Balkinization  

Monday, October 27, 2008

More Political Football With Judges

Brian Tamanaha

Senator John McCain identified his legal priorities in an essay published today in the National Law Journal. The good news is that he promises to depoliticize the Justice Department, and to halt torture. The bad news is that, following what has become a Republican tradition, he demonizes judges:

Terrorists are not the only threat to public safety. Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.

Did you get that? "Judges who legislate from the bench" are a threat to public safety who "force our innocent citizens behind the barred windows of their homes..."

Who are these dastardly judges? You can guess:

None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission. Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion. I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals. I will appoint judges who will hold criminals accountable.

Demonizing judges is a cheap political trick. Since judges cannot respond to defend themselves, and judges are weak institutional actors who have no army and no money, to run against judges is political bullying. (Never mind that a substantial majority of sitting federal judges, including a majority of Supreme Court Justices, are Republican appointees.)

It is also irresponsible. The only capital judges have is their credibility. The cost of this tactic is a deterioration of our collective faith that judges try their best to apply the law. Without this faith, the rule of law cannot exist.

We all lose, conservatives and liberals (and everyone else) alike, when politicians indulge in attacks on judges.




Comments:

The only capital judges have is their credibility. The cost of this tactic is a deterioration of our collective faith that judges try their best to apply the law. Without this faith, the rule of law cannot exist.

This is perhaps the argument McCain should have made. One of the greatest threats to the rule of law are courts that ignore the rule of law to impose their own policies and thus destroy our faith that the courts will neutrally and fairly apply the law.
 

"Judges try their best to apply the law?"


Do we live in the same country? No they don't! They selectively enforce the law as they see fit! Why are both Obama and McCain on the Texas ballot, when neither of them met the August 26th deadline for being on the ballot? (As clearly stated in Texas law?). Thats about as clearcut as you can get, yet the Texas Supreme Court unanimously decided not to follow the law, and allow the two on the ballot. And we are suppose to respect these people?
 

I agree with you, of course, but I think this is like telling the tide to roll back. Politicians have been demonizing judges since Jefferson was president. It's cheap and it's cowardly, but then again, they're politicians.
 

You know, I don't have a problem with criticizing -- even "demonizing" -- federal judges if the criticism is valid or even coherent. They're political actors and it's silly to pretend otherwise. But what gets me is the utter vacuousness of the Republican attack -- "legislating from the bench"? "Impose their own policies"? C'mon. Anyone who's honest about the process knows that all laws -- all of 'em -- require some level of interpretation, and there will always be room for differences of opinion. All you can ask of judges is to try to be honest.

Yet jackass conservatives try to mislead people who don't understand the law into thinking that all judging is simply a matter of comparing the case before them to the written law, simple. That's the great disservice done by people like McCain, and what's worse, it's done with knowing dishonesty.
 

Brian,

I think the research you cite in your book (my copy of which is sadly not at hand) bears constant repeating: While GOP shills most often raise the hue and cry about politicized jurists, empirical evidence supports the claim that it's GOP-leaning jurists who are most easily predicted based on affiliation. Or do I recall the research wrongly? Either way, I think your statements carry a familiarity with such work as context in your mind when you write them, but that context is all too often lacking for your readers.

Peace,

rl
 

This comment has been removed by the author.
 

glennnyc:

Yet jackass conservatives try to mislead people who don't understand the law into thinking that all judging is simply a matter of comparing the case before them to the written law, simple. That's the great disservice done by people like McCain, and what's worse, it's done with knowing dishonesty.

Is it really too much to ask that judges read the Constitution and apply it as written? The examples are legion. Here are but a few classics:

> "right of the People" in the Second Amendment actually means "right of the States."

> "public use" means taking one citizen's property and giving it to another citizen who has better lobbyists.

> "interstate commerce" means anything we want it to mean.

> "taking" only applies if the government renders property completely useless, but not almost completely useless.

> There really are rights to abortion and public services to illegal aliens written in the Constitution if you rub your eyes real hard before reading between the lines.

> Article I's grant of the power to set rules for Captures and Article II's grant of CiC power to the President were really Article III grants of power to the Courts.

