The portentous iniquities of the American justice system

[Brother None]

I might be missing something here, but I kind of fail to see how the current events surrounding the American supreme court are supposed to reflect positively on the court system of the US, which welsh was defending so vehemently not too long ago.

Even ignoring the basic splits necessary within a trias politica structure and ignoring the fact that it's ass-retarded to have a man who is only president for 4-8 years appoint someone to a powerful position for life, one would have to accept that the usage of a court-system as a political game is raping everything that modern law stands for. The whole point of "justice" is that the only institution it has to answer to is the constitution. The judge and jury presiding over the Jackson case had nothing to do with reactions from fans and haters and equally the remark a few months back that laws about the death penalty in the US being cancelled because of international influence was retarded if by that was meant political influence, rather than lead-by-example (which, after all, is the way the US spread political power as well as by fire and sword)

So what is up with this? HAS THE WHOLE WORLD GONE MAD?!

Members of conservative groups around the US are rallying to head off the nomination of US Attorney General Alberto Gonzales to the Supreme Court.

Mr Gonzales has been tipped as a likely candidate for the vacancy after Sandra Day O'Connor announced her retirement from the nine-member court on Friday.

Mr Gonzales, a close ally of President George W Bush, would be the first Hispanic to sit on the court.

Mr Bush is not expected to announce his choice until after the G8 summit.

He is facing growing calls to appoint a centrist to replace Ms O'Connor - the first woman to serve on the Supreme Court.

Last week, a delegation of conservative lawyers met the White House chief of staff to warn that appointing Mr Gonzales would divide conservatives, the New York Times reports.

Paul M Weyrich, chairman of the Free Congress Foundation, said he had told administration officials that nominating Mr Gonzales would divide the president's supporters.

"We have let the administration know through whatever channels we have that Gonzales would be an unwise appointment because of the opposition of some of the groups," he said.

He said some groups would actively oppose Mr Gonzales, while "others like the Southern Baptists and myself would simply not help".


We would oppose him because we don't believe he has a philosophy that we can determine
Tom Minnery
Conservative advocacy group Focus on the Family

Possible successors

The conservatives who oppose Mr Gonzales' nomination say he is too moderate and that his views on issues such as abortion and affirmative action are not far enough to the right.

"We would oppose him because we don't believe he has a philosophy that we can determine. We are not enthused," Tom Minnery of conservative advocacy group Focus on the Family told the Washington Post.

"He is someone who is apparently still developing his philosophy, and that's not good enough," Mr Minnery added, citing Mr Gonzales' "lack of open commitment to interpret the constitution as it was written".

Democratic senators have said they will oppose a conservative nominee.

'Unaffected'

Mr Gonzales, who is making a surprise visit to Iraq, has said the criticism does not affect him.

"Many of the people speaking probably don't have all the information about prospective nominees. What's important is what the president of the United States thinks about me," he said.

"That's evident by the position he has asked me to fill [as attorney general]."

Mr Gonzales was in Baghdad to meet US and Iraqi officials for talks on efforts to build an Iraqi judicial system.

He said he also wanted to show support for US soldiers on the Independence Day holiday weekend.

The Supreme Court judges - appointed for life - have the final say on US law and justice.

Mr Bush has said he will choose a nominee that the nation deserves and "Americans can be proud of".

Ms O'Connor, 75, has often cast the deciding vote on the nine-member court, leading some US commentators to call her the most powerful woman in America.

Am I the only one shocked by the high-lighted remark? He shouldn't be a judge because he refuses to be a slave to a single political party and outlook? That's disgusting, at best.

 

[Bradylama]

No arguments here. Besides, all Supreme Court Justices have indeterminable philosophies because they're individuals. You don't appoint a Supreme Court Justice to get your measures passed, it's been proven several times before that you can't predict their rulings.

 

[welsh]

Well Kharn, this is interesting.

I think folks on the left don't like Gonzales primarily because he's been attorney general after Ashcroft and because he's the one who signed off on torture and a few other liberties as being constitutionally kosher.

