What real “political pressure” is a Federal Judge under, anyway? They’re virtually impossible to impeach for anything they do in their capacity as a Judge, so long as it’s not blatantly illegal. Politcians from whatever Branch can snipe all they like about rulings they personally deplore, but it seems to me there’s no substantive threat Fed. Judges need to fear, so there’s little practical importance to what Rehnquist is saying. If I had to speculate, my guess is he’s expressing annoyance with the likes of Delay and other radicals of any political stripe for having the temerity to bad-mouth the Federal Judiciary in public by making toothless threats and engaging in other acts of impotent demagoguery.
Please – stick to this this time, as I’ve begged you before – I told you two months ago, in the thread I linked at post #27 above, that I didn’t have anything to discuss on legal topics with people who refused, utterly refused, to read the law as it actually exists [that’s you]:
and, from the same post, after Elvis continued to respond to my posts with proclamations of victory as to his views on what the law must and ought to mean, without benefit of having read any of said law, concluding by instructing me to “shut up”:
Yet you kept joining (and here keep joining) legal issue with my posts, demonstrating your predeliction for prancing about legal issues with no legal knowledge, declaring victory at every step of the way. Bricker’s humilated you on your ignorance of procedure (see same linked thread), DCU’s humiliated you on judicial activism case-law that you never read, and your failure to fathom that rational basis and equal protection are two different doctrines, and it would be piling on for me at this point to do so any more.
So again, promise me: stop responding to my legal posts, and I’ll stop responding to your uninformed non-legal vitriol and unfounded triumphalism.
Others can judge who’s ahead on points as to legal “coherence.”
Remember 1998? All it takes is the proper majority in the House to impeach, and in the Senate to convict, just like for the President. And there’s no specific statement on what constitutes grounds for impeachment, just the generalized “high crimes and misdemeanors” – which can mean whatever the House wants it to mean.
In case you’ve missed the gist of this thread, there’s been a recent upsurge in the “let’s throw out the judges who rule in ways we don’t like” – including some of the Republican Congressional leadership. And that’s what Rehnquist, and a lot of us, are arguing against.
Of course, Huerta seems to feel that throwing out any judge who doesn’t agree with “what the law says” – i.e., his interpretation, which is obviously (to him) the right one – is completely legitimate. (See above, when he isn’t superciliously refusing to answer questions from those on the opposite side of the argument, and then accusing them of disregarding his points.)
My thanks to 2sense, who complied with my request – though I disagree with one or two of his assertions on what the cases identified. However, I’m going to bow out, as it’s clear that no dialogue can be conducted in this thread.
Ah, my child, as with all things related to the law, precedent and stare decisis are, alas, also within the eye of the beholder.
For those who take an, er, “strict constructionalist” view of precedent, a precedent is binding only if the following three criteria are met:
- A precedent set by a higher court with jurisdiction over the court at issue;
- the same issues of fact; and
- the same issues of law.
Indeed, if one were to take an absolutist POV, only if the cases are indistinguishable except as to the identities of the parties is a precedent truly binding. In my old law firm, we called these “green elevator” cases (long story - or rather short one, but of no interest to anyone but myself).
In all other situations, there may be differing issues of fact and law that, in the opinion of the judge, make the precedent inapplicable. A dispute would, of course, arise as to whether those differing issues are material to the determination of the case.
Sua
Inventive, but it relies on legal constancy and a completely dependent judiciary to be effective. Judges can always claim that tangential changes in the law void past decision. Of course you could void the ability of the elected bodies to enact measures to change older policies, but that’s the whole point of the amendment process. And in your system, anyone can still impeach/shun a judge for a valid but unpopular decision. You’re only looking at it from the standpoint of good people getting bad judges out of power, not from the standpoint of bad people getting good judges out of power.
According to this site, only 13 Federal Judges have been impeached in the entire history of the country, and of them, only seven were convicted (one resigned). Interestingly, the latest convicted was accused of the same crime as Clinton: Perjury. I highly doubt “judicial activism” will ever get a majority of anything in the House, and quite certainly not in the Senate, no matter what noise gets made by Delay or his ilk.