There is nothing honest about any of this. Nothing.
 

glennnyc: "Yet jackass conservatives..."

...seem to know when you are talking to them and step right up to do exactly that which you describe. Amazin', ain't it? ;-)
 

There really are rights to abortion and public services to illegal aliens written in the Constitution if you rub your eyes real hard before reading between the lines.

Wishing away the 9th again?
 

On a local plane, it would be interesting if the McCain campaign plank targeted specific jurisdictions whose judges routinely campaign, instead of making a bland generalization intended to mobilize factional support from the constituents who saw in the 2005 senate nuclear option on cloture the opportunity to force legislature compliance to presidential dicta. In sum, I see the campaign plank simply mostly as a contemplative aggregate of slogans to guarantee adherents continuity of the issue beyond looming elections.

For some reason, the views in the statement of the campaign plank reminded me of the savvy perfusing a recent article in The Hindu relevant to the nuclear treaty recently offered to India, wherein the India government sagaciously declares that Secretary Rice must bring with her to the signing ceremony the Presidential Signing Statement proving the executive will provide guarantees perhaps a little more firmly than congress' in the technology infusion area. Leave it to overseas partners to see through the veil of structural government to access the verities of how implementation of law occurs contemporarily. Granted, this parallel topic is from foreign policy, yet, it seems there is a similar disregard for the legislature underlying its numerous themes.
 

politically lost:

The Ninth Amendment guarantees unenumerated rights well established in US law and society.

Neither abortion nor a right for illegal aliens to obtain government services fall under that category.
 

Bart forgot to mention the part where illegal aliens are going to be imported and forcibly impregnated in order for the government to give them free abortions. In fact, I believe there is a proposal to put insemination chambers at Customs checkpoints for convenience. If the immigrant refuses insemination then they can just be plopped back on a plane.
 

The ninth amendment is the most difficult amendment to interpret. I don't think it was meant to protect legal principles only established in US law and society, but also the laws and practices inherited from Britain, as well as protection for institutional procedures developed in western society from before and since the constitution's enactment.

For example, I have long thought, though I don't know if it has been argued in US legal circles, that the ninth amendment may protect the right of doctors to self-regulate their profession, to some degree. Medical self-regulation is a basic priciple not enshrined in US law, but a general idea common to western societies. It might be argued that laws on abortion must be constrained by the ability of the collective membership of medical societies in the US to regulate the procedure themselves, as their ninth amendment right.
 

Rather than keep twirling all these footballs with one hand, mightn't our time be better spent exploring in more detail each candidate's shortlist for the Court? I'd like to know what const-scholars think of them - especially the women, from Elena Kagan to Diane Sykes, since even McCain would likely move to redress the court's current shortage of anyone but 60-something male attorneys
 

The Ninth Amendment means what Bart DePalma says it means, no more, no less.

How sad that liberal judges insist upon disrespecting the rule of law by repeatedly interpreting the Constitution in ways which Bart DePalma disagrees with.
 

"Bart" DePalma:

Is it really too much to ask that judges read the Constitution and apply it as written? The examples are legion. Here are but a few classics:

> "right of the People" in the Second Amendment actually means "right of the States."


"Straw man". No one has said such a thing. Minus ten points and no gold star for you on the board this week.

Here's a better example:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state,..." means "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of that state,..."

That one's so obvious even a fool such as yourself can see it.

Cheers,
 

Speaking of judges "doing their thing",here's some light entertainment for the lawyerly types (docket history with links to briefs, etc. here.

Sometime a judge just has to do what's right. And that means kicking the keister of folks that think they know more law than they do (some of the understated slaps on Berg's buttocks are rather amusing).

"Bart" might bone up a bit on his CivPro if he cares to take a peek....

Cheers,
 

For some of the context of the Berg case, (and a view of what the foaming RW thinks of proper court procedure), see my blog post here.

Cheers,
 

There were two parts to the McCain comment (i) the "gated communities" reference to the criminal justice system and (ii) the "legislating from the bench" sally.

In relation to the 1st point politicians on the right have for very many years run on "law and order" platforms - its a cheap way to garner votes. It is also usually fundamentally dishonest.

