Saturday, March 26, 2005

Retain Them? I Think Not

In forthcoming elections, my response to each and every ballot question to retain a sitting judge will be NO.

Here’s my opinion:

A court order can be in violation of the law. It is not a law unto itself.

Laws are made by legislators and the executive branch. Judges are not constitutionally empowered to make law. They are to interpret circumstances as they fit under the prescribed laws, not as they fit into other court decisions which are NOT laws.

A court decision is just that and no more. Precedent is not law, and new laws can be made by our elected legislators that supersede precedents, because laws can be changed.

Judges are not empowered to order the death of innocent citizens in a non-criminal matter, particularly when the burden of proof is anything less than reasonable doubt.

The judicial branch of government has no right to impede a criminal investigation ordered by the executive branch.

We have reached the point where we are ruled by the judicial system, rendering the legislative and executive branches impotent.

I don’t have the time or the resources to figure out if the judges who will be appearing on my future ballots agree with my opinions or not. They surely won’t tell me, so I suppose I would have to wade through their decisions looking for clues about how they think. It sounds as if it would take a lifetime, and I could never be certain I interpreted their thoughts correctly.

So I’m afraid I’m going to have to vote to throw out the good with the bad. That is a shame. And I don’t have a say-so about every judicial seat, which is also too bad. But we are unable to root out any corruption if a court order can stop a criminal investigation before it has even begun. The only way I can see for me to mitigate the damage of at least some corrupt judges is to recycle them right off the bench in every election, and the consequences be damned.


At 5:30 PM, Anonymous A Law Student From Ohio said...

Although I disagree with your views concerning euthanasia vs. murder vs. the death penalty, I can respect your attempt at activism. Unfortunately it will not work. Voters only pick state and local judges. Federal judges are appointed for life. Appointed Supreme Court justices can overturn any decision the elected judges submit. Also, it is pretty easy for someone to get a case into federal court, thus bypassing any elected officials at all. And you mention constitutional propriety in your blog - well this practice is spelled out clearly in the constitution, and it was made that way because it's best that way.

Don't fool yourself into thinking that judges have any less right to make laws. People act as if legislators have some added legitimacy somehow - why? Because they answer to the public? But do they? Do you have any idea what your elected officials' opinions on farm subsidies are? Term limits? Tort reform? What makes your legislator's decision on farm aid any more legitimate than that of a judge? You didn't vote for his view on farm aid. I mean, aside from a few key issues like gay marriage, abortion, war, and taxes, 99% of America has no idea what their legislators are doing. And even if they do, you can only pick a legislator that agrees with you on most things. So let's say your legislator agrees with you on everything except Schiavo. You wouldn't have known this ahead of time, but guess what? You just voted for Schiavo to die.

In many ways the court is more suited to legislate than anyone else. They all have extensive legal training, whereas many state and local legislators are part time public officials who ran against no one for a vacant seat, with little or no experience, much less legal/historical training. They don't know what has worked and failed in the past for America.

Also judges don't have to worry about public opinion and can do what they, through their endless studies and experience, HONESTLY believe to be right (whether you or I, people who rarely even think about such issues, agree), and they CANNOT BE PAID OFF BY PACS! The millions of dollars given to congressmen have infinitely more influence on the decisions they make than their concern about whether they will lose a vote from someone in their state who probably will vote for them next time anyway, as long as they have the proper letter (R or D) beside their name.

I understand your frustration. I was frustrated when Bush got reelected constitutionally, and you are clearly upset when judges constitutionally do things that you don't like. But it is completely legitimate and constitutional. For a little lesson in legal history: courts have had the power to give equitable remedies, such as injunctions or other court orders, since Saxon England. Why? Because in cases of emergency, we want a group of people who can act with a mind for speed and ethics, without having to flounder around taking polls asking the opinions of people who honestly are too busy putting food on the table or watching March Madness to make an informed decision anyway, or to ask all their campaign donors what they want them to do. Judges fill this role. They can follow their beliefs regardless of what the public thinks (which it rarely does).

