By now you know if you care. MSNBC suspended Keith Olberman because he donated to some congressional candidates. The reasoning was that those donations demonstrated bias on Olberman's part. Well yes they did and we would like our news people to be unbiased. That is pretty obvious and it will be no surprise that I disagree strongly with Olberman's views. However I also disagree with his suspension. In fact I believe all news people, judges etc. should demonstrate their bias so we can know what their real beliefs are.
The fact is that news people do have political beliefs, that is inevitable. The better ones try, often quite successfully, to keep those biases out of their work but they still have political beliefs. Wouldn't it be better if they were all up front about it so we could know where they are coming from?
A similar problem affects judicial candidates in many states. In Oregon, for example, judicial candidates are prohibited from expressing their views during their campaigns. A candidate may believe that criminals should not be incarcerated, or he may oppose the death penalty, or he may think that freedom of speech should be restricted. Voters should be made aware of those beliefs but under the current system he is not allowed to tell them what he believes. He may only list qualifications, endorsements etc. Aside from its first amendment implications, that restriction puts voters at a disadvantage.
Now there may be some reason for judicial candidates to be discrete in their campaigns. They should not express views on particular cases since the evidence will not yet be in. However they should tell us what they believe in general terms, things like if they support the constitution or specific laws etc.
I would support MSNBC if they suspended Olberman for expressing flagrantly biased views on the air. If they want to present unbiased information they should insist that their employees do just that (though it is questionable if that is MSNBC's objective). I would also support disciplining judges for allowing their bias to influence courtroom decisions. Judges are entitled to their beliefs but their job is to deal with the law as written, not to make or modify law (except when the law violates the constitution). However I cannot support institutional hiding of the beliefs of either judges or news people. That sort of policy withholds important information from the citizens.
If a news person is so biased that he will refuse to publish stories that go contrary to his belief, we have a right to know that.
If a judicial candidate is so set against the death penalty, for example, that he will never apply it, voters have a right to know that.
We need news people who can say openly, “I have these political beliefs. This story seems to contradict my beliefs but I also believe it is important to get the information to the public so I am publishing it.”
We need judges and judicial candidates who can say openly, “I believe this law is wrong and should be changed. However it is the law and until it is changed I must follow it.”
The problem is not when such people admit to their biases; it is when they allow those biases to affect their work. That problem is exacerbated when they are required to hide their biases.
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Showing posts with label judges. Show all posts
Showing posts with label judges. Show all posts
Tuesday, November 9, 2010
Tuesday, August 18, 2009
The Rule of Law
“No Bill of Attainder or ex post facto Law shall be passed.” I think we often miss the importance of that simple sentence in our constitution. Imagine what our legal system might be like without it. You could drive the speed limit and then be charged for breaking it because the limit was changed later. After all, if it is unsafe to drive 65 today, it must also have been unsafe last month when you did it. Or maybe you paid your taxes, but then the legislature retroactively raised tax rates. Too bad. Why should we care if you already spent the money you had left after paying the first time? You still owe the new taxes.
If laws could be retroactively changed in that manner we would not know how to act. Would anyone invest in a business and employ people if the government could tell him that he owes half his investment money in retroactive taxes? Would anyone build houses if the building code could be changed retroactively?
Those examples may seem a bit overblown, but we do have what amounts to ex post facto laws right now. The courts have developed a bad habit of changing the requirements and allowing law suits for actions considered perfectly acceptable when they were done. For example in the case of Ferebee v. Chevron Chemical Co., a farm worker died after misusing the herbicide Parquat. The chemical was labeled as mandated by the EPA. However the courts held that the labeling was inadequate even though Chevron had no choice in how it was worded. The court effectively said that what had been legal (and in fact government mandated) before Ferebee's death was now retroactively not allowed. Chevron was forced to pay a judgment for actions quite acceptable when they were done.
