« No More Extraordinary Rendition | Main | Going for Dolo »

January 23, 2009

Comments

What's especially telling is his last paragraph - referring to a "polarized" Fourth Circuit. In other words, the problem is that Obama might actually put some liberal judges on the bench. The fact that liberal judges might be just as capable of putting aside their ideology as he claims to be doesn't seem to occur to Wilkinson.

Why does anyone think he'll be ABLE to put more liberal candidates on the 4th Circuit bench?

Who thinks he even wants to?

He'll be constrained in his nominations by the 'necessity' of not causing any--or at least the barest minimum--unruliness or dissent from the Right (fuck the Left, but you knew that already)...

A close relative of mine worked for the 4th circuit for many years in the 80s and 90s. Said person told me s/he had to be very careful not to reveal their lifelong Democrat registration. I can only imagine the atmosphere now; half the judges are probably fantasizing about riding into battle against the Northern interlopers.

(The atmospherics are telling: there are giant statues of Confederate generals, all facing north, in many of Richmond's major intersections, while the 4th Circuit's courthouse is as magnificent a pile of antebellum marble as you'll ever hope to see.)

woody - because it would be virtually impossible to put LESS liberal candidates than the ones currently on the bench in the 4th Circuit.

I take it, Publius, that you now favor up-or-down votes on each and every one of the president's judicial nominations.

Oh good, another NYT article where the proper role of judging is essentially "political outcomes the NYT likes" as opposed to any idea that the proper role of the judicial branch might not be essentially interchangeable with the legislature.

"It is confident enough to strike down acts of Congress when it finds them stretching the limits of the federal government's power and hardheaded enough to rule against nearly every death-row defendant who comes before it."

Oh noes! Not striking down acts of Congress that violate the limits of federal power! And death row appeals are virtually mandatory nowadays. Heck, some crimminals have difficulty telling their attorneys not to appeal.

"But the relationship is symbiotic: the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land."

And this is in distinction with say the Ninth Circuit perhaps? Isn't this how the system works? And isn't it more proper for a lower court which seems like it is working with the Supreme Court than again say the Ninth Circuit which seems to be passive-aggressively fighting with the Supreme Court sometimes?

"The full Fourth Circuit rarely sits to review the decision of one of its three-judge panels. When it does, though, critics say that it uses this en banc procedure to overturn liberal decisions that slip through, and there are plenty of supporting examples. But with Ocheltree, the judges were sitting in reconsideration of a quite conservative decision, one that would greatly limit the ability of employees in the region to make successful claims of sexual harassment. They were also addressing the sensitive issue of the sanctity of jury decisions."

Argh. Their example doesn't even help their case, and vague hints like that are a lot less interesting than straight up panel manipulation done by liberal jurists, like in the University of Michigan discrimination case. In that case, the Chief Judge (Carter appointee) dispensed with the random selection of judges to the panel. She also sat on the university request for an en banc hearing (avoiding the mandatory reporting procedures) for nearly 5 months until just after 2 Republican appointed members of the court were forced by age to retire, altering the makeup up the en banc court. The NYT has never been particularly interested in that story, yet it offers a much more clear case of judicial manipulation than the unspecified charges in the article above.

"I take it, Publius, that you now favor up-or-down votes on each and every one of the president's judicial nominations."

I'm not Publius, but I favor the right of Congress to take what action it sees fit to, within its rules, on presidential nominees. Is that an unusual stance?

I think you're probably right in your characterization of the Fourth Circuit, but I would nominate the Eleventh for at least an honorable mention, if not a Second Place Award.

The real problem, from a victims (anyone caught in the legal system that isn't being paid to be there) perspective, is not filling the judicial vacancies with ideologues, but the lack of any real enforceable Canons of Judicial Ethics. This problem starts at the top with the, Dishonorable Antonin Scalia; who refuses to recuse himself even in the most public view of an appearance of a "conflict of interest" which is certainly addressed in the canons of judicial ethics. There is conspicuously absent any functioning impartial oversight or review of the judicial branch from the top down.

Georgia (is not alone in its methodology) has a Judicial Qualifications Board, controlled by either lawyers or judges, a classic example of the fox watching the chicken house. It is totally opaque in its procedures or lack thereof and threatens anyone with severe penalties for even discussing a complaint outside their office. I personally think that is unconstitutional thanks to the first amendment, but they threaten the uniformed citizenry none the less.

