What's With This Call for A Fight?

by Edward

In reading the ring-wing blogs and watching the Sunday pundit shows, a subtheme to the Miers debate seemed to be that whether or not Harriet would indeed vote to overturn Roe was not their only worry or source of disappointment. The other reason Pat Buchannan and like-minded Conservatives are miffed is they want a very public fight on the issue.

I've been trying to gain an understanding of the Conservative view here. From my readings, I truly believe many of them see Roe as a symptom of a judicial disease, and not the disease itself (but in that way, still a symbol), and that a legitimate philosophical difference of opinion about the importance of originalism can be credited to many, even some who strike me as radical.

Still, I think for many of them who've been working so hard over the years for this opportunity, previously missed chances have led to a pathology of sorts. Indeed, in addition to often having to hold their nose in response to other decisions made by those seen as most likely to give them that opportunity, some Conservatives have become monomaniacal about this particular nomination. All their anger and all their set-backs over the years were dealt with via a personal pledge to make their opponents pay, and how, once they got this particular fight on their terms.

Bush took that away from them.

Buchanan's the best example of this. Even after Tim Russert read a laundry list as long as his arm about why it's safe to assume Meirs would vote the way he'd want her to on abortion cases, Buchanan insisted that wasn't good enough. Yes, he was biten in the a** hard by Souter, but what he keeps coming back to again and again is the fact that he wanted this very public fight.

Now maybe this fight would be good for the nation. Maybe Pat feels that via this debate more Americans would see the wisdom of the Conservative view about SCOTUS and originalism and join the ranks. But being the sceptic that I am (not to mention gauging the venom being spewed by the right [which, in all fairness, might solely be a response to what they see as a betrayal]), I can't help but wonder if this fight didn't symbolize a little something more than an academic analysis of judicial philosophy. It feels to me (yes, possibly projecting here...and I know those who won't like what I say here will default to that defense anyway), but it feels to me that this fight symbolized an opportunity to rub the Liberal's nose in it big time.

I base that partly on the response I've received to reaching out to some of the most angry Conservatives. They've snarked my face off, telling me not to interpret their disappointment with Bush as any indication that we might have more common ground if we only looked for it. In this context, I took that to mean "You Liberals are wrong, and we're only p*ssed that we've lost our chance to prove it." In the end it hardly matters though, the Dems are popping popcorn and reclining to watch the GOP disintegrate, so they're essentially no better with regards to pettiness.

Maybe Pat is right in one sense, though. Maybe we should have a good old-fashioned knock-down brawl over this once and for all, the sort where both sides emerge so exhausted and so disgusted with how dirty the fight was, they find common ground on the flipside and move on. It might just help point a way out of this stalemate.

Maybe Bush took that away from us all.

Comments

[Sebastian Holsclaw]

Lizardbreath asserts that the judge's opinion on cruel and unusual punishment is NOT based on the history of the phrase, the societal understanding of the phrase, or the precedent on the phrase.

What precisely is left other than personal moral judgment?

I suppose it could be the moral judgment of the pope, or something like that, but I can't imagine Lizardbreath making that argument.

[Sebastian Holsclaw]

"You can disagree with that judgment (or with the meaning of "society"), but calling it mere whim isn't particularly fair."

I've already argued with Lizardbreath on the grounds that the judgment was ridiculous (which it clearly was, the dramatic societal change in view on the death penalty in the past 15 years is ficticious). Lizardbreath said that we can go beyond the really bad evidence to an allegedly valid precedent allowing for personal moral judgment of the judge.

We are talking about Coker because Lizardbreath didn't want to talk about Stanford v. Kentucky. We are talking about Coker because Lizardbreath is saying that all my arguments about the fact that there was no dramatic societal change between 1989 and 2005 necessitating a new rule on 17-year old murderers was irrelevant because judges aren't supposed to rule on the current state of societal understanding but rather on their own moral understanding.

[LizardBreath]

Not that those arguments are irrelevant, but that they are not alone dispositive. The cases I've pointed out may be disagreeable to you, but they exist, and they clearly contemplate that while judges should give great deference to the decisions of legislatures with respect to punishments, and to the measurable standards of society, that a factor in their analysis may also be their informed opinion as to what should be acceptable in today's society.

Again, I don't hope to convince you that Roper was rightly decided. I am trying to make the point that there is case law preceding Roper, (all the way back to the 50's, when Trop was decided) that allows judges to find that a punishment is unacceptable under modern standards of decency without being bound by or limited to statistical analysis of nationwide law-enforcement practices to determine those standards. (Such statistical evidence isn't irrelevant, of course, it's highly persuasive -- it just isn't solely dispositive.)

I've asked this question a couple of times, and I'm genuinely interested in your answer. As a matter of history, do you think the framers of the Constitution intended Eighth Amendment analysis to be limited to statistical analysis of nationwide law-enforcement practices, or do you think they contemplated the use of a judge's informed moral judgment? While I'm not a historian, and I don't know of any solid contemporary evidence in this regard, I find the first incredible -- it's simply not how judges worked back then. If I'm right, when and by what authority did numerical evidence of societal consesus on the 'cruelty' of a punishment become a requirement of Eighth Amendment jurisprudence?

[Sebastian Holsclaw]

I do not believe that judges were permitted to base their reading of the 8th amendment on personal preferences.

In the 18th century they wouldn't have used statistical methods, but they still would have used whatever their best understanding of the societal standards was.