That conservatives are split over this, is kind of interesting. I had thought perhaps Protestant conservatives would break with Catholic conservatives as well as more than a few conservatives wanting to take a step back because "hey, maybe we've taken this conservative revolution thing a bit too far." That some conservatives don't feel he's conservative enough... that's scary.

Supreme Court justices, as are all members of the judiciary, are appointed by the executive and approved of by the Senate. This there is a lot of political control over who gets to be a Supreme Court Judge.

That said, sometimes Justices surprise their appointers. Stevens, the oldest judge is the leaning liberal but was chosen as a moderate (or maybe that reflects the leanings of the country from the mid 1970s till now). Souter is often seen as a liberal but actually he's a judicial conservative (in otherwords conservative about the rule of the court as changing, not with regard to political ideologies). O'Connor became something of a centralist although she was also chosen by a conservative.

The business of screening out potential candidates because their political ideology didn't mesh with those in power picked up during the Reagan years - realization that a lot of legal policy is made in the courts and thus the executive has a lot of power in choosing who gets on the bench. When Clinton was in office, conservative senators were in the business of backlogging or delaying judicial appointments in an effort to limit liberal judges.

Legally, constitutionally is this cool? Well when you think that judges get to sit on the bench for life, than this is one of the future checks and balances both the legislative and executive have in controlling the court.

Most people who vote probably don't think about the make-up of the court when they choose presidents. They should. These justices last forever and can determine the legacy of a particular president.

As for the prestige of the court- it's been under attack since the 1970s, probably because of the Warren Court's expansion of civil and criminal rights and the role back under Burger and Rehnquist. But that makes sense- major legal issues (not just abortion or church and state but copyright law, antitrust, securities legislation) get determined by this small group.

This trip to Iraq was, in my opinion, a move to shore up support for Gonzales. Hard to say what his chances are. He kind of reminds me of Judge Bork, a very conservative judge who got nixed under Reagan. Bork's problem was that he was too smart for his own good, and worse, he liked to brag about it. So he talked to much and got canned. Gonzales strikes me as a better politician.

 

[Brother None]

Supreme Court justices, as are all members of the judiciary, are appointed by the executive and approved of by the Senate. This there is a lot of political control over who gets to be a Supreme Court Judge.

You do realise this is actually NOT the case in many, many countries, right? In the Netherlands, for instance, the executive and legislative powers may never mess with the judicial system (though I'm sure there's some kind of emergency power the legislative power can use, not the executives, though, they barely have power). New judges are appointed by a meeting of old judges. It prevents quite a lot of abuse.

Legally, constitutionally is this cool? Well when you think that judges get to sit on the bench for life, than this is one of the future checks and balances both the legislative and executive have in controlling the court.

Most people who vote probably don't think about the make-up of the court when they choose presidents. They should. These justices last forever and can determine the legacy of a particular president.

But why does the judicial power need to be an extention of the legislative and executive powers?

Like I said, the legislative and executive powers are servants of the people, elected democratically and their policies should represent the will of the people.

The judicial power is not democratic and shouldn't be, it is subservient only to the constitution and should answer to no other institution. Why? Because it fucks with justice, that's why.

 

[Bradylama]

It prevents quite a lot of abuse.

That's the intention behind the lifetime appointment for Justices. In being appointed for life, they aren't subject to the whims of an individual backer or constituency. They're made for life, and their only duty is to the courts.

Admittedly, it's not as great as having new judges being appointed by the old, but you're still placing the decision making in the hands of people with their own personal agendas.

 

[Brother None]

That's the intention behind the lifetime appointment for Justices. In being appointed for life, they aren't subject to the whims of an individual backer or constituency. They're made for life, and their only duty is to the courts.

Admittedly, it's not as great as having new judges being appointed by the old, but you're still placing the decision making in the hands of people with their own personal agendas.

There's no viable alternative, judges are always elected with personal agendas as long as they're elected by people.

Hell, the important difference is not one of personal agendas but of political agendas. Judiciary systems should never be tied to political agendas. It's bad news.