What politicians do is play up to a psychosis: the fear of assault on the streets or burglary in the home. This has been so effective in the USA and the UK that one has citizens retreating to gated communities. The politicians then call for ever more extreme sentences as a deterrent.

However, as every professional knows, practically no person committing a crime believes that they are going to be caught. Therefore, even if one were to bring back hanging or transportation to the colonies for theft (I suppose some of the under-populated red states could be deemed 'colonies' for this purpose), it is known that that change would have little if any any impact on the crime statistics.

The United States has the highest prison population rate in the world, some 686 per 100,000 of the national population, followed by the Cayman Islands (664), Russia (638), Belarus (554), Kazakhstan (522), Turkmenistan (489), Belize (459), Bahamas (447), Suriname (437) and Dominica (420).

However, more than three-fifths of countries (62.5%) have rates below 150 per 100,000. (The United Kingdom’s rate of 139 per 100,000 of the national population places it above the midpoint in the World List; it is now the highest among countries of the European Union.)

[The source for the these statistics is the UK Home Office Home Office Research, Development and
Statistics Directorate - World Prison Population List
]

How come that several EU countries have imprisonment rates per 100,000 which are much lower than the USA/UK: Denmark 59, Finland 59, Norway 59, Sweden 68, Slovenia 56 and Switzerland 69. Are these countries more unsafe - or their citizens innately more law abiding?

What all research shows is the strong connection between crime, imprisonment, ethnicity and social deprivation. An example is the work of Professor Oliver at the University of Minnesota:-

African Americans are imprisoned at least eight times as often as European Americans, while American Indians and Hispanics are imprisoned at two to three times the European American rate. (Asian American incarceration rates are generally lower than European American rates.) About a third of African American men are under the supervision of the criminal justice system, and about 12% of African American men in their 20s and 30s are incarcerated. These astronomical incarceration rates have huge social and economic consequences for black women, black children, and black communities. They are not a legacy of Jim Crow, but are a result of policies implemented since the mid-1970s which created exponential growth in incarceration between 1975 and 2000. This growth was not due to growing crime rates, but to greater use of incarceration for lesser offenses and drug offenses. High incarceration rates ruin people's lives and make the problem worse, by making it harder for young people who have done wrong to be rehabilitated, find jobs, and become productive members of society. Children whose parents are sent to prison are especially harmed by these policies.

Very similar statistics are to be found in UK research.

Increasing the probability of detection and prosecution does work to a limited extent. That calls for money to be spent on better policing - which is expensive. It involves getting police out of their vehicles in cities and onto the streets. The Metropolitan Police in London are doing this Safer Neighbourhoods with some measure of success.

The next cry from the extreme right is generally "punishment works". Actually, if it is in the form of custody, no it generally doesn't, save that the individual may be prevented from committing crime while incarcerated - and also receive a university-class education on how to commit crimes during the same period. In contrast early intervention works. Community punishments work - especially where they involve restorative justice.

But, above all, the experience of our neighbours is that the Northern European model of societies with an extensive social welfare system reduces the incidence of crime. That is the cost-effective solution - but US and UK politicians of the right are never going to admit that. They don't like to be confused with facts - above all with facts that are politically hard to sell to an unwilling audience.
 

""Straw man". No one has said such a thing."

Better tell the ACLU that, it's still what they're claiming the amendment means, even after Heller.
 

That's a good point Steve. I'm actually starting to wonder how any of us are able to talk to each other at all when only Bart has any actual understanding of what any particular word in the English language means in any given context.

Are we all unconscious telepaths or merely unintelligent noisemakers?

And why does Bart waste his time with us as if we were capable of understanding anything he says?
 

Mourad:

Nicely done.
 

Mourad:

1) Criminal behavior is a cultural failure, not an economic one.

In the US, rural communities with intact family structures are largely crime free while urban and suburban communities with broken or single parent families are crime ridden even though both communities have about the same economic position.

As for your example, Northern Europeans were law abiding long before they developed welfare states.

2) Prison is meant to keep recidivist criminals off the street not to deter potential criminals.

3) I have a question for you. Do the UK or any of the other EU countries follow the US exclusionary rule?
 

