Once again we have a bit of humor in the presidential race , thanks to Rick Perry. At a meeting with an Iowa newspaper's editorial board he was criticizing President Obama's Supreme Court appointees, yet couldn't remember correctly the name of one (Sotomayor) and misstated the number of Justices on the Court. Surely a candidate for president should know these things. The filling of a Supreme Court vacancy is a vital presidential task and one that may arise during this next presidential term, considering Justice Ginzberg's health. While it is important that a candidate be accurate in these details , however, this is not what got my attention in his comments.
As we laugh at these gaffs we often miss the bigger issue. It is the wrongful thinking that is behind the statements these candidates make. Because Rick Perry is not alone in his sentiments, just the most visible at times. He used two adjectives to describe the Justices, used both negatively, when only one is true and that one should be viewed as a positive not negative.
He said that the Justices were "unelected" and "unaccountable". The first is true but for reasons I will explain shortly, this I believe is a positive, not negative characteristic of both the Supreme Court and the rest of the federal court system. The second assertion is definitely false, but you have to think harder than a "fifth grader" to understand the reasons why.
First there is the appointment and confirmation process, where the President and the Senate, representing the other two branches of our government (both elected by the people) , choose the members of the Court. Then there is the ability of a latter Court to overturn earlier decisions after review (see Plessy v Ferguson (1896) overturned by the Brown decision (1954) as the most notable example).
There is also the ability for Congress to pass Constitutional amendments to correct deficiencies in the law and render moot a Court's decision. Prime example of this was the 13th Amendment (1865) , outlawing slavery , in response to the Dred Scott decision . There was also the 16th Amendment (1913) ,passed to overcome Court objections to a federal income tax.
And there is the matter of impeachment. Just as for the President, any member of the federal judiciary can be impeached by the House of Representatives and face trial in the Senate, with conviction resulting in removal from office. Throughout our history 19 federal court justices have been impeached (including one Supreme Court justice) and several have been removed from office after trial in the Senate. So you see, the justices and their decisions are accountable.
The other contention, that they are unelected, is true. But I would contend that this is a positive characteristic, not negative. I have always felt that the election of judges, the common practice for state courts, was not good. Members of the legislative and executive branches should be responsive to the people. The members of the judicial branch, the judges, should be responsive to the law, protecting the people's rights. All rights, not just the majority.
When cases reach the federal courts the stakes are higher. The rulings will often affect many people from multiple states (the health care reform cases are one example) and the questions reach to the core of fundamental rights and freedoms. Also, the issues may invoke alleged overreach by the executive or legislative branches of the federal government. The courts must have the independence to rule against either branch if the case warrants. A lifetime appointment guarantees this.
Our rights and freedoms guaranteed by the Constitution involve the right to be unpopular. To voice unpopular views, have unpopular beliefs, to gather with unpopular people to advocate unpopular causes. Popular opinions do not need protection. Majority views do not need special protection. They are protected by their own popularity. But minority opinions, like minority populations, are vulnerable to the "tyranny of the majority", and need safeguarding by a court system where judges are free to make the "unpopular" decision to defend them.
Our history as a country is one of evolving protection for minority populations and views, expanding our understanding of what it means to be free, and challenging ourselves to open our minds to the truth that if anyone's freedom is curtailed we all suffer. We cannot go backward. We must stay vigilant. Rick Perry is not alone in his skewed views on the Court…his fellow GOP candidates all share basically the same views. We must hold them "accountable" for these and render them all "unelected"
Showing posts with label supreme court. Show all posts
Showing posts with label supreme court. Show all posts
Sunday, December 11, 2011
Sunday, July 4, 2010
SCOTUS
SCOTUS is the acronym for Supreme Court of the United States, also known simply as "the Court". Periodically there are vacancies in its membership and the President is called on to nominate, and the Senate to consent to, a new justice. We are that point in our history again and I thought it was a good time to briefly comment on my views on the Court and why careful consideration is important to American freedom.
