A Republic, if you can keep it.

At the close of the Constitutional Convention of 1787, as the delegates departed Independence Hall, a woman stopped Benjamin Franklin and asked, "Well, Doctor, what have we got—a Republic or a Monarchy?"

“A Republic, if you can keep it,” Franklin replied. (Bartleby.com)

I thought of that a couple of weeks ago as I read the opening of Howard Mintz' article in the May 22 edition of San Jose Mercury News:

Lifelong Republican finds himself unlikely hero of gay rights activists

California Chief Justice Ronald George could have taken the easy road in the legal conflict over gay marriage.

But as a crowd gathered outside the state Supreme Court's headquarters last Thursday morning, anxiously awaiting a ruling on the fate of same-sex marriage, George had already decided that the time was ripe for his court to make the hard decision and rewrite California's civil rights landscape.

When the clock struck 10 a.m. and the Supreme Court released its decision, George knew his court had made history.

"I certainly couldn't help but think that," George said in an interview this week in his office, cluttered with stacks of papers on desks and the conference table where the seven justices meet every Wednesday.

The 68-year-old George penned the 121-page ruling striking down California's ban on same-sex marriage, opening a new chapter in this era's most wrenching civil rights battle. The 4-3 decision, which George calls the toughest of his career, was announced as the chief justice was in his office, hosting a television crew from New York filming a documentary on the death penalty.

Now the ruling will define his legacy as chief justice. Already one of the most powerful judicial figures in California's recent history, George shrugged off the possibility of a political backlash by finding the state's gay marriage ban unconstitutional.

He assigned the task of writing the majority opinion to himself as he typically does in contentious cases. He would take the heat. He dismisses the suggestion he thwarted the will of the voters.

"Basically, it comes down to the question of when is a judge shirking his or her responsibility by not acting," George said.

Just days after issuing the decision, George appeared to know it by heart. As he discussed the outcome, he jumped from his chair to retrieve a dog-eared law book, yellow Post-its jutting from the pages. He flipped to Perez v. Sharp, the equally historic California Supreme Court ruling outlawing a ban on interracial marriage in 1948.

Read it all here and weep.

The good news is that California voters can indeed (as we did with Rose Bird and her cohorts in 1986) remove Supreme Court justices who have proudly shirked their duty by creating law, rather than judging. Chief Justice George is up for re-affirmation in 2010.

But while removing him from office would be a just thing indeed, the question is whether the damage he has afflicted upon California and the nation can be repaired.