Despite an open records act, as in most states, trying to copy court house records with a digital camera exposes a citizen to arrest. They prefer to make them unobtainable by pricing the people out of the market with exorbitant copying fees.

Obama has talked a lot about transparency in government but he is going to face entrenched corruption all the way down to the local level. Especially in the judicial branch of government which is the probably the most important and powerful branch in our form of government and transparency is the key.

Why do courts cling to the anacharistic form of recording court proceedings with a court reporter? Why not record the proceeding digitally in video? The court reporter system allows the judge to exercise control over the output in the form of a transcript by a court reporter who normally serves at the pleasure of the judge. If a Judge is screaming or shouting it is not reflected in the transcript but couldn't be hidden with a video transcript. I digress, but our Judicial Branch of government is sadly broken and sadly lacking any real checks and balances. The ideologues making up the SCOTUS were able to rob the country of a democratically elected President choosing to appoint one by suspending all the legal precedent that would have prohibited such an action (just supposedly for that one occasion) and that has lead us to where we are today.

Respectfully submitted and recognizing that lawyers hate to hear criticism of the legal system, knowdoubt

And what does it mean 'reasserting states rights over big government'?

Gary-

I believe the Constitution requires an up-or-down vote on each and every judicial nominee, and I will continue to hold that view even though my party is no longer in power.

Its going to be hard to get used to all this good news.

Sebastian, the only question is whether the appellate court is attempting to correctly interpret that law, rather than imposing its own political slant. Conservatives rail about the 9th Circuit, yet are curiously silent about the 4th.

knowdoubt, lawyers work in the judicial system and probably have a much better understanding than you do of how judges abuse power and how arbitrary the courts can be.

All circuit courts must bow dow and worship at the feet of the Seventh Circuit, which is far superior to say, oh I don't know, the Sixth Circuit. :)

fed - If the question is "should the filibuster be abolished for judges," I would say no. that's the right of the minority.

generally speaking, i would prefer to abolish the filibuster (at some future designated date - e.g, 2012), but i'd still like to keep it for judges.

Judges are for life and have enormous power -- the filibuster keeps extremists from getting appointed, and also strengthens legitimacy of judiciary

but the idea that a filibuster on judges is CONSTITUTIONALLY prohibited is, respectfully, a completely absurd and foundation-less argument

Well, respectfully, I think it is a bit more complicated than that.

But at least you're being consistent.

Argh. Their example doesn't even help their case, and vague hints like that are a lot less interesting than straight up panel manipulation done by liberal jurists, like in the University of Michigan discrimination case. In that case, the Chief Judge (Carter appointee) dispensed with the random selection of judges to the panel. She also sat on the university request for an en banc hearing (avoiding the mandatory reporting procedures) for nearly 5 months until just after 2 Republican appointed members of the court were forced by age to retire, altering the makeup up the en banc court. The NYT has never been particularly interested in that story, yet it offers a much more clear case of judicial manipulation than the unspecified charges in the article above.

Sebastian, I suspect that former Chief Judge Boyce Martin,
http://en.wikipedia.org/wiki/Boyce_F._Martin , woud be surprised to learn that he is a she.

Why you care about 4th circuit? The 1th circuit (U.S. Supreme Court) and 2th and 3th circuits is more important anyway. Democrat party should let republican party have this for unity so they will support Obama on more important stuff.

Feddie the constitution say advise and consent of senate but not specifies what internal procedure senate must use. Senate is free to decide itself's procedure and senates' rule's allow filibusters.

"I believe the Constitution requires an up-or-down vote on each and every judicial nominee, and I will continue to hold that view even though my party is no longer in power."

Believe what you like, no matter that you can't quote any such thing from the Constitution, and never in history has the Senate ever believe in such a thing. Believe in ghosts, astrology, and the Easter Bunny, too, as you like. Whatever makes you happy.

Gary-

There are several scholarly articles on this issue (on both sides), and I don't feel the need to cite them to you, when you can, no doubt, find many of them on your own via a simple google search.

"and by and with the advice and consent of the Senate"

Feddie, if the President refuses to take the Senate's advice, why should they bother to consent?