Not so – I haven’t said that, and my question as to what you meant by “conflicting political philosophy” was based on honest uncertainty as to what your proposition was (I assumed, I hope not wrongly, that your proposed debate was also honestly meant). I haven’t advocated booting judges as freely as we routinely boot patronage appointees – I’ve just pointed out that there is a continuum of views as to when people can be relieved of duty/employment in the federal system (or deemed to be acting illegitimately) based on either their adherence/non-adherence to existent law, or on their political bent/ends.
And for Pete’s sake, give me half a moment on the case-law challenge (I assume you were faulting me for not taking up your gauntlet; you can’t really mean Elvis’s ‘questions’ as I think his record of not raising a meaningful legal question is unblemished):
Why not start with Blaisdell, which I mentioned, in which the Minnesota legislature decided people didn’t really have to pay their mortgages if they didn’t want to. This is not a bad example of judicial activism, albeit in a mirror image of the usual situation (the usual situation these days involves creating a non-textual right where the Constitution didn’t set one forth) – here the Court chose to ignore one of the comparatively few explicit prohibitions that clearly does exist in the Constitution, the prohibition (Art. II, Section 10) on States impairing contractual obligations (and hence, the right, of constitutional dimension, for obligees to be paid).
More to follow.
I’m really not picking on you, 2sense - I’ll go after other posters, I swear, but you have some good thoughts marred by some basic misunderstandings.
Your solution would solve little. I’m not sure what you mean by “practices,” but prohibiting the overturning of precedents older than 25 years (i) would do little to prevent “judicial activism”, and (ii) is kinda goofy.
First, overturning precedent is very rare. For example, you list four cases, Brown, Roe, Goodridge, and Lawrence, as examples of judicial activism. Would it surprise you to learn that in half of the cases you list there was no overturning of any precedent? That’s right; neither Roe nor Goodridge overturned the holding in any previous case.
In Goodridge, the court noted that there was no precedent: “Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court.”
Indeed, far from overturning any precedent, the Supremes in Roe took the position that their decision was the logical application of the precedents set in Griswold and Eisenstadt, and they may well have been correct in that position.
As I stated in my previous post, precedent only binds when applied to the same issues of fact and law. So, rather than overturning old precedent, judges most often simply find that either the material facts or the material issues of law are different in the case before them, so therefore the old precedent is simply inapplicable.
As for the second problem with your proposed solution, your solution is goofy. The fact of the matter is that times change, and therefore the material facts change.
Simple example - had your 25-year rule been in effect in the early 20th Century, we would not have a commercial airline industry. Under the old precedent, you see, a property owner owned not only his land, but “from the depths of the earth to the reaches of the heavens,” i.e. everything below and above his land. This was a sensible rule when there weren’t airplanes, but once airplanes were invented, it made an airliner a trespasser on every property it flew over. The airline corporation would be liable, both civilly and criminally, for hundreds of trespasses committed on each flight, or they would have to negotiate passage rights with (and have to pay) each property owner on the flight path. As this would make the airline industry economically unviable, and prevent the mass of the public from using this new form of rapid transport, the precedent was overturned.
Sua
Well, I wrote a long reply and then closed the wrong window. So here’s the short and sweet version:
I agree that judicial activism is usually a strawman. But judges are just like everyone else, give them power and they will abuse it. So here are a few examples that sprung to mind:
-
Roy Moore*
-
Joseph Tarbuck’s 1995 decision to violate a child’s best interest by giving custody to a murderer rather than a lesbian.
-
A canadian judge’s decision that sharing files on the internet does not violate intellectual property laws.**
-
Priscilla Owen’s interjection of religious considerations into the process for parental notification bypass in Texas, without statuatory basis and in a blatant attempt to void legally established processes in order to impose her religious and political views.
*Ah, but nobody ever said judicial activism was confined to statuatory decisions and not their conduct of the various obligations of office, now did they?
** I’m not more specific because everything I thought of to Google for drowned me in warez sites, and Slashdot is running slow. I also accept the possibilty that this was technological incompetence, but I don’t see it as probable.
But that’s not an example of “such a threat” (a threat of impeachment). The law as approved simply statutorily limits federal judges’ sentencing discretion (which is an acknowledgment that without statutory limitation, the judges had impunity in widely granting downward departures from the previous version of the sentencing guidelines). Congress wouldn’t be legislating to limit judges’ discretion if it thought it could or was willing to simply skip that step and impeach.
