3) Concocts the most tortured, illogical and ludicrous legal arguments to justify the decision, arguments that if applied to dozens of other existing laws would result in their repeal.

THAT is what we call activist, Professor Epps.

Epps argues that perhaps Judge James' decision was wrong, but the forum for that to be decided is in the higher courts, where perhaps the decision will be overturned.

That's not good enough. There are hundreds of already granted and pending Measure 37 claims that are now on hold for two years or so while this works its way through the Oregon Supreme Court. There is a tremedous human and financial impact.

We are supposed to just shrug our shoulders when a judge makes a ruling that is clearly not just erroneous, but fundamentally dishonest?

What if a Circuit Court Judge in Harney County were to rule that Oregon's land use laws were unconstitutional, because they violate Article I Section 18 of Oregon's Constitution, which says that "Private property shall not be taken for public use .... without just compensation."

Would Garrett Epps think THAT judge was activist?