And in the end, guess what? The public (if you believe congress actually answers to the public) gets to have the final say! The courts have to make the emergency decision, to remove the tube, and now the public, through congress, can make a law to overrule the decision. Isn't that democracy? If over half of the elected officials, plus the president, agree with you, then the tube gets put back in. Simple as that. It's the constitution. It's America. We need people who can act fast, and quite honestly, I don't see what makes them any less trustworthy than popularly elected politicians. In fact I trust them more. And if they start to act unconstitutionally, even the appointed ones can be removed by POPULARLY ELECTED OFFICIALS. So if you believe that democracy is the be all, end all, and that popular election somehow endows a politician with legitimacy, you have nothing to worry about! Democracy will cover it.

On the other hand, for people like me, who think popular election is little more than a symbolic smokescreen that keeps Americans content in thinking they control their own destinies, then you also have no problem with what these judges do. They have as much legitimacy as legislators, as election has no magical powers.
Thanks for reading.

At 5:57 PM, Anonymous A Law Student From Ohio said...

One more thing I left out. Sorry to be so long-winded:

"Laws are made by legislators and the executive branch. Judges are not constitutionally empowered to make law. They are to interpret circumstances as they fit under the prescribed laws, not as they fit into other court decisions which are NOT laws."

They dont interpret the circumstances under the law. They interpret what the law requires under the circumstances. Their job is to figure out what Congress would want to happen in this case. That's what the Constitution tells them to do and that's what they did here.

Legislators make the laws. Unfortunately, there are many confusing situations where it isnt exactly clear what a law requires. Language is often ambiguous, vague, or unclear. PACs and lobbyists often sneak in unclear words that they feel might help them in future court cases. The court's job is to interpret what these laws mean . How do they do this? They look to earlier precedent (common law, which strictly speaking, is not law, and which Congress is totally free to overrule, at which point the Court can no longer consider it) to see how things like this were interpreted in the past. If courts have already decided in the past what those words mean in that context, congress could have and (assumedly did) looked back and phrased their law based on these cases.

I am not sure what you imagine is happening when courts "make" law. I've never understood what people mean when they say this. No "law" has ever come out of a court. At worst, courts interpret a law to mean something Congress didnt intend it to mean, at which point congress can pass a new law invalidating the court's decision.

What happens is someone brings a law to them and says "Does this law mean that I can take out the feeding tube or not?" And the court examines the law and hears arguments and makes their decision. They try to figure out what the law means. The law doesnt mention the specific case of a person brain-dead for 10+ years, so they have to figure out what the law would say in this particular case. They do not stand from on high and write out a new law that says "People can now be killed without a criminal trial because we decree so". Any decision they come up with is based on a possible interpretation of the meaning and purpose behind the law that congress made.

If Congress wants to avoid a certain interpretation, then they just need to be more careful in their wording. The court can only come to an interpretation that congress's law might arguably be saying. No court can overrule the direct language of congress just because they dont like it and say that a law that says B really means A. Courts don't legislate.

At 6:22 AM, Blogger Silent Rain Drops said...

Thank you, Law Student, for your detailed comments and much-needed information (particularly about which judges appear on the ballots, since I am woefully ignorant). I really want to read them more carefully, but will be on a short hiatus for a few days. I will definitely come back to the subject and your comments.

I am glad that you noticed my confusion and feelings of futility in this matter, and appreciate your viewpoint.

At 8:26 AM, Anonymous A Law Student From Ohio said...

By the way, I hope I didn't sound aggressive or of my "colleagues" read it and felt my tone might have been a little sharp. In law school, I think the norm for our particular forum is energetic debate and few-holds-barred arguing that some people outside of law school/practice might be apt to take more personally while we understand it is just in the nature of our field. I sometimes forget that outside the job it isnt a great way to make friends.