Did you mean the earlier reference to a possible subpoena of the dude’s sentencing records by the Judiciary Committee? That was characterized as “unprecedented outside of impeachment proceedings,” but that was mere lawyer advocacy by a supporter of the Judge trying to whip up opposition to a subpoena that never issued. No one on the Judiciary Committee, to go by your article at least, had proposed, threatened, or mentioned impeachment. Indeed, they may have been seeking such records precisely to lay the groundwork for a non-impeachment approach (i.e., tightening sentencing guideline discretion (as actually occurred), because impeachment was regarded as impractical).
If the ABA, in opposing such subpoena, referred to it as a “witch hunt,” that wouldn’t mean that Congress was in fact threatening to burn federal judges for communing with Satan.
Mmm, I think that it’s a legitimate cause for concern. I’m living in a state where another person who many viewed as a “loonie” managed to get the ball rolling and throw the governor out. I’m not commenting on whether that was warranted or not, but many people have come to realize that if they get a few like-minded people to go along with them they can have a very large impact.
I think that judges should be removed from office because they are making poor legal decisions, not because somebody disagrees with a decision and gets their drawers in a knot.
But right now federal judges can’t, realistically, be removed for either reason. And I’m not sure I understand your distinction fully – I would not need any other reason to “disagree with a decision” if it were shown to be a “poor legal decision”
In my view, a “poor legal decision” would include one that departed radically from precedent, the text of the Constitution, and the limited enumerated power of the federal government (including the judiciary) to achieve a results-driven outcome. YMMV.
How about my earlier non-hypothetical hypothetical: how about that New York federal judge who has by all accounts been scandalously slow in issuing opinions, apparently won’t or can’t manage his docket or get his work done, and is leaving widows and orphans with cases before him in limbo for years on end unless they can persuade the appellate court to try to bully him into action?
What’s the remedy against his form of “bad judging?” Is it that appellate court? Not really – they can’t possibly get involved in every single case, and dislike micro-managing cases anyhow; it is doctrinally difficult for them to overturn shoddy factual findings, due to reluctance to second-guess the finder of fact; many of the trial judge’s decisions will be reviewed under an extremely lenient “abuse of discretion” standard (assuming the wronged party can afford an appeal); and many bad procedural of other intermediate decisions simply aren’t subject to “interlocutory” (basically, middle-of-the-case) review at all.
Answer, then: there really isn’t any remedy. This guy will never be impeached for sloppy, shoddy, slow judging that screws his parties, just as Thurgood Marshall never came close to being impeached for allowing his clerks to cast automatic votes so he wouldn’t have to miss the Golden Girls (or whatever he was doing) to even take a phone call to pretend to consider the facts of the case.
In practice, judges who refrain from such overt shoddiness do so because the Administrative Office of the U.S. Courts keeps and publishes statistics on case dispositions, and some judges, being competitive, try to keep their case disposition rates high (which can in turn lead to bad judging when they rush or bully parties into settling non-meritorious cases to avoid long case-pendency times on their records). But what about the judge who realizes he’s reached the limit of his ambition or competence, has a cushy six figure job, and has neither the political clout, the remaining life expectancy, nor the ambition to seek elevation to a higher court? Who scares him? The Administrative Office? Please. They can only shame, and then only in the limited world of fellow judges. Congress? Nope.
I’m not even advocating for a specific remedy here. I’m just trying, at this point, to make clear that, at the moment, there are no satisfactory, readily-available remedies to systemically-bad substantive judging, or judicial unprofessionalism, on the federal bench.
Technically, you mentioned bitter-enders, and I can only assume that by “bitter-ender” you mean “people who peskily insist on raising difficult substantive issues with ElvisL1ves’ favored jurisprudential outcomes.”
You made the assertion. You back it up.
Demonstrate the rationale behind your statement that these issues have somehow been settled with finality on this message board, or admit you’re (yet again) just talking out of your ass.
Winning a debate involves more than just unilaterally declaring victory and patting yourself on the back.
Such as what? Please point out what points Huerta is talking past.
It’d be a refreshing change of pace if you actually engaged in the substance of the discussion instead of just hand-waving away your opposition, you know.