 

[Bradylama]

Yet the nature of law is that it can have a severe impact on the political scene. Are you saying that judges have absolutely no political intentions in the reasoning behind their rulings?

 

[welsh]

Bradylama-
Honestly, having old justices appoint new justices would be also troublesome. The judiciary is inherently as an institution pro-status quo. The virtue of the legal system in the US is based on the notion of precedent from higher or past authority. Significant power falls to a justices discretion in their ability to interpret the law. In comparison to civil countries, where the rule of stare decisis doesn't apply, you'd build in a very conservative approach to law. But the problem is that law is normally responsive to social change, but slow. A system of appointment of new justices by old justices would mean that there is virtually no citizen control over the judiciary at all. Law must be responsive to the changes in society, especially when you consider changes in technology.

For example in one of the great anti-trust suits, the Court rejected an argument by Zenith that the japanese were price dumping on the US market in order to seize greater market share in order to seize long-term gains. For the Court that was an impossible argument to accept because of its philosophy of economics. In fact that was the Japanese plan and Zenith and most american manufacturers of consumer electronics took a big hit.

THe danger of succession by higher appointment has another good example- Papal elections. Historically the Pope was elected by both the Vatican and the members of the church. As the Cardinals got stronger, they got to control the vote- leading to a very traditional pro-status quo body.

Back to Kharn- THe thing is that judges come to be bench with both political and personal ideologies. I would argue that it would be better to have judges appointed without question of political philosophy but their willingness to support rule of law, to stand by the rule of precedent, and their experience on the bench.

But justices have to come from somewhere- they could be directly elected (and many state justices are elected to their state benches). But the notion of having the justices selected by the executive and reviewed by Senate allows both branches of government to "check and balance" the power of the court.

And the court's power is huge. Often the court steps into the law where the Congress refuses to act (for example, in environmental law), or interprets the laws that Congress could not give a precise definition of (for example- Sherman Antitrust law- "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." = every contract).

This way the court is held accountable to the political processes just as the court has the power, through law, to hold the legislative and executive branches legally accountable. Otherwise the court would be more powerful than the other branches because it would be subject to fewer checks. This was all part of the initial constitutional convention.

That the process of judicial appointment reveals some nasty political dealings- well that's how those branches have been acting for the past few years is just how politics plays out.

Should the judiciary be beyond politics- I can't see how that would be. Law is inherently about political bargaining. Ideally the justices should be above political dealing, but they also participate in the political process through their interpretations of law and constitutional provision.

And yes, while I am aware that other countries do things differently, that's not likely to happen here. In part that's because the US is still a common law system in which the judiciary and the legislation still wrestle over what is legal.

 

[4too]

Horse Shoes And, ... The Permanent Republican Majority

Horse Shoes And, ... The Permanent Republican Majority

... "We would oppose him because we don't believe he has a philosophy that we can determine. We are not enthused," Tom Minnery of conservative advocacy group Focus on the Family told the Washington Post. ...

Why are you troubled by the 'natural selection' of judges?
Are you advocating some variant of "Intelligent Design", that God watches over every sparrow or .. Justice ... that falls?

This is Social Darwinism on parade. Hair uncombed and fly open.

This is the politics, as usual, that constantly percolates in American Government.

Historically, the Supreme Court has had some pro slavery de-scissions.
In reality, one ideologue's 'judicial legislator' is another ideologue's upholder of the Constitution.

Historically, other presidents have openly tried to pack the Supreme Court.
Recall F.D.R.'s efforts, so IT'S O.K.
The Liberal Democracy, that helped defeat the Nazi's while the forefathers of 'conservative' hegemony were filibustering to prevent anti lynching laws , tried to pack the Courts. . IT'S O.K. - he - did it , so - they - can do it.


This is the ''hand grenades and horse shoes'' of American political persuasion.


The Bush Administration has crafted a Conservative Coalition. Each group lobbies for it's agenda. Many claim in a 'winner take all' spin, that they speak for the 260 or 280 million Americans. Winner take all, 51 %, and any "friend of W" claims to speak for all Americans. THEY WERE NEVER ELECTED, and yet they claim the 'speak' for All Americans, OR ELSE ....

