Another example of an activist conservative judge legislating from the bench:
Virginia judge rules health care mandate unconstitutional
I fully expect Sarah Palin, Mitt Romney, Orrin Hatch and the gang to rebuke this affront to our Constitutional system of checks and balances.
Showing posts with label courts. Show all posts
Showing posts with label courts. Show all posts
Monday, December 13, 2010
Thursday, November 19, 2009
Trying Terrorists in Civil Court
The latest evidence proffered by conservative ideologues that Pres. Obama is anti-American and that America is being ruined is the announcement that certain detainees from Guantanamo Bay will be tried in civil courts for the 9/11 attacks. Chief among them is Khalid Sheikh Mohammed, the self-described mastermind of 9/11.
The reasons for conservative outrage go like this, I think:
1. These men do not deserve the privilege of the American court system. To try them in our court system would be to defile that system.
2. It is dangerous to bring these terrorists to American soil because it would invite further terrorist attacks.
3. The government would have to give up its secrets in court in order to prosecute them effectively.
4. It would be a media circus and too great a strain on our court system.
As to number one, I agree. He does not deserve due process of law. Neither did Timothy McVeigh or Jeffrey Dahmer. These types of men do not deserve the rights and privileges of due process of law. But in America this is how we do it. In America we are a nation of laws, due process, objectivity, and justice. We have a Constitution to protect us from mob rule and decisionmaking based on emotion, hatred, half-truths, rumors, and the like. It is fundamentally American, and the right thing to do, to drag these terrorists through the court system and show the world that America does things the Right Way.
Number two is, I believe, a scare tactic. There have been no other terrorist attacks on U.S. soil since 9/11, despite the fact that they have tried. We are more alert now than ever, and I believe that we are safer now than ever. I don't believe that we are more at risk having these few terrorists locked up in America than we did having them locked up 100 miles south of Florida in Cuba.
Number three is probably not going to happen to begin with, but reveals something about ourselves in any case. The government has a long standing exemption from regular discovery rules for national security secrets. They will not give away information that could be used to harm America, our troops, or our citizens. But really what we are worried about is the embarrassing stuff that could come out as a result of this trial. The torture, the poor conditions, the poor decisionmaking, and all the other skeletons in our closet regarding how we have prosecuted the war on terror.
Part of the reason I support this move by the Obama Administration is because it will lead to more openness about how we've been doing things and it will shed some light on some of our actions that we should not be proud of. Hopefully we'll come out of this a stronger nation with more desire to be just, open, and supportive of human rights than before. They will convict these terrorists no matter how embarrassing some of the details may be, so I hope we end up doing a little soul-searching along the way.
Number four is trivial and doesn't matter to me. It will be a media circus. It will strain the courts. Compared to how important it is to get this right, and show America to be just and strong and confident, those concerns mean little.
It has been well documented (I get my information from Glenn Greenwald: see here, here, here, and here, who in turn gets his information from the Pentagon, Gen. McChrystal, and others) that the imprisonment of Muslims suspected of terrorism without any sort of due process of law is a key recruiting tool for Islamic extremists. The mistreatment of extremists in our custody is driving more extremism. We have to put a stop to this, and it is within our power to do so. Muslim extremists, it is true, will never "like" us, but that is besides the point. We don't need friends, we just need to take the edge off that seething anger that drives manageable dislike to terrorism.
Trying these extremists in civil court, including KSM, is the right thing to do both for ourselves internally as a nation and our security worldwide.
The reasons for conservative outrage go like this, I think:
1. These men do not deserve the privilege of the American court system. To try them in our court system would be to defile that system.
2. It is dangerous to bring these terrorists to American soil because it would invite further terrorist attacks.
3. The government would have to give up its secrets in court in order to prosecute them effectively.
4. It would be a media circus and too great a strain on our court system.
As to number one, I agree. He does not deserve due process of law. Neither did Timothy McVeigh or Jeffrey Dahmer. These types of men do not deserve the rights and privileges of due process of law. But in America this is how we do it. In America we are a nation of laws, due process, objectivity, and justice. We have a Constitution to protect us from mob rule and decisionmaking based on emotion, hatred, half-truths, rumors, and the like. It is fundamentally American, and the right thing to do, to drag these terrorists through the court system and show the world that America does things the Right Way.