Ricks' Nut's -

The folks in Boston may still consider themselves the Hub of the Universe, but that doesn't make the first circuit the Supreme Court.

Feddie wrote -

"I don't feel the need to cite them to you"

That's nice. The Senate and the Supreme Court have the only opinions that matter. Yours is out of step.

" and I don't feel the need to cite them to you"

I don't feel the need to hunt for whatever you have in mind, then.

But there has never, ever, ever, ever, ever, been any Constitutional obligation to hold a vote on a Presidential nomination. If you can cite which line in the Constitution compels it, be our guest. If you can point to evidence of the Senate ever declaring such a rule, go for it.

Since there is no such line, and the Senate has never acted in accordance with this imaginary notion, it's not much of a question.

The idea that there's some obligation to hold a vote was the flimiest of political claims based on nothing more than pure partisanship against a Democratic majority Senate. History is devoid of any such alleged obligation, and that's an inescapable fact. So notes the Senate.

Incidentally, if there were any such rule, wouldn't it be far more logical for the Senate to be required to hold a vote on the president's cabinet nominations? Surely the president is far more entitled to have a preference in choosing the president's own cabinet, and in other executive appointments, than in picking members of the third branch of government?

As a point of history, I wonder where the Republican-invented rule was when Abe Fortas was forced to withdraw his nomination as Chief Justice in the face of a Republican filibuster.

Actual history from the CRS.

Over time, the Senate has developed a series of procedures to deal with the concerns of its Members on nominations. First is the custom of senatorial courtesy,
whereby Senators from the same party as the President might influence a nomination or kill it by objecting to it. This tradition has not always been absolute, but it has allowed Senators to play a fairly large role, particularly in the selection of nominees within a Senator’s home state, such as for district court judgeships.
For judicial nominations, the Judiciary Committee has developed a tradition of “blue slips,” a document used to get a home-state Senator’s opinion on a judicial nomination. The chair of the committee determines how much weight to give a Senator’s objection to a judicial nominee.
Other procedures that Senators have used to express their position on a nomination include holds, an informal procedure that can allow a single Senator to block action on a nomination (or legislation), and filibusters, extended debate that can block an up-or-down vote on a nomination (or legislation). Both procedures have been used to delay or block action on nominations.
Maybe in some alternative world there's a different history, but this is our history. If your view is "history should have been different!," well, good luck finding a way to get to some alternative universe.

Mythago: And on what would you be basing your assumptions about my level of understanding of the law or legal experience? Something I said that you didn't agree with, possibly? I know, no participant of this blog would engage in a personal attack or what's otherwise known as "argumentum ad hominum." I can assure you I wouldn't make a statement critical of the most powerful, prestigious and privileged membership of our society without knowing and being able to document of what I speak.

One small example of my legal experience was suing the county in which I live concerning their implementation of zoning laws. I consulted every attorney with expertise in the area of zoning and local government and was told without exception (like you) that I didn't understand not only the constitution and "due process," but zoning and the law in general.

I did my own research, most of which I had done before consulting the first attorney, and I filed the only petition of certiorari ever filed in this county, at least in living memory, and ultimately prevailed against the county based on "due process' as guaranteed in the U.S. Constitution. The county subsequently, completely rewrote the zoning laws with the goal of making sure a citizen could never again do what I did (which is bring a suit without a lawyer against the local government and win). If I remember right Abraham Lincoln schooled himself in the law and did rather well and I would suspect would hold your idea that lawyers are the only ones worth listening to when it comes to the law in some disdain. John Woo, a distinguished attorney if there ever was one, (holding my nose ) is now educating more future fascists at the prestigious USC, Berkley, possibly you prefer relying on his hallowed opinions about the law or others of his ilk. That these people exist and indeed, thrive in the profession, should tell you more than any criticisms I or anyone else could make about the state of the profession. You don't have to be a Rhodes Scholar to read and understand the Constitution, or case law and precedent to know that the opinions he issued were purely corrupt and about greed, getting ahead and kow towing to power. There hasn't been such an attack on the constitution in memory and it goes unpunished, these people are a bigger threat to our democracy, constitution, and society than Osama bin Laden and his terrorists will ever, ever be in their wildest dreams.