Wrong on all counts about this case. The judge in question correctly applied Canadian copyright law. Shortly before the onset of the initial incarnation of Napster, the Canadian recording industry successfully managed to convince Parliament to pass copyright legislation making it completely legal to borrow a recording from someone and make a copy (but not to make a copy for someone else), and in exchange the recording industry got to collect a levy on all blank CD-Rs sold in Canada. Sweet deal, they thought. People are going to be burning CDs just like they always used to dub cassettes, and of course no one will be able to stop them, but we’ll collect on every blank cd sold whether it ends up being used for music or not.
Then Napster showed up. And now, barring new legislation, the p2p is entirely legal here, and there ain’t nothing the recording industry can do about it.
Anyways, the judge didn’t actually rule specifically on this matter. The judge merely ruled that ISPs didn’t have to give up the identity of their customers so they could be sued, on the grounds that there was no evidence of any legal wrongdoing.
I see your point and perhaps my gut reaction is like the old saw about obscenity (I know it when I see it), but I’ll point out that a lot of people will view any decision that they don’t approve of as WRONG. Personally I am quite capable of not LIKING a decision but agreeing that it’s the legally correct one, and just because I’m on the losing end of one of those decisions it doesn’t mean that I think the judge should be removed from office, unlike some of the folks who are pushing these recalls. To me that looks like the quick road to disaster.
Regarding the NY judge, I think that I read about him in the Recorder (IANAL but I work at a big law firm)…certainly someone should be removeable for incompetence - if your job as a judge is to render timely and legally sound judgements and you are failing to do those things (one or the other, or both) then you are not doing your job properly and if you can’t shape up then you should ship out.
But whoever is making that decision should be using some more objective criteria than the guy from the Society For Moral Fluffy Bunnies or whoever it is this week. I don’t know if judges have the equivalent of “performance reviews” from their boss or a panel of other judges or what, but I’d trust that review more than a snap decision by Joe Schmo.
Something similar happened in the U.S. in the Verizon case (D.C. Cir.) and the Grokster case (9th Cir.). The S.C. will be re-considering these issues on certiorari. I may concur with Gorsank here on these not being good exemplars of “judicial activism” – the recording industry got some pretty stiff laws passed, but did not envision decentralized P2P networks at the time.
A somewhat better example of “judicial activism” in the electronic realm might be the Federal Circuit appeals court decision in the Lexmark case, in which they decided that the Digital Millennium Copyright Act couldn’t possibly have meant to apply civil and criminal sanctions to access-control circumvention unless it directly facilitated actual copyright infringement – when the statute doesn’t appear to contain any such narrowing limitation. Though that may be more of an instance of a court simply not believing that Congress could have been lobbied so successfully as to get such harshly punitive provisions as the recording industry probably actually did in the DMCA anti-circumvention provisions. If the court was instead substituting its own policy views for how broadly copyright-type laws “should” extend, even in the face of Congress’s having intentionally stretched them even further than anyone had ever thought copyright reached, then yeah, that would be a form of activism, and not really appropriate (if nothing else, it would inappropriately spare Congress the embarrasssment of having to admit to, and re-write, the more one-sided provisions of DMCA).
[QUOTE=Valgard]
I see your point and perhaps my gut reaction is like the old saw about obscenity (I know it when I see it), but I’ll point out that a lot of people will view any decision that they don’t approve of as WRONG. Personally I am quite capable of not LIKING a decision but agreeing that it’s the legally correct one, and just because I’m on the losing end of one of those decisions it doesn’t mean that I think the judge should be removed from office, unlike some of the folks who are pushing these recalls. To me that looks like the quick road to disaster.
[quote]
Well, I suspect we close to agree even if we’re grappling for terminology.
Trust it or don’t (the Administrative Office case disposition and reversal-on-appeal statistics are probably the closest anyone comes to a “performance review,” and the only “boss” judges have is the chief judge of their district or circuit – whose supervisory powers are, once again, basically limited to (1) name-and-shame; and (2) petty administrative deprivations like not assigning disfavored judges to special panels or other plum assignments, or giving them bad office space. The point is, though, there’s no real effectual review that can force a rebellious or stupid or ideological or favortist judge to do his job fairly, competently, and quickly. Which is why that N.Y. judge seems so unfazed by any criticism; he can continue doing this till he’s 80, 85, 90, pulling down beaucoup bucks all the while, and no one can stop him. Example no. 2: Congress has been considering splitting the Ninth Circuit into three separate Circuits. Some speculate that they are thinking of this because the Ninth Cir. is notoriously liberal, and allegedly off the rails as far as following law and precedent (they’re routinely reversed by the S.C. more often than any other Circuit). Yet all the reversals and criticism in the world don’t change their behavior, such that Congress may be driven to the indirect, and possibly perverse, end of re-mapping the Circuit as the only possible way of diluting its wackier members.