Many will rail against "judicial activism" and urge support for a "strict constructionist"...also railing against "unelected" deciders of law and those who argue for the view of the Constitution as a "living document". To them I say, activism is vital to our national health and ,yes, the Constitution is a living document that we need to continually re-evaluated through the years. The Founders were not psychics - they could not spell everything out because they did not know what would come up. So they built in flexibility in the document so that it ,and we, could adapt to changing times.
The three branches of government- legislative, executive, and judicial -have separate and distinct functions and areas of power, and also have ways to check the power of each other. This is to prevent over-reach by any and to keep government balanced. As far as the judiciary is concerned their area of power is the interpretation of the law. They are charged with the duty to uphold the Constitution by making sure that all the actions of the other two branches (plus the local and state versions of those branches) are in agreement with the rules of the Constitution , because it is the supreme law of the land.
In order to do this the Court may strike down laws or other governmental action as unconstitutional. It does so in response to cases appealed to it from lower courts. These are brought by ordinary citizens who have not found relief from any other source. We work under the mantra of "majority rules, minority rights". The will of the majority acts through the legislative branch and that is vital to a stable country. But when the rights of a minority are being trampled on it can easily become a "tyranny of the majority" - think of slavery and racial segregation/discrimination that went on for decades even after slavery was outlawed. This is where the Court steps in.
Long standing tradition is important and legal precedence is as well. These are vital to preserve, for the sake of a stable society, and thus conservatism has its place. But liberalism does as well, coming from the same root as liberty, and seeing that only in growing are we truly free. It is akin to matters of faith where some are mired in legalism...those who won't do anything unless they firmly believe God has spelled it out as okay. Versus those who believe that God has set us free to live , giving only simple guidelines, and that if it is not specifically denied as bad we can try it. Sticking to traditions in law makes as much sense as in matters of faith. The faith version of this is the proverbial 7 last words of the church "we've never done it that way before".
I believe that the Court stands as the defender of the powerless against the powerful. But you say, don't citizens have recourse through Congress? Yes, the ballot box and Congressional phones lines/emails are open for all and we can make our views known. But when the majority opinion is destructive of the rights of an individual where are they to go but to the Court?
Just after Pearl Harbor there were thousands of American citizens of Japanese ancestry who were interned in relocation camps because they were deemed, solely on the basis of their race/national origin to be suspect in their loyalty to the US. Not for anything they had done but of who they were. They had no recourse in Congress, popular opinion of the majority was against them, so the only way to seek relief against unfair treatment was to go to the Court.
Unfortunately, this is one of the times when the Court failed. In Korematsu v US (1944) the Court decided that the exclusionary zones on the West Coast, excluding those of Japanese ancestry, were constitutional. The Chief Justice even said that the defendant was not excluded because of his race! It took us almost 40 years to apologize and say that the decision was wrong. Similarly it took over 50 years to determine that "separate but equal" rationale for racial segregation in schools was wrong (Plessy v Ferguson 1896 to Brown v Board of Education 1954). And it took Constitutional amendments (13th,14 th) and the Civil War to fix the situation and finally outlaw slavery after the disastrous Dred Scott decision in 1857. So it is important for the Court to get it right.
Some in our country would like to restrict the jurisdiction of the Court, even some (Texas GOP platform) who would like to do that in cases involving the Bill of Rights! My friends, the Bill of Rights is toothless without the Court. The right of legal counsel when on trial (Gideon v Wainwright 1963) or advice of legal rights when arrested (Miranda v Arizona 1966) were both strengthened by the Court. When popular opinion in reaction to current events (think 9-11) looks for scapegoats among the powerless there is great need for an entity like the Court to stand up in defense.