Another case involved a suspect who was given his Miranda warning and signed a “Consent to Speak” form. He confessed to robbing several stores but asked the officer not to write it down. After his conviction, the District of Columbia Circuit Court of Appeals sent the case back to the trial court, claiming that the suspect thought his unwritten confession would not count. They said that gave reason to doubt that he “intelligently and knowingly waived his constitutional right to remain silent.” That was a clear case of the court retroactively changing requirements; the officers involved had followed previous court direction to the letter. Though ultimately the conviction stood, Judge David Bazelon still dissented, claiming that the suspect should have been acquitted because he didn't have an “equal chance” with the smarter criminals.
How can police hope to follow the rules if those rules keep changing retroactively? How can a chemical company follow retroactively changed rules? This sort of thing causes serious confusion, adversely affecting both our economic and private lives. Criminals will be released to continue menacing the public and companies will fear to offer products we want at prices we are willing to pay. Jobs will be lost as those employers cut back on operations.
All such legal uncertainties are contrary to the rule of law, replacing it with the rule of judges, acting on their own ideas and whims. That is very close to a police state. It becomes a rule of the powerful, acting on what they prefer or believe instead of on settled rules.
In fact judge-made law is ex post facto by its very nature. Nobody can know ahead of time what the judge will decide. The decision comes not only after the action is performed, but months, sometimes years, after. Only after the case goes through the legal process will people know if their actions are going to be retroactively declared illegal.*
While legislation can be known before we break the law, we have no such advantage with judicial rulings. If your company released a new product last year and the judge decides today that it was illegal, you are held accountable just as though you had done it knowingly after the ruling.
It is said that ignorance of the law is no excuse. However in the case of those judicial rulings, the decision has not yet been made. There is no way to know if we are effectively breaking the law. That is an important reason that judges should restrict their actions to settled law, not seek to make new law. Even if the new ruling seems like a good idea, it is not up to judges to impose good ideas on the country. That is the prerogative of the legislative branch. Legislators, either state or national, can change the law in such a manner that people know what the law is and can thus obey it.
We need a rule of law, and that law has to be known to the people before it becomes effective. Judges as well as legislators should follow that rule.
*I am aware that in most cases those actions will not be considered criminal offenses so perhaps not technically “illegal.” However the effect is the same. There is punishment for previously acceptable actions, and uncertainty about how to live our lives and run our businesses.
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If laws could be retroactively changed in that manner we would not know how to act. Would anyone invest in a business and employ people if the government could tell him that he owes half his investment money in retroactive taxes? Would anyone build houses if the building code could be changed retroactively?
Those examples may seem a bit overblown, but we do have what amounts to ex post facto laws right now. The courts have developed a bad habit of changing the requirements and allowing law suits for actions considered perfectly acceptable when they were done. For example in the case of Ferebee v. Chevron Chemical Co., a farm worker died after misusing the herbicide Parquat. The chemical was labeled as mandated by the EPA. However the courts held that the labeling was inadequate even though Chevron had no choice in how it was worded. The court effectively said that what had been legal (and in fact government mandated) before Ferebee's death was now retroactively not allowed. Chevron was forced to pay a judgment for actions quite acceptable when they were done.
Another case involved a suspect who was given his Miranda warning and signed a “Consent to Speak” form. He confessed to robbing several stores but asked the officer not to write it down. After his conviction, the District of Columbia Circuit Court of Appeals sent the case back to the trial court, claiming that the suspect thought his unwritten confession would not count. They said that gave reason to doubt that he “intelligently and knowingly waived his constitutional right to remain silent.” That was a clear case of the court retroactively changing requirements; the officers involved had followed previous court direction to the letter. Though ultimately the conviction stood, Judge David Bazelon still dissented, claiming that the suspect should have been acquitted because he didn't have an “equal chance” with the smarter criminals.
How can police hope to follow the rules if those rules keep changing retroactively? How can a chemical company follow retroactively changed rules? This sort of thing causes serious confusion, adversely affecting both our economic and private lives. Criminals will be released to continue menacing the public and companies will fear to offer products we want at prices we are willing to pay. Jobs will be lost as those employers cut back on operations.
All such legal uncertainties are contrary to the rule of law, replacing it with the rule of judges, acting on their own ideas and whims. That is very close to a police state. It becomes a rule of the powerful, acting on what they prefer or believe instead of on settled rules.