This is the ''hand grenades and horse shoes'' of American political persuasion.

In this money dominated politics, it's these interest groups that proclaim their SPECIAL RIGHTS. You don't have to be "Black" to have 'civil rights', and you don't have to be - queer - to have SPECIAL RIGHTS.
'Special rights' that's the club all ideologues swing. Left hand, right hand, or designated, third party, hit-man ....

This is the ''hand grenades and horse shoes'' of American political persuasion.

I'm sure the 'working class heroes' for Nadar, and even the fence sitting spoil sports, self proclaimed 'Libertarians', would rather speak for themselves.
In this TWO party system,
they will have to wait and see if a Republican or Democrat, ELECTED OFFICIAL , mirrors their opinions. Perhaps vote for them, IF before the next 'beauty contest' - election, they haven't been purged from their party by the ideologues, or gerrymandered out of a seat in the vote rigging that is 'SELF evident' in mapping out American districts of representation.

Stacking the deck, they did it, so, IT'S O,K, Light a candle to Saint Machiavelli.

The men who have been instrumental in forging the Bush Victories have been VERY open and clear about their objectives. They are marching toward The Permanent Republican Majority. If and when there is a serious economic crisis in America they will have 'a lock on' the political process. No F.D.R. populism will
dampen the desert in the next depression. The party of Hoover, and the filibusters for lynch law in their 'Conservative Coalition" will have reserved all seats at the public trough.


So, it's - not - insane.

It's not about right or wrong.

It's all about power.

It is about winning,

and then letting God sort out the casualties.

This is the ''hand grenades and horse shoes'' of American political persuasion.

This is the 'shit fight' they will never speak of in public school civics.


All the lies and posturing, all the bargains and buying of influence, all the spin and whisper campaigns, are the' storm and fury' of the political process, how much it 'signifies' depends on who wins.

So it's all O.K., it's - not - insane, the ultimate motive is clear, Total Victory, and the means to that end will be as divine or satanic as those that rewrite history will dictate.





4too

 

[Brother None]

Honestly, having old justices appoint new justices would be also troublesome. The judiciary is inherently as an institution pro-status quo. The virtue of the legal system in the US is based on the notion of precedent from higher or past authority. Significant power falls to a justices discretion in their ability to interpret the law. In comparison to civil countries, where the rule of stare decisis doesn't apply, you'd build in a very conservative approach to law. But the problem is that law is normally responsive to social change, but slow. A system of appointment of new justices by old justices would mean that there is virtually no citizen control over the judiciary at all. Law must be responsive to the changes in society, especially when you consider changes in technology.

And it is.

Look, the judges aren't legislators.

In Holland, the Executive power has legislative power as well as the Legislative Power itself, though the Second Chamber always has the final say in it. If a situation changes, someone will bring out a new law or adapt a law and the Judges have to follow this policy, while the actual check to see if it doesn't conflict with any of the ground-rules of the Constitution is that of the secondary Legislative Power, the First Chamber.

It's not a judge's job to adapt the law to fit the current situation, that's a democratically elected person's job. Interpretation of a law is tricky, yes, depending on situations, and the outlook of the judge can heavily impact that, but I think that's a reason the more to make a judge non-aligned.

Back to Kharn- THe thing is that judges come to be bench with both political and personal ideologies. I would argue that it would be better to have judges appointed without question of political philosophy but their willingness to support rule of law, to stand by the rule of precedent, and their experience on the bench.

But justices have to come from somewhere- they could be directly elected (and many state justices are elected to their state benches). But the notion of having the justices selected by the executive and reviewed by Senate allows both branches of government to "check and balance" the power of the court.

And the court's power is huge. Often the court steps into the law where the Congress refuses to act (for example, in environmental law), or interprets the laws that Congress could not give a precise definition of (for example- Sherman Antitrust law- "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." = every contract).

This way the court is held accountable to the political processes just as the court has the power, through law, to hold the legislative and executive branches legally accountable. Otherwise the court would be more powerful than the other branches because it would be subject to fewer checks. This was all part of the initial constitutional convention.

