Parker: Nabers is "a nice man," but unelectable

Drayton Nabers' likely opponent in the Republican primary will be Justice Tom Parker, who was elected to the Supreme Court in 2004. Parker wasted no time in directing criticism at the Chief Justice.

Parker, who was in St. Louis on Thursday attending the Eagle Forum national conference, issued a statement saying he considers Moore "the rightful chief justice of Alabama because he was elected by the people." Parker said he would support Moore if he wants to run again.

Moore, however, is looking at the governor's race. George Hundley, chairman of the We Need Moore 2006 Committee, said Thursday that Moore will announce his
decision on whether to run Oct. 3 in his hometown of Gadsden.

Parker's statement did not address whether he would consider running for chief justice if Moore seeks the governor's office, but Parker said Nabers can't win.

"Drayton Nabers is a nice man, but his race for chief justice risks losing the seat to a liberal Democrat. Because Drayton was the architect of the highest tax increase in Alabama history — Amendment One — and did not support the Ten Commandments monument or Chief Justice Roy Moore, he is just not electable in Alabama," Parker's statement said.

It seems to me that Parker's criticism misses its mark. Let me count the ways.

1. On whether Roy Moore is the "rightful" Chief Justice of Alabama

Moore was the rightful Chief Justice, but like it or not, he was removed from that office under procedures outlined in the Alabama Constitution. For Parker to hold that Roy Moore is the "rightful Chief Justice" denies the constitutional authority of the proceedings that led to his removal. It also implies that Drayton Nabers is a usurper with no legitimate claim to his position. Is that really what Parker meant to say?

2. On Amendment One

As Gov. Riley's Finance Director, Nabers was indeed an architect of the tax and accountability package proposed under Amendment One and roundly defeated at the polls. If Nabers were running for Governor or state legislature, that transgression would certainly be an important consideration, along with his views on other public policy matters. As a candidate for Chief Justice, though, the far more relevant factors are his judicial temperament and philosophy. In word and deed, Nabers seems to have established himself as a mainstream conservative on both counts. In a Sept. 7 interview with Tim Lennox on APT's For the Record, Nabers discussed his judicial philosophy. Here's an exchange from that interview:

Lennox: "Do you consider yourself a strict constructionist of the Alabama constitution or the U.S. constitution?"

Nabers: "What every justice should seek to do is take the words of the law - or take the words of the Constitution - in accordance with their plain meaning, and try to apply them to the facts of the case. If you call that "strict constructionist," I'm a strict constructionist, but what I want to do is put myself - and I speak for the other justices on the Court, as well - under the laws that the legislature of this state has passed. We have a democratic system in this state, and the legislature is elected by the people to pass the laws and establish the policies that judges are chosen by the people to apply (those laws) in light of the facts presented in the cases that come before us."
...

Lennox: (after discussing an Alabama court opinion in an 1800's slavery case) "...if you are a strict constructionist, then a Supreme Court justice has no real power other than what the words say on the paper. Even if one of the justices believes in his or her heart that slavery was wrong, then oh well, that's what the law says, right?"

Nabers: "Well, you have a constitution that protects the liberties of the people of this country, and that constitution was not properly construed in the Dred Scott decision, but essentially, we've got to remember that we have a democracy, and the people of this state every four years elect a legislature, and they want the legislature to pass the laws that essentially establish the policies of this state in our legal system. They don't want judges to be policymakers. They want judges to apply the law. They want judges to interpret the law, and that is the role that judges should play in a democratic republic, which is what we have in Alabama and in the United States."

Lennox: "But, Mr. Chief Justice, just look back over the past decade or so, or two decades, and look at what the Alabama legislature has not done. It has done just the opposite, and it has left it up to the courts to decide so many of the issues."

Nabors: "Well, you don't like the choices that our people have made and our legislature has made. That is not a decision a judge should make. It is not up to us to say that the legislature has been wrongly chosen, and we're going to establish our laws. Judges cannot operate that way in a democratic republic."