Doesn’t sound to me like the judges on that Circuit are too afraid of any review by a boss or superior authority when the time comes to impose their peculiar views of the law on parties coming before them.
Not quite. All of this is established and thus can be disestablished by statute. If there is strong sentiment against an old precedent or practice the Congress can carve out an exception or, if necessary, abolish the entire plan and reenact it once the courts have ruled against the offending situation. Of course, it’s possible for the new system to become traditional making exceptions constitutionally simple but politically difficult.
You haven’t proven your claims in this thread. Perhaps your claims about what happened in the past are true but haven’t provided any evidence here and are refusing to back them up here. Clear? I vaguely recall discussing judicial activism in the past but don’t remember it the way you are describing. And please, don’t tell me that I can use the search engine just as well. It’s your point. If you can’t be bothered to back it up I’m not about to do so for you.
I’m having trouble parsing this whole quote. It seems clear that you are saying that the courts do indulge in politics but I don’t know if you just mean that’s how it is or if you believe that’s how it is and how it should be. If it’s the latter I would strongly disagree. I want to depoliticize the courts. I realize we can’t completely eradicate the politics, particularly so long as we retain judicial review, but this represents my attempt to limit them.
I don’t get the 2nd sentence at all. I thought I had made clear what principle was behind my objection. I don’t want the courts to take it upon themselves to overturn long established precedents and practices. I don’t know what you mean refering to “universal truth”. That’s just how I feel about it. I realize others disagree if that was what you were getting at. The first part of the sentence is giving me even more problems. I don’t know if by “political actions it takes” you mean particular actions I find distasteful or the manner in which it takes political actions. What I don’t like is the manner of the actions, whether or not I am happy with the result of the particular ruling. I mean, I did cite Brown v the Board of Education as judicial activism. I’m glad segregation ended. It’s the manner of its ending that I disagree with.
That last sentence about “remedies” seems to mean that the current system contains ways to deal with bad decisions. Perhaps I’m wrong because that is so obvious. What should also be obvious is that since I am suggesting reform of the current system I’m not satisfied with those options.
The key word is “changes”. When confronted by new situations the courts obviously shouldn’t be limited by the past. It’s just that simple. In principle, that is. In practice the question is open to interpretation. Hence the mention of “plenty of gray area”.
If you want to pull off pedantic it helps to have something germaine to say. I was talking generalities and your response concerned only specifics. Of course there is plenty of gray area.
Don’t apolgize for criticizing my plan. That’s why I posted it.
By “practice” I mean how things work. In practice, before Brown v the Board of Education segregation was allowed. In practice, before Roe v Wade banning abortion was allowed. In practice, before Goodridge v. Department of Public Health gays couldn’t marry. In practice, before Lawrence and Garner v. Texas anti-sodomy laws were allowed. Hence for my purposes it matters not at all if these cases overturn precedent. They still would violate my proposed law.
Right, we are back to the gray area. Notice I said that “This plan would still leave plenty of gray area for tinkering with past rulings…”
I would say that constitutes a new situation making the old precedents inapplicable. If there is no applicable precedent, fine. Rule away. Again, there is plenty of gray area for tinkering to occur.
I would be happy to discuss it with you, Poly. Here or elsewhere. But I think you are writting off Huerta88 and laigle much too soon. They seem to me to be discussing things in a perfectly reasonable manner.
As I’ve said, there is a lot of gray area. My hope is only to limit, not stop the politics. I would hope the Judicial Conference and/or the Senate would recognize that banning something like abortion or segregation represented historic change. Nor could just anyone shun a judge, the Judicial Conference is made up of senior judges. I’m unaware that it has ever been used for political purposes but, of course, it could happen.
You are right though that I was only considering it from one viewpoint. Thanks for pointing that out. I’ll think on it.
Actually, it wasn’t pendantic, it was my very point. Judicial decisions are always concerned with the specific. One cannot make rules about judicial decisions that address only generalities. Such rules are non sequiturs.
Sua