In fact judge-made law is ex post facto by its very nature. Nobody can know ahead of time what the judge will decide. The decision comes not only after the action is performed, but months, sometimes years, after. Only after the case goes through the legal process will people know if their actions are going to be retroactively declared illegal.*
While legislation can be known before we break the law, we have no such advantage with judicial rulings. If your company released a new product last year and the judge decides today that it was illegal, you are held accountable just as though you had done it knowingly after the ruling.
It is said that ignorance of the law is no excuse. However in the case of those judicial rulings, the decision has not yet been made. There is no way to know if we are effectively breaking the law. That is an important reason that judges should restrict their actions to settled law, not seek to make new law. Even if the new ruling seems like a good idea, it is not up to judges to impose good ideas on the country. That is the prerogative of the legislative branch. Legislators, either state or national, can change the law in such a manner that people know what the law is and can thus obey it.
We need a rule of law, and that law has to be known to the people before it becomes effective. Judges as well as legislators should follow that rule.
*I am aware that in most cases those actions will not be considered criminal offenses so perhaps not technically “illegal.” However the effect is the same. There is punishment for previously acceptable actions, and uncertainty about how to live our lives and run our businesses.
If you like my blog, please tell others.
If you don't like it, please tell me.
Monday, August 17, 2009
An Independent Judiciary?
We regularly hear about how important it is to have an independent judiciary. However that leaves out an important point: Independent of what? The idea behind judicial independence is that neither congress nor the president should control the judicial branch of our government. That is great, it is one of the checks and balances our founders built into the constitution. The judiciary should be free to judge according to the law and constitution. However judges should not be independent of that law and constitution.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
If you like my blog, please tell others.
If you don't like it, please tell me.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
If you like my blog, please tell others.
If you don't like it, please tell me.
Thursday, May 28, 2009
Supreme Court Appointments
Appointment of a Supreme Court justice calls for extreme care. Decisions of that court remain effective for an unlimited time and there is no appeal. It is also difficult to remove a bad justice so the president must chose wisely. Mark R. Levin in his book, Men in Black documents many justices who have caused problems over the years. That includes Abe Fortas who resigned to avoid impeachment in a bribery scandal. The potential mischief a bad justice can commit is a warning that they should be chosen wisely.
I submit the following as mandatory requirements for any Supreme Court justice:
1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
Integrity is the first and most important characteristic. A justice must not be subject to bribery, blackmail, undue influence or anything that could interfere with good decisions. Intelligence and ability without integrity are dangerous; an intelligent but unethical justice can use his ability to hide misdeeds and to persuade other justices to support tainted decisions.
Second, justices must be committed to our constitutional form of government, and to constitutional law. We have a representative republic with carefully crafted protections against abuse of power and the court must uphold that form of government. Substitution of its own wisdom for the constitutional law of the land would put the court the position of a dictator. Legislation should be left to senators and representatives who are accountable to the voters; the court is not a super-legislature.
Third, justices must subordinate their own beliefs and desires to law and constitution. One mark of a good judge is to set aside personal preference and judge according to the law. To do otherwise would again be putting himself in the position of dictator, imposing his own will on the electorate. We need justices who can say, "I dislike this law. I think it is dumb. However it is the law and it is constitutional so I must let it stand." Justices must recognize that they are "hired hands," employed to serve the people according to the "contract" set forth in the constitution. They may think that a law is stupid, and in this they may be right. However they must recognize that voters and their representatives have a right to make laws, even stupid laws.
Forth, justices must have the intellectual wherewithal to deal with the issues they will face. This seems obvious. Not only are the issues themselves often complex, but there are smart lawyers arguing each side. A justice must be able to consider all aspects of a case, cut through the intellectual fog, and decide on the basis of fact, logic, law and constitution.
Fifth, and again rather obviously, judicial nominees must have a sound knowledge of the law and the constitution. They must know and understand the basis on which they are to decide.
The president must reject the temptation to appoint justices who will advance a political agenda, instead seeking those who meet the above requirements. Justices should be judges, not politicians.
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