Lennox: "Do you think that the legislature is passing off some of the responsibilities, though, to the judicial branch of government?"

Nabors: "Well, perhaps a law is not as clearly written as we would want it to be, because in the clash of interests within the legislature a compromise is reached and therefore words that are somewhat obscure are used, and judges, at that point, have to do our very best with the language that is given us in the laws, and apply that language."

3. On the Ten Commandments Monument and Roy Moore

Parker's contention that Nabers "did not support the Ten Commandments monument or Chief Justice Roy Moore" is inaccurate and misleading.

I don't know that Nabers has addressed Moore's monument specifically, but his position on Ten Commandments displays in general is virtually indistinguishable from those of Gov. Riley and former Attorney General Bill Pryor. Nabers stated that position earlier this year in response to two U.S. Supreme Court rulings regarding Ten Commandments displays in Kentucky and Texas:

I am disappointed in the Supreme Court of the United States’ ruling today in a Kentucky case prohibiting the display of the Ten Commandments. I do not find anything in the United States Constitution that prohibits a state government from publicly displaying the Ten Commandments.

Disregarding the role that religion has played in shaping our society and our laws flies in the face of well-established tradition. Indeed, as Justice Scalia wrote in dissent:

"Acknowledgment of the contribution that religion has made to our Nation's legal and governmental heritage partakes of a centuries-old tradition… Display of the Ten Commandments is well within the mainstream of this practice of acknowledgment. Federal, State, and local governments across the Nation have engaged in such display. The Supreme Court Building itself includes depictions of Moses with the Ten Commandments in the Courtroom and on the east pediment of the building, and symbols of the Ten Commandments 'adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom.'…The frequency of these displays testifies to the popular understanding that the Ten Commandments are a foundation of the rule of law, and a symbol of the role that religion played, and continues to play, in our system of government. "

I am heartened that, in a companion case from Texas, the Court upheld a Ten Commandments display. Here Chief Justice Rehnquist got it right:

"Of course, the Ten Commandments are religious -- they were so viewed at their inception and so remain. The monument therefore has religious significance. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the [Constitution]. "

By disallowing the Ten Commandments in Kentucky yet allowing them to be displayed in Texas, the Court sent confusing and contradictory signals. Justice Scalia’s dissent exposes the shifting sands on which the Court has based these decisions:

"What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

Our founding fathers anticipated that the judicial branch would be the “least dangerous branch of government”. When the Court departs from the plain meaning of the Constitution as written, it can become the most dangerous branch.

Like Riley and Pryor, Nabers agrees with Roy Moore that Ten Commandment displays are constitutional, but is unwilling to support disobeying a federal court order that conflicts with that view. From the APT interview quoted above:

Lennox: "Have you talked to Chief Justice Roy Moore since his removal from office?"

Nabers: "No, I haven't."

Lennox: "Would you like to?"

Nabers: "I like Roy Moore, and I would be pleased to chat with him."

Lennox: "You, of course, I believe, agreed with the decision that led to his ouster."

Nabers: "That whole process was handled by a number of judges along the way. I was not involved in it, and I presume that in their consciences and under the law, they did what they thought was right."

Lennox: "If you were told by a federal judge to do such-and-such, and you philosophically disagreed with it, would you feel you should disobey that order?"

Nabers: "I think that it took us 700 years to establish a rule of law in this country
and in England, beginning with the Magna Carta. And, it's by the rule of law I mean a judicial system where everybody is equal under the law and equally subject to the
law. I believe every American is subject to the law. I believe the President of the United States and the Governor of the State of Alabama and every judge and every elected official is equally, with every other citizen in this country and in this state, subject to the law."

4. On whether Nabers is "electable"

I can't speak for the rest of Alabamians, but any candidate who routinely quotes Russell Kirk is "electable" in my book.