It was no surprise that Texas’s top officials denounced Judge Orlando Garcia’s ruling, on February 26th, striking down the state’s constitutional ban on gay marriage, and the ruling was bound to be appealed to the Fifth Circuit.
But as a post-script to the ruling, and before the Fifth Circuit’s ruling revives, the issue again, I was very surprised that Cruz lambasted “unelected federal judges.” My concern with Cruz’s comments is that they aren’t worthy of a constitutional scholar of his stature. The fact that federal judges aren’t elected is a longstanding battle cry of the far right, but Cruz knows full well that there is a reason why federal judges are not elected and have lifetime appointments. The reason is that the lifetime appointments insulate judges from politics.
Rick Perry, by contrast, did not include this particular comment in his own statement disagreeing with the ruling. He took a swipe at Washington: “It is not the role of the federal government to overturn the will of our citizens.” But he didn’t imply that federal judges should be elected. It was a misleading thing for Cruz to say, especially since conservatives will surely celebrate if the unelected federal judges of the appellate court reverse Judge Garcia’s ruling.