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Bench Marks 

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It isn't easy being a judge these days. Vermont Supreme Court Justice John Dooley III made that clear April 16 at the University of Vermont. A crowd of about 200 packed UVM's Memorial Lounge for his talk, which was part of a daylong symposium, "Ethics in Public Life," honoring political science professor Alan Wertheimer on the occasion of his retirement.

Dooley's session was entitled "Gay Rights and Judicial Activism: The View From the Bench." The Justice, who was appointed to the state's high court in 1987, has been a controversial figure, especially since he participated in the 1999 Baker decision that led to civil unions. In spite of vocal opposition from conservatives, he was recently retained for another six-year term. President Bush indirectly referred to Dooley in a February statement supporting a Constitutional amendment defining matrimony. The prez accused "activist judges" of making "an aggressive attempt to redefine marriage."

Charges of judicial activism have been lobbed at justices a lot lately, Dooley noted, from both the right and the left. This demonizing of the judiciary has even escalated to acts of violence against judges and their families. But Dooley didn't really understand what "judicial activism" means, he said, until the president singled him out. That inspired the justice to research the topic.

Cognizant of his crowd, which included a number of visiting scholars from Ivy League institutions as well as several prominent players in the original civil unions debate, Dooley painstakingly analyzed his findings on topics such as precedence and methodology. He concluded that under the terms he'd laid out, the Baker decision didn't qualify as judicial activism.

But then he added that in the current climate, these academic standards are beside the point. "Here's what I think it's really about," he said, and listed three factors he believes are behind accusations of judicial activism: 1) a ruling involves sex; 2) a ruling involves equal protection; 3) the person making the charge doesn't agree with the ruling.

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