Oh my, you do crack me up sometimes Bart....

1) All economics are inherently cultural and social, and as Mr. Bush's favorite philosopher once noted: "the love of money is the root of all evil".

2) As for crimes...

"[T]here can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed." Oliver Wendell Holmes, Jr., THE COMMON LAW.

And you're stuck in a chicken and egg paradox. There aren't any criminals until you first enact a law, and the purpose of a law cannot be to lock up people to prevent them from repeating crimes they haven't committed against laws that don't exist.

What you're really interested in here is using the law as a weapon of tyranny against others.
 

Brett:

["Bart"]: > "right of the People" in the Second Amendment actually means "right of the States."

[Arne]: "Straw man". No one has said such a thing. Minus ten points and no gold star for you on the board this week.Better tell the ACLU that, it's still what they're claiming the amendment means, even after Heller.

Your cite for this, please? I'd liketheir language
, not what you think (or say) they said.

Thanks in advance.

Cheers,
 

"Bart" DePalma:

) Criminal behavior is a cultural failure, not an economic one.

Any source for this extraordinary claim other than the usual orifice?

Perhaps there really is such a crime as "driving while black", eh?

In the US, rural communities with intact family structures are largely crime free while urban and suburban communities with broken or single parent families are crime ridden even though both communities have about the same economic position.

Well, outside the meth labs.... ;-)

As for your example, Northern Europeans were law abiding long before they developed welfare states.

My Viking ancestors thank you for the compliment. The good people of Jorvik and Devlin might disagree, though.

2) Prison is meant to keep recidivist criminals off the street not to deter potential criminals.

Stuff and nonsense.

3) I have a question for you. Do the UK or any of the other EU countries follow the US exclusionary rule?

WTF? Google is your friend. You could do some 'research' yourself....

Cheers,
 

My Viking ancestors thank you for the compliment.

And here I thought you were a nice Italian boy, Arne! Silly me.
 

LSR Bart makes the following assertions and asks a question:

(1) Criminal behavior is a cultural failure, not an economic one. In the US, rural communities with intact family structures are largely crime free while urban and suburban communities with broken or single parent families are crime ridden even though both communities have about the same economic position.

(2) As for your example, Northern Europeans were law abiding long before they developed welfare states.

(3) Prison is meant to keep recidivist criminals off the street not to deter potential criminals.

Q. I have a question for you. Do the UK or any of the other EU countries follow the US exclusionary rule?

Such is the depth of ignorance revealed by both the assertions and the question that I question whether Bart took his law degree in person or by a deputy.

I do not propose to trouble other readers with a detailed response to the assertions. But I should like to say something about the "US exclusionary rule".

It goes without saying that UK and European Courts do not "follow" the US exclusionary rule. We have had our rules of evidence for far longer than the USA has had its independence and so far as the USA is concerned, the rules excluding some evidence from consideration by the jury have their origin in the common law of England.

Since the original colonies quite recently (in a legal timeline) declared their independence, the British legal systems (English and Scottish) and the US systems - state and federal - have naturally gone their separate ways and evolved differently.

In all European legal systems the objective is to have a "fair trial". That is a requirement of the European Convention on Human Rights. The formulation of detailed rules differs from country to country and the need for them varies - because, for example, some countries do not have trial by jury and a professional judge is less likely to be influenced by evidence which is not probative but merely prejudicial, while the same evidence might seriously mislead a jury of lay persons.

The general formulation in common law systems is that evidence should not be admissible at a jury trial if it has has been obtained in such circumstances such that its probative value is outweighed by its prejudice to the fair trial of the defendant.

Evidence obtained by torture or inhuman and degrading treatment is always inadmissible - a right which is now enshrined in the Torture Convention (to which the USA, the UK and all the EU and Council of Europe countries are signatories).

The rules of evidence in different countries vary in their details. In the UK the behaviour of the police towards suspects is regulated by codes to the Police and Criminal Evidence Act 1984 (PACE) which also sets out the circumstances in which evidence improperly obtained will or may be excluded. PACE and PACE Codes of Conduct. Those with an interest in the subject can, if they wish, compare and contrast our rules with the rules applied in their own jurisdiction. In relation to confessions, the general aim is to exclude evidence obtained by any form of oppressive conduct placing doubt on the voluntary nature of the confession.