That seems to bring up an interesting point, namely that Dutch judges tend to stay out of lawgiving matters. Individuals can sue politicians or the State and they do so on a regular basis, but they can only do it by letter of the law, not to stop the law.

The problem I see with the States is that the courts are a part of the Law-giving aparatus, which makes little sense, they should only be a part of the Execution of Law. Law-giving is a democratic institution while the court is not.

Talk about a mixup of powers. Don't get me wrong, your system does make sense as a cog in the huge wheel you like to call Checks and Balances, but what do you do, really, when Checks and Balances screws up?

I think the current situation, that of Total Republican Domination which 4too describes so well, is scary and scarcely democratic, to say the least, and is showing a little tear you got in your big wheel of Checks and Balances, there

 

[welsh]

When checks and balances screw up, we got trouble.

For example, if a justice passes a law that the executive doesn't like, the executive could say, "Oh yeah, so enforce your decision."

To be honest, the power of all the branches kind of overlap.

OK, let's divide this three ways-
Law executing- the executive
Law making- the legislative
Law adjudicating- the judiciary.

For example the executive runs the administration which also establishes a lot of the "governing law" and can even adjudicate decisions under administrative regulations. - SO the executive has limited law making and law adjudicating powers. Add that to the president's power of "executive orders" which are almost the same as legislative law, the differences get even more murky.

The legislature also has some judicial and executive powers. Through its oversight powers it can make sure that the executive is actually doing what it is supposed to. It can impeach judicial and executive officials. It can run fact-finding missions and call witnesses. During the Red Scare, the Congress "tried" suspected communists.

ANd if the judicary has some legislative functions because it is left to figure out how legislation fits with precedent or to try to make sense out of what the legislation is trying to do, it can also overrule. It can even act with executive powers. When school districts refused to desegregate, the court could intervene and make that desegregation happen. Through the court's "special" powers of equity (which incidently would be dangerous to get rid of because it is in this power that private property is held to be special and entitled to special protection) it can order executive orders to carry out functions just as it can overrule legislation which it finds bogus.

So yes, it gets messy.

One of the reasons I prefer the judicial branch to the others is that there is a sense of judicial restraint and deference to the other branches. There are issues that the court just won't take on, or takes on very carefully in part because it knows the limits of its power.

Congress is weakened by it's need to respond to constituents and regional or local demands. In the end it must answer to its people and to get things done, it must bargain and compromise. This is why Senators look so flakey- because they are constantly in this position of making compromises and, like settling a law suit, no one is every fully happy making compromise. The executive, if unchecked by Congress (which is more like to restrain the executive than the judiciary) can easily become imperial. Reagan and Nixon were, for instance, very imperial presidents.

So yes, Total Republican Domination is scary. For example, when Bush decided to pull his Faith Based Initiative scheme by executive order. The court wouldn't buy it, nor would Congress. But W had to satisfy the religious right.

IF the Republicans hold all three branches than the only security that might be left is (1) It's still a federal system and states can still do things their way or (2) institutions shape the preferences and decisions strategies of their members- and the institutions were made to conflict with each other, and thereby limit federal power.

So perhaps the nomination of Gonzales is showing something else-a division between the White House and the Congress. W can't be reelected, but Congressmen live for re-election. IF the conservative move goes to far to the right, it might alienate constituents.

If the left can be charged with going to far to the left during Johnson's Great Society and the Warren Court expansion of civil rights (hey, afterall too much civil rights is not good, right?) than perhaps the right can make the same mistake with it's own Christian revolution.

SO yeah, it can get confusing.

But the idea of congress and the court being both able to determine the law essentially limits the power of the majority from determining too much law and allows law to stay conservative if not status-quo, and that means stable. The power of the court also comes from its common law traditions, a tradition that has been etched away for the past 50 years or so as statutory law overrules common law precedent.

European Civil Law systems may be more streamlined and more effective, but the US system is built more towards compromise, negotiations and stability. THose were the values of the framers- to maintain a federal government of limited powers that would not overreach itself vis-a-vis lower government authorities.