It simply was not the understanding of how judges operated at the time that they were to interpret documents based on personal moral judgments. It shouldn't be how they operate now either, but that is precisely what we are fighting about.

To be clear, if they are not bound by societal understanding, precendent, or historical understanding, do you believe them to be bound by something other than their personal view? If so, what?

[LizardBreath]

I could swear I'd posted a response to this and seen it post, but it seems to be gone. (Bad typepad! Bad!)

In any case, what I said, roughly, is that a judge can use their moral judgment to answer one of two questions -- either (a) what punishments do I, personally, consider unacceptable or (b) what punishments do I think the society I live in should consider unacceptable.

Deciding cases on the basis of the answers to the first question is what you object to as judicial activism. Deciding cases on the basis of the answer to the second question is what eighteenth century judges had to do, and what the caselaw cited suggests that twenty-first century judges still may do, even when that answer is not compelled by a numerical analysis of nationwide law-enforcement practices.

We should probably drop this and agree to disagree (well, after you've made any response that you'd like). While I don't hope to have convinced you that Roper was rightly decided, I do hope that you can see that there are legal and historical arguments to be made for it; it may be wrong, but it isn't the nakedly lawless power grab that you characterized it as initially.

[CharleyCarp]

And now, LB, you've lost me.

There's nothing wrong with each of us as citizens using our own moral judgments to resolve question (a) for ourselves. The legislature gets to do it when writing statutes. And jurors can do so and nullify, but don't tell them. The executive has the power to deal with question (a) at several stages, from charging to pardon. But I don't think the 8th Amendment is a license for judicial nullification, and I don't think anyone currently on the SC thinks it is either.

Question (a) isn't the dispositive question for a judge, and neither is (b). There has to be, and is, more to the 8th Amendment than naked personal preference, which is why courts look at the evidence for what society does think. Not what it should think.

[LizardBreath]

I may have lost you though unclear drafting. I meant to reject question (a) -- that is, to identify it as a possible but inappropriate question for a judge to ask.

Question (b) is, put differently: Given what I know about my society's standards of human decency, does this punishment comport with those standards? A judge has to look at society's standards of decency, rather then their own personal standard of decency, but can use their own judgment as to whether a punishment comports with society's standards.

To bring it back to Roper: If I recall correctly (I don't have the case open in front of me) Kennedy references research showing that adolescents show cognitive differences from adults, and are less responsible for and in control of their decisions. A justification for Roper under my question (b) would be the following:

1. From what I (the judge deciding) know about the society I live in, we generally regard it as indecent and unacceptable to execute criminals who are not fully cognitively equipped to make decisions responsibly. (While I personally find all capital punishment unacceptable, I recognize that society disagrees with me about that. I'm relying on my knowledge of society's moral standards, not my own.)

2. From the evidence before me, I hold that seventeen-year-olds are not fully cognitively equipped to make decisions responsibly.

3. Some states still have laws allowing the execution of criminals who were seventeen at the time of the crime. Based on 1 and 2 above, those states, whether through ignorance of the facts of 2 or for some other reason, are out of step with the evolving standard of decency in our society.

4. Therefore, although not all states do consider such executions unacceptable, by the broader standards of society all states should consider them unacceptable. Execution of criminals who were 17 or younger when they committed their crimes is therefore unconstiutional under the Eighth Amendment.

Is that clearer, or more acceptable? (And by clearer, I mean that it's what I meant earlier, not necessarily that it's what I successfully said.) The judge's moral judgment as to society's standards, rather than as to the judge's own personal preference, can produce a result that is not compelled by a survey of current practices.

[LizardBreath]

I may have lost you though unclear drafting. I meant to reject question (a) -- that is, to identify it as a possible but inappropriate question for a judge to ask.

Question (b) is, put differently: Given what I know about my society's standards of human decency, does this punishment comport with those standards? A judge has to look at society's standards of decency, rather then their own personal standard of decency, but can use their own judgment as to whether a punishment comports with society's standards.

To bring it back to Roper: If I recall correctly (I don't have the case open in front of me) Kennedy references research showing that adolescents show cognitive differences from adults, and are less responsible for and in control of their decisions. A justification for Roper under my question (b) would be the following:

1. From what I (the judge deciding) know about the society I live in, we generally regard it as indecent and unacceptable to execute criminals who are not fully cognitively equipped to make decisions responsibly. (While I personally find all capital punishment unacceptable, I recognize that society disagrees with me about that. I'm relying on my knowledge of society's moral standards, not my own.)

2. From the evidence before me, I hold that seventeen-year-olds are not fully cognitively equipped to make decisions responsibly.

3. Some states still have laws allowing the execution of criminals who were seventeen at the time of the crime. Based on 1 and 2 above, those states, whether through ignorance of the facts of 2 or for some other reason, are out of step with the evolving standard of decency in our society.

4. Therefore, although not all states do consider such executions unacceptable, by the broader standards of society all states should consider them unacceptable. Execution of criminals who were 17 or younger when they committed their crimes is therefore unconstiutional under the Eighth Amendment.

Is that clearer, or more acceptable? (And by clearer, I mean that it's what I meant earlier, not necessarily that it's what I successfully said.) The judge's moral judgment as to society's standards, rather than as to the judge's own personal preference, can produce a result that is not compelled by a survey of current practices.

[LizardBreath]

Damn Typepad, I say!

[CharleyCarp]

Count me back on the reservation, LB. Now that you have clarified, I'd be interested to know where Sebastian is.