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SUNDAY, MAY 21, 2006
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EDITORIAL

Parker makes headlines while Nabers does job

Alabama Supreme Court Associate Justice Tom Parker is a man with few opinions of the sort justices are paid to write, but many of the sort that garner cheers at political rallies.

He bills himself as a conservative. He is not.

Low-key incumbent Chief Justice Drayton Nabers arrives at his office at 4:30 a.m. and proceeds to the unglamorous job assigned by our Constitution to the judicial branch: applying law, not making it. That's what conservative judges do.

Justice Parker, vying to ratchet himself into the chief justice's seat, is in the business of attracting attention. That business is a threat when applied to the judiciary's task. Chief Justice Nabers, however, is in a below-the-radar sprint that, if not sidetracked June 6, could make the state's judiciary the pride of the citizens who sustain it.

Mr. Nabers' decisions make good bedtime reading. He starts with the law as expressed by the Legislature, by the people through the Constitution, or as determined by a higher court. He explains the facts. He applies the law to those facts. His written decisions rarely are surprising.

To use Mr. Nabers' words, he is "hopelessly dull." He understands that a judge scrambling for attention is not a good judge.

The chief justice believes responsible judges apply the rules. They do not make them.Sound familiar? It should. That's a view stated with mind-numbing regularity by former Chief Justice Roy Moore and Justice Parker, even as they flout it.

Substantively, Chief Justice Nabers' views are not much different than those of Justice Parker. In forums outside his political campaign, he has said the U.S. Supreme Court's Roe vs. Wade decision was "a travesty." "The greatest destroyer of peace today is abortion," he said.

After attending Yale Law School he clerked for U.S. Supreme Court Justice Hugo Black. Despite Justice Parker's efforts to paint this relationship as a negative, Justice Black was one of the few justices in his era to argue that the "right of privacy'' — a right never mentioned in the Bill of Rights but which is the foundation of Roe vs. Wade — was an example of judicial overreach.

"I believe so deeply in the rule of law that I see only two alternatives when faced with a repugnant precedent. Either I follow the precedent, or I should step aside."

Contrast that with Justice Parker's conduct when faced with another hot-button case. He recused himself, then bashed his colleagues in one of his few written decisions, one he wrote for the op-ed section of The Birmingham News.

Justice Parker would ignore disagreeable precedent and force the U.S. Supreme Court to revisit the issue, hopefully with a more palatable result the second time.

"Chaos." That is Chief Justice Nabers' explanation of what would happen if Justice Parker's philosophy takes root in the state's judicial system.

Mr. Nabers explains the chaos with an example closer to home. What if every circuit court in the state ignored Alabama Supreme Court precedent? What we would have is a complete loss of predictability. Businesses would have no way to know if a Morgan County court would limit punitive damages as directed by the Supreme Court. A Limestone County farmer could not know if a local circuit judge would enforce a property tax ruled unconstitutional by the state Supreme Court.

Returning to the state's favorite litmus test, a third-trimester abortion banned by the U.S. Supreme Court could be approved by a Madison County judge. How many abortion clinics would that attract?

Even duller than Mr. Nabers' low-key judicial philosophy is his administrative ability. Without headlines, his initiatives leapfrogged the state's judiciary from being dead last in efficiency to being among the most efficient in the nation.

Chief Justice Nabers' judicial philosophy isn't showmanship. He works hard and chooses to listen to the Legislature and higher courts rather than preach to them. And he understands, as only a true judicial conservative can, that a judge who thrives in the spotlight should turn in his resignation before the light comes on.

THE DAILY recommends Chief Justice Drayton Nabers in the Republican primary for a full term to lead the state Supreme Court. The winner will face Democrat Sue Bell Cobb, a member of the state Court of Criminal Appeals, in the November general election.

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