Some have said that the Court must be impartial. One justice nominee, who is now the Chief Justice, said it was to be an umpire, calling balls and strikes . This envisions a level playing field between the parties to a case. This can hold when there are two individuals involved. But when the case involves the law-making or law-enforcement group (like Congress, President,etc) versus an ordinary citizen, there is no level playing field. So the Court must take steps to re-examine the law and the Constitution and find out if there is to be relief for that individual. Law-makers and Law-Enforcers need no defense - they have the power. It is the individual who needs protection for his/her liberties.
For those who would blanch at a "re-examination" of the Constitution let me give you a parallel situation. For those of you who are people of faith, relying on a scripture for divine guidance. Have you learned all you can from your first reading of it, or do you often have the experience that you see new things/new truths or understand more each time you re-read it? I know I do.
Is it because God changed? No, it is because we have grown and times have changed and we need a fresh understanding of divine will to apply to our new situations. It is much the same with the Constitution. It has not changed, but the times and we have , and there is always a need to further our application of its principles and laws to the times we live in.
The same judicial nominee/now justice said that benefit of the doubt should go to the lawmaker/law enforcer. No, that is not how our system of justice works and he should know better. The benefit of the doubt should always go to the one accused "innocent until/unless proven guilty". An activist Court is a hallmark and defense of individual liberty and we should demand and celebrate that -today of all days.
Happy Fourth of July everybody! :)
Many will rail against "judicial activism" and urge support for a "strict constructionist"...also railing against "unelected" deciders of law and those who argue for the view of the Constitution as a "living document". To them I say, activism is vital to our national health and ,yes, the Constitution is a living document that we need to continually re-evaluated through the years. The Founders were not psychics - they could not spell everything out because they did not know what would come up. So they built in flexibility in the document so that it ,and we, could adapt to changing times.
The three branches of government- legislative, executive, and judicial -have separate and distinct functions and areas of power, and also have ways to check the power of each other. This is to prevent over-reach by any and to keep government balanced. As far as the judiciary is concerned their area of power is the interpretation of the law. They are charged with the duty to uphold the Constitution by making sure that all the actions of the other two branches (plus the local and state versions of those branches) are in agreement with the rules of the Constitution , because it is the supreme law of the land.
In order to do this the Court may strike down laws or other governmental action as unconstitutional. It does so in response to cases appealed to it from lower courts. These are brought by ordinary citizens who have not found relief from any other source. We work under the mantra of "majority rules, minority rights". The will of the majority acts through the legislative branch and that is vital to a stable country. But when the rights of a minority are being trampled on it can easily become a "tyranny of the majority" - think of slavery and racial segregation/discrimination that went on for decades even after slavery was outlawed. This is where the Court steps in.
Long standing tradition is important and legal precedence is as well. These are vital to preserve, for the sake of a stable society, and thus conservatism has its place. But liberalism does as well, coming from the same root as liberty, and seeing that only in growing are we truly free. It is akin to matters of faith where some are mired in legalism...those who won't do anything unless they firmly believe God has spelled it out as okay. Versus those who believe that God has set us free to live , giving only simple guidelines, and that if it is not specifically denied as bad we can try it. Sticking to traditions in law makes as much sense as in matters of faith. The faith version of this is the proverbial 7 last words of the church "we've never done it that way before".
I believe that the Court stands as the defender of the powerless against the powerful. But you say, don't citizens have recourse through Congress? Yes, the ballot box and Congressional phones lines/emails are open for all and we can make our views known. But when the majority opinion is destructive of the rights of an individual where are they to go but to the Court?
Just after Pearl Harbor there were thousands of American citizens of Japanese ancestry who were interned in relocation camps because they were deemed, solely on the basis of their race/national origin to be suspect in their loyalty to the US. Not for anything they had done but of who they were. They had no recourse in Congress, popular opinion of the majority was against them, so the only way to seek relief against unfair treatment was to go to the Court.