Admissibility also arises in relation to other kinds of evidence. For example, it is now quite common for there to be restrictions on what questions may be asked of the complainant in a rape case. This is to prevent the complainant from being deterred from giving evidence by the sort of cross-examination which seeks to elicit the complainant's previous sexual experience because the presence or absence of such previous experience is, save in very exceptional cases, irrelevant to the issue of consent to intercourse on the specific occasion.

Then there are issues as to what 'opinion' as opposed to factual evidence may be placed before the Court. Much damage can be done by inappropriate or carelessly prepared expert evidence. One notorious example in the UK has been in relation to child deaths in the home where expert evidence has been found wanting on appeal.

One thing I am quite sure of: perfect justice is an attribute of the Deity and there is no such thing on this earth. Our systems are devised by humans and operated by humans and are therefore necessarily imperfect. We have seen many cases where alleged murderers convicted and sentenced to life imprisonment have seen their convictions overturned on subsequent appeal - often many years later after new evidence has been obtained. DNA cases are a good example. There are others where alleged confessions were found to have been fabricated by dishonest policemen only revealed by the relatively new electrostatic tests now available.

The fallibility of human justice is one reason why there is no longer a death penalty in any Council of Europe jurisdiction.
 

Mourad:

Thank you for your answer noting that EU courts do not follow our Court invented exclusionary rule but instead simply seek a fair trial.

The Court invention of the exclusionary rule is part of what McCain is decrying as legislation from the bench that undermines law enforcement and endangers the citizenry.

On at least this one point, it appears the McCain, you and the EU agree.
 

so far as the USA is concerned, the rules excluding some evidence from consideration by the jury have their origin in the common law of England.

Thank you for your answer noting that EU courts do not follow our Court invented exclusionary rule

One of these things is not like the others,
One of these things just doesn't belong,
Can you tell which thing is not like the others
By the time I finish my song?

Did you guess which thing was not like the others?
Did you guess which thing just doesn't belong?
If you guessed this one is not like the others,
Then you're absolutely...right!

/sesamestreet
 

@mourad, lie with the chicken chokers, rise with the guano. As homework you really ought to parse what he's done to your thoughtful and reasoned post. I'll give you a starting hint, Schopenhauer called it "Homonomyny". Some folks have quite a gift for such illegitimate tactics, and knowing how to disarm such thugs is job one. In most cases that simply means letting them yammer on to themselves in the corner and keeping one's conversation with more worthy interlocutors. $.02

@pms, well done pointing out how cherry picking is used to support tactics discussed above.
 

This comment has been removed by the author.
 

@ Mourad:

In relation to confessions, the general aim is to exclude evidence obtained by any form of oppressive conduct placing doubt on the voluntary nature of the confession.

IIRC, Prof. Levinson's "Torture: A Collection" book (check links on right of blog) has one article on the historical evolution of torture and the rules of evidence. Worth the read ... the whole book is, but I'm only half done right now....

Cheers,
 

mattski:

And here I thought you were a nice Italian boy, Arne! Silly me.

Nah. That's my cousin Andy Langestino.

Skål,
 

"Bart" DePalma:

Thank you for your answer noting that EU courts do not follow our Court invented exclusionary rule but instead simply seek a fair trial.

Far from our courts "invent[ing]" the exclusionary rules (those that are not part of the FRE), these happen to be those that carry out provisions of the "supreme law of the law", the Constitution. But they work in the same way as the FRE and other exclusionary rules do to implement "due process" and a fair trial. Just as someone cannot be tortured for a confession (in all jurisdictions), and such confessions -- regardless of the truth of such -- are impermissible in court, one cannot be impermissibly searched for evidence either. That "Bart" chafes under such restrictions just shows his contempt for the U.S. Constitution.

Cheers,
 

Hey guys!
i just started blogging not that long ago and running across this blog it seemed a bit too interesting to only read the first paragraph. Please, who ever wrote this, keep me updated!
Safety Glasses

 

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