Number two is, I believe, a scare tactic. There have been no other terrorist attacks on U.S. soil since 9/11, despite the fact that they have tried. We are more alert now than ever, and I believe that we are safer now than ever. I don't believe that we are more at risk having these few terrorists locked up in America than we did having them locked up 100 miles south of Florida in Cuba.
Number three is probably not going to happen to begin with, but reveals something about ourselves in any case. The government has a long standing exemption from regular discovery rules for national security secrets. They will not give away information that could be used to harm America, our troops, or our citizens. But really what we are worried about is the embarrassing stuff that could come out as a result of this trial. The torture, the poor conditions, the poor decisionmaking, and all the other skeletons in our closet regarding how we have prosecuted the war on terror.
Part of the reason I support this move by the Obama Administration is because it will lead to more openness about how we've been doing things and it will shed some light on some of our actions that we should not be proud of. Hopefully we'll come out of this a stronger nation with more desire to be just, open, and supportive of human rights than before. They will convict these terrorists no matter how embarrassing some of the details may be, so I hope we end up doing a little soul-searching along the way.
Number four is trivial and doesn't matter to me. It will be a media circus. It will strain the courts. Compared to how important it is to get this right, and show America to be just and strong and confident, those concerns mean little.
It has been well documented (I get my information from Glenn Greenwald: see here, here, here, and here, who in turn gets his information from the Pentagon, Gen. McChrystal, and others) that the imprisonment of Muslims suspected of terrorism without any sort of due process of law is a key recruiting tool for Islamic extremists. The mistreatment of extremists in our custody is driving more extremism. We have to put a stop to this, and it is within our power to do so. Muslim extremists, it is true, will never "like" us, but that is besides the point. We don't need friends, we just need to take the edge off that seething anger that drives manageable dislike to terrorism.
Trying these extremists in civil court, including KSM, is the right thing to do both for ourselves internally as a nation and our security worldwide.
Wednesday, May 27, 2009
Sotomayor and Judicial Activism
President Obama nominated Sonia Sotomayor to the Supreme Court and conservatives are gearing up for a fight. They are not finding a lot of ammunition so far, but there is one bullet they find particularly potent:
So Sotomayor thinks that policy is made in the Courts of Appeal. If it wasn't so absolutely and incontrovertibly true, it might just be appalling.
The United States is a common law country, and it has been since its inception and our legal roots go back hundreds of years to the English common law system. Common law is a system in which the law is developed over time by judicial decisions which hold precedent over subsequent decisions. Just about every basic law we have was developed by courts over hundreds of years of decisions, from criminal law to contract law to property law to torts and on and on.
This is opposed to a civil code jurisdiction which is governed by, just that, a civil code. The United States is moving in that direction, codifying most of our laws, but in true civil code jurisdictions like France and South American countries the courts hold no precedential weight.
So what does this all mean? It means that judges make law all the time and have done so for centuries. Sotomayor's comments in the Youtube clip were in response to a question about the differences in being a law clerk in a district court (trial court) and the Courts of Appeal. Trial court decisions hold no precedent. Other trial courts can follow or not follow another trial court decision as they please. As a result, trial judges look narrowly at the law and facts before them and decide accordingly.
Appellate court decisions do hold precedent and thus the judges need to have a more broad view of the law in making their decisions. They need to think about how the decision will affect other courts and litigants in the future. They need to think about how a decision fits in with all the other pieces of law that surround it. They absolutely must make policy decisions. Their job would be impossible if they did not, and the legal system would be in disarray because no courts would be thinking about the big picture. It is silly to act like appellate courts should not consider policy when making their decisions.
Legislatures and Congress, for example, often pass laws that are worded vaguely or subject to multiple interpretations. Sometimes they do this on purpose and sometimes out of oversight and sometimes out of incompetence. It is up the judiciary, then, to divine the legislatures intent (if possible, because often its not) and interpret the law accordingly, with an eye toward the effect of the decision on future actions and litigation. This is one ways courts "make" law, by interpreting statutes. This type of analysis requires consideration of public policy.
It is equally silly to rail against judicial activism. I suppose judicial activism is where a court overturns a law enacted by the legislature or enumerates a right or activity as legal/illegal where legislatures have not spoken.
As to the first, that is often the exact role a judge must play, and it is done all the time by both conservatives and liberals. I can find just as many decisions of conservatives overturning laws they don't like as you can liberals doing the same thing. If a law is unconstitutional, irrational, or unsupported by facts it is the courts' duty to overturn that law. This is part of the principle of checks and balances that is essential to our system of government.