Unfortunately, this is one of the times when the Court failed. In Korematsu v US (1944) the Court decided that the exclusionary zones on the West Coast, excluding those of Japanese ancestry, were constitutional. The Chief Justice even said that the defendant was not excluded because of his race! It took us almost 40 years to apologize and say that the decision was wrong. Similarly it took over 50 years to determine that "separate but equal" rationale for racial segregation in schools was wrong (Plessy v Ferguson 1896 to Brown v Board of Education 1954). And it took Constitutional amendments (13th,14 th) and the Civil War to fix the situation and finally outlaw slavery after the disastrous Dred Scott decision in 1857. So it is important for the Court to get it right.
Some in our country would like to restrict the jurisdiction of the Court, even some (Texas GOP platform) who would like to do that in cases involving the Bill of Rights! My friends, the Bill of Rights is toothless without the Court. The right of legal counsel when on trial (Gideon v Wainwright 1963) or advice of legal rights when arrested (Miranda v Arizona 1966) were both strengthened by the Court. When popular opinion in reaction to current events (think 9-11) looks for scapegoats among the powerless there is great need for an entity like the Court to stand up in defense.
Some have said that the Court must be impartial. One justice nominee, who is now the Chief Justice, said it was to be an umpire, calling balls and strikes . This envisions a level playing field between the parties to a case. This can hold when there are two individuals involved. But when the case involves the law-making or law-enforcement group (like Congress, President,etc) versus an ordinary citizen, there is no level playing field. So the Court must take steps to re-examine the law and the Constitution and find out if there is to be relief for that individual. Law-makers and Law-Enforcers need no defense - they have the power. It is the individual who needs protection for his/her liberties.
For those who would blanch at a "re-examination" of the Constitution let me give you a parallel situation. For those of you who are people of faith, relying on a scripture for divine guidance. Have you learned all you can from your first reading of it, or do you often have the experience that you see new things/new truths or understand more each time you re-read it? I know I do.
Is it because God changed? No, it is because we have grown and times have changed and we need a fresh understanding of divine will to apply to our new situations. It is much the same with the Constitution. It has not changed, but the times and we have , and there is always a need to further our application of its principles and laws to the times we live in.
The same judicial nominee/now justice said that benefit of the doubt should go to the lawmaker/law enforcer. No, that is not how our system of justice works and he should know better. The benefit of the doubt should always go to the one accused "innocent until/unless proven guilty". An activist Court is a hallmark and defense of individual liberty and we should demand and celebrate that -today of all days.
Happy Fourth of July everybody! :)
Friday, July 31, 2009
spirit of the law
Have you ever watched a basketball game where the referees forgot their role? Every little infraction of the rules ,no matter how minor, was whistled, the foul line became busy, and the game became a bore. Despite the fans cry of "just let them play", the referees persisted in their enforcement of the rule, and later were surprised that people complained. They said ,"but the rules are the rules and must be enforced.",forgetting that it was a game people came to see, not a whistle-fest.
Now everybody understands what a travesty that is. But a greater travesty occurs when the "law and order" crowd get their way in the fields of the courts and law enforcement. Then it is not just a game that suffers, it is real people and their lives and livelihoods that are damaged.
Remember that a law is only as good as the reason it was made. As Jesus said to the Pharisees, "the Sabbath was made for man, not man for the Sabbath". It was made to provide a rest for mankind, not binders. We must remember why laws were written and judge accordingly. And that a law can't be written to cover everything in specifics , there has to be interpretation and careful application to each case. That is why we have judges, not just legal automatons.
I can think of three instances where insistence on strict,limited law application has harmed our society. One is mandatory sentencing and the "3 strikes" laws. These came from well-meaning individuals but have serious flaws. There are instances of judges excusing criminal activity , but more often I think are cases where the judge is handcuffed. You have to consider first time offenders and repeat criminals differently. And not all felonies are the same, so the 3-strikes laws can handcuff judges as well. Career criminals, shown by lengthy rap sheets, and violent offenders need to be kept in jail to safeguard the public. But there is a whole realm of rehabilitation and restitution, aspects of law that are sorely lacking in our society today. We cannot just "lock 'em up and through