I've met more lawyers than I could count, who really didn't have a clue, but I wouldn't want to dispel you of any ridiculous notions you are apparently harboring about the field of jurisprudence. For most of them it's just a job, and not one they particularly enjoy, excepting the amenities. I could share with you ways judges abuse power with impunity that most lawyers have never even imagined were possible much less heard of. How, pray tell, would you know of my educational or legal background? One secret about lawyers is that after being indoctrinated in law schools most lawyers have totally lost sight or even recollection of the fundamental principles that serve as the very footing their profession rests on.

I can assure you that winning or prevailing in any court (State or Federal) often, unfortunately, has little or nothing to do with being right in the law or otherwise. Obviously, what you lack is experience and the power of discernment which you can't learn in school. I didn't offer the example of "winning" as proof that I know what I'm talking about, simply that there is some experience now whether it meets your standards for an opinion is something else entirely, but it would be nice if people would try to be specific about their differences of opinion rather than engage in a general personal attack apparantly based on nothing more than your complete lack of knowledge of my professional or educational background or experience. If you have a bone to pick lay it out there, arguments aren't won or lost, in civilized society or educated society, based on perceptions or misperceptions of a person's professional status, educational, or societal achievements. Your comment smacks of rankism and ignorance, which I realize has gained a status of some distinction over the past eight or so years, but I have developed, over time, so little tolerance for it. Knowdoubt

"I know, no participant of this blog would engage in a personal attack or what's otherwise known as 'argumentum ad hominum.'"

"your idea that lawyers are the only ones worth listening to when it comes to the law"

"I wouldn't want to dispel you of any ridiculous notions you are apparently harboring about the field of jurisprudence."

"possibly you prefer relying on his hallowed opinions about the law or others of his ilk."

"Obviously, what you lack is experience and the power of discernment which you can't learn in school."

"but it would be nice if people would try to be specific about their differences of opinion rather than engage in a general personal attack"

Heal thyself.

"Your comment smacks of rankism and ignorance"

[roll eyes]

All this hysteria in response to this sole comment: "knowdoubt, lawyers work in the judicial system and probably have a much better understanding than you do of how judges abuse power and how arbitrary the courts can be."

You'd get a lot further if you knocked off your endless defensive personal attacks, misreadings, and claims that people said that which they did not. Breath into a paper bag.

P.S. P.S. The citizens of this country have a right to expect judges to meet some minumum ethical standards because judges do enjoy a most powerful, privileged and prestigious status in our society.

No man should be above the law, that idea became nothing but myth a long time ago. Dick Cheny thumbed his nose at the law (unchallenged) after shooting someone in the face and declining to talk with law enforcement until the next day at his convenience after a good nights sleep and sobering up. He certainly setting a historical timestamp on the myth that no man is above the law. I would predict that the criminal scum of the past administration will remain uncharged and unpunished although they have violated the most sacred laws known to man and God. This society needs accountability for more than just the little people, underprivileged, and ethnic/racial minorities. I would start with the most powerful meeting some minimum standards og ethical and moral behavior.

argumentum ad hominum

ad hominem

If you prefer, ad homonym. Or you could always go for the more gritty ad hominy.

the more gritty ad hominy.

corny...

I like grits too. How do you cook your grits? Do you like them regular, creamy or al dente?

Vincent Gambini

I didn't realize it on first viewing, but Mr. Tipton (of the grits) was played by Maury Chakin, who later played Nero Wolfe.

Nero Wolfe: On torture: “…They say it works sometimes, but even if it does, how could you depend on anything you got that way? Not to mention that had you done it a few times any decent garbage can would be ashamed to have you found in it…”

Wolfe also noted: "That is of course the advantage of being a pessimist; a pessimist gets nothing but pleasant surprises, an optimist nothing but unpleasant…”.

Nero Wolfe on wealth: "Nothing is more admirable than the fortitude with which millionaires tolerate the disadvantages of their wealth."

I'm also fond of: "Subtlety chases the obvious in a never-ending spiral and never quite catches it."

If I had a say the Constitution would be amended to require a 2/3 majority +1 in the Senate to confirm a judicial nominee for life. Any nominee failing that and only receiving between 1/2 and 2/3 would be only temporary (unless getting the necessary majority at a later time).
Btw, I do not like the concept of "for life" positions. I prefer either term limits and/or mandatory retirement at a certain age (plus a ban on post-retirement work other than academic or charity).