I look forward to your comments and I would be willing to answer any questions you might have. Even if I don't know the answers I may have more resources or time to figure them out than you, so I could help that way. Lately I've spent a lot of time debating the proper role of the courts in this nation so I would enjoy any research. I wish everyone could have the knowledge I've been given about how their government works; as voters they deserve to know. Unfortunately not everyone has the time or desire to learn the ins and outs of our constitution. If everyone was busy learning to be lawyers, we'd have no teachers, doctors, businessmen, office workers, construction, etc, and lawyers would suddenly seem pretty worthless - though some feel that way already :)

In sum I just don't want to sound preachy or like a know-it-all about the law (because i certainly do not) but rather someone who has had the chance to learn more than the average American about a certain topic and who feels that sharing the information can hopefully help others learn it better and have a better idea how they want to apply it to their civics/voting, etc without having to spend a fortune on law school. (and who remembers what they learned in high school Government anyway?)

At 8:06 AM, Blogger Silent Rain Drops said...

Ohio Law Student, I hope I haven't lost your attention. I'm sorry it took me so long to get back to this particular subject, but as I mentioned, I wanted to give it the time it merits, particularly considering how willing you are to answer questions. (BTW, your tone was fine. Perhaps a bit condescending, but then you know more than I, so I would expect you to have a teaching voice).

Here are some questions I had as I read your commentary:

1. The Schiavo case was decided by a state judge (is that correct?) and the appellate court and federal judges refused to review his decision on an evidentiary basis. As I understood it, it required an act of Congress for the Schindlers to get their case before a federal judge. Is it really "easy" then to get a into federal court? Would it be true, if I lived in Florida, that Judge Greer would come up for retention on the ballot?

2. Judges may not campaign as legislators do, but surely they can be bought just as easily, if not more, since they have no constituency watching their behavior? (Yes, I concede your point that I don't know everything my elected officials are doing, and that I have cast votes for some who do what I do not want, or don't do what I want. It is an imperfect system, and I am one small voter.)

3. Federal judges are appointed for life - but what about "good behavior?" Isn't their length of service actually supposed to be based on that, and not natural life? Do you think we have a capable review process for judges now, and do we use the power of impeachment often enough?

4. You wrote, "They interpret what the law requires under the circumstances." This is much better than what I originally wrote.

About judges making law - have you reviewed the Roe v. Wade and Doe v. Bolton decisions? The Supreme Court apparently wrote these decisions to be used together, defining the "health" of the woman in the Doe case, but not in the Roe case. (This is what I have heard) They wrote their decisions with legal challenges in mind. Isn't that an attempt to use the court system to enact law or prevent the enacting of laws that conflict with the courts' agenda?

Allan Parker of the Texas Justice Foundation recently said, in regard to these decisions, that the Supreme Court took away the power of the legislature to respond to new knowledge and new science, because they can and do refuse to hear new evidence in these decades-old decisions based on out-dated information, and every law restricting abortion is cut down because of them. How would you respond to his statement? If it isn't true that the courts can trump the legislators, then why are states whose popularly elected officials want to restrict abortion prohibited by federal court decisions from doing so (and even federal laws don't stand, as in the Partial Birth Abortion ban, which has popular support)?

Doesn't this result in a populace ruled not by majority opinion reflected in elected officials, but by judicial oligarchy instead?

5. What can you tell me about this from Federalist paper #63: "the House of Representatives will at all times be able to bring the Constitution back to its primitive state/condition"?

6. If judges rely so heavily on precedent and previous decisions, why, in the Schiavo case, does it seem they ignored the burden of proof established in the Cruzan case? I read that the Cruzan decision included a proviso that evidence of the patient's desires had to be clear and convincing. In the absence of a written directive, and with conflicting eye witness statements, how does Greer's decision that Terri Schiavo would want to die work within this standard?

If you are still here, thanks - I look forward to your response.


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