As to the second, the courts are often (almost always, really) on the front lines of constitutional issues. The Constitution is an amazing document. It was purposely written broadly to allow for the inevitable changes in society. The Framers could not possibly have imagined a society so complex and different from the one they lived in, and yet they drafted a Constitution that is equally applicable and useful today as it was over 200 years ago. But what it means is that society is necessarily going to view certain provisions differently than had been done previously.
So when an issue of constitutionality comes before a court where Congress has not acted, it is often required of the courts to make hard decisions. In fact, it is the express duty of the Supreme Court to be the final interpreter of the Constitution. Courts often find themselves in the position to announce new or altered interpretations of the Constitution, and time and public opinion usually bare those decisions out. The Courts are not always right, but they do a fine job in the face of big and difficult problems.
Over the next few months we are going to hear a lot about judicial activism. Just remember that "judicial activist" is simply a code phrase for "liberal" and nothing more. There are serious and interesting debates about the role of the judiciary branch in the United States, but this really isn't one of them.
So Sotomayor thinks that policy is made in the Courts of Appeal. If it wasn't so absolutely and incontrovertibly true, it might just be appalling.
The United States is a common law country, and it has been since its inception and our legal roots go back hundreds of years to the English common law system. Common law is a system in which the law is developed over time by judicial decisions which hold precedent over subsequent decisions. Just about every basic law we have was developed by courts over hundreds of years of decisions, from criminal law to contract law to property law to torts and on and on.
This is opposed to a civil code jurisdiction which is governed by, just that, a civil code. The United States is moving in that direction, codifying most of our laws, but in true civil code jurisdictions like France and South American countries the courts hold no precedential weight.
So what does this all mean? It means that judges make law all the time and have done so for centuries. Sotomayor's comments in the Youtube clip were in response to a question about the differences in being a law clerk in a district court (trial court) and the Courts of Appeal. Trial court decisions hold no precedent. Other trial courts can follow or not follow another trial court decision as they please. As a result, trial judges look narrowly at the law and facts before them and decide accordingly.
Appellate court decisions do hold precedent and thus the judges need to have a more broad view of the law in making their decisions. They need to think about how the decision will affect other courts and litigants in the future. They need to think about how a decision fits in with all the other pieces of law that surround it. They absolutely must make policy decisions. Their job would be impossible if they did not, and the legal system would be in disarray because no courts would be thinking about the big picture. It is silly to act like appellate courts should not consider policy when making their decisions.
Legislatures and Congress, for example, often pass laws that are worded vaguely or subject to multiple interpretations. Sometimes they do this on purpose and sometimes out of oversight and sometimes out of incompetence. It is up the judiciary, then, to divine the legislatures intent (if possible, because often its not) and interpret the law accordingly, with an eye toward the effect of the decision on future actions and litigation. This is one ways courts "make" law, by interpreting statutes. This type of analysis requires consideration of public policy.
It is equally silly to rail against judicial activism. I suppose judicial activism is where a court overturns a law enacted by the legislature or enumerates a right or activity as legal/illegal where legislatures have not spoken.
As to the first, that is often the exact role a judge must play, and it is done all the time by both conservatives and liberals. I can find just as many decisions of conservatives overturning laws they don't like as you can liberals doing the same thing. If a law is unconstitutional, irrational, or unsupported by facts it is the courts' duty to overturn that law. This is part of the principle of checks and balances that is essential to our system of government.
As to the second, the courts are often (almost always, really) on the front lines of constitutional issues. The Constitution is an amazing document. It was purposely written broadly to allow for the inevitable changes in society. The Framers could not possibly have imagined a society so complex and different from the one they lived in, and yet they drafted a Constitution that is equally applicable and useful today as it was over 200 years ago. But what it means is that society is necessarily going to view certain provisions differently than had been done previously.
So when an issue of constitutionality comes before a court where Congress has not acted, it is often required of the courts to make hard decisions. In fact, it is the express duty of the Supreme Court to be the final interpreter of the Constitution. Courts often find themselves in the position to announce new or altered interpretations of the Constitution, and time and public opinion usually bare those decisions out. The Courts are not always right, but they do a fine job in the face of big and difficult problems.
Over the next few months we are going to hear a lot about judicial activism. Just remember that "judicial activist" is simply a code phrase for "liberal" and nothing more. There are serious and interesting debates about the role of the judiciary branch in the United States, but this really isn't one of them.
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