Why you care about 4th circuit?

You mean, as long as there are other circuits that aren't too bad, we shouldn't care if an entire appellate district is biased and making rulings not in accordance with the law?

knowdoubt - pretty much what Gary Farber said. Since you appear perfectly capable of fantasizing what I might say and why I might say it, I don't think there's anything I could possibly add.

Jeez Louise,

I stand by every word, except the misspelled ones, read the disclaimer, previously posted.

"lawyers work in the judicial system and probably have a much better understanding than you do of how judges abuse power and how arbitrary the courts can be."

Well, I would suggest they don't. One, well understood concept about a "conflict of interest" is financial involvement in an issue. Lawyers would hardly be considered impartial or without conflicts of interest when it comes to admitting to the short comings or needs for improvement in our judicial system based on just that alone. As "officers of the court" they must be constrained in their criticisms of the court or they could find themselves on the street looking for another career sans the license to practice law.

Corny? Sure legal terms are corny, even if spelled correctly in Latin.

I take our judicial system very seriously and I make no apologies for it, not now or ever. I've lived in Egypt and Pakistan and developed an enormous appreciation for what we have here. Having experienced living where people are afraid, for very good reason, to express their political or any other possibly unpopular view I am very sensitive and appreciative of what we have had he and how a crucial a working judicial branch of government is. I've seen the fraud and corruption spread in our system becoming endemic under the Bush administration.

I'll consider breathing in the paper bag when you get your head out of it, Mr. Farber. If you've got a comment about a concept or idea other than the endless posturing and spelling critiques suggesting what? I'm smarter than you because I can copy and paste with little comments like "roll eyes" or "heal thyself". One of the greatest petitions I ever read in law was the one that gave you and I legal counsel when being tried for a crime, it was written by an illiterate guy in prison. Of course someone had to see beyond the spelling and get the concept. Style of the case would be Gideon v.Wainwright, sounds corny I know but there it is. You should check out the guys petition as originally written you might get a little better perspective on what's important and what isn't. If spelling is your big deal, then have at with your own spell checker. I don't presently own a word processor and I'm not really concerned about it. Get over it.

"If spelling is your big deal, then have at with your own spell checker."

This could conceivably be relevant if I'd written a single word about spelling.

Anyway, don't mind me: carry on in your preferred fashion, if you think this sort of thing works for you.

but the idea that a filibuster on judges is CONSTITUTIONALLY prohibited is, respectfully, a completely absurd and foundation-less argument.

Correct. And I suspect Andy McCarthy and the other hacks who made this farcical argument are about to re-discover this as well...

Corny? Sure legal terms are corny, even if spelled correctly in Latin.

corn>>hominy

Damn Yankee...

You're right, it's what works for you that reeealy matters, I forget myself. I should no better than to listen to my own feelings. I do so much better when I let other people tell me when to be insulted or not. I don't know what comes over me....

In the spirit of contriteness, I'll just dedicated my moral outrage at pompous buffoons who think that criticism of the judicial branch of government should be left to lawyers who know, oh, so much more than the little people they are caring for..., to all the innocent men and women who have been put to death, spent the larger part of their lives incarcerated for crimes they didn't commit, and the children languishing in our prison industrial complex waiting for the lawyers who know, oh, so much more than me ..., to fix the broken system. A note of gratitude to The Bitch for the bringing Kadr, the child soldier, we have held and tortured for nearly 7 yrs back to our attention and her link to Amnesty International's Report about the 2500 child offenders serving life without parole in the U.S. Inspirationally yours in the true Christian Spirit of an "Eye for an Eye...," Knowdoubt

A big harrah for the Sixth Circuit. I hope this attorney got his money up front. Some of you more knowledgeable legal beagles might enlighten the rest of us about how the fact that there is "one" dissenting judge increases the likelihood of a case being heard by SCOTUS?

Some people are just upset walking around, waiting to happen. It's best not to get too bent out of shape when they get what they're seeking.

Pretty much, Slartibartfast. It's like the old joke with the punchline of the traveling salesman shouting "I didn't want to use your damn phone anyway!"

The comments to this entry are closed.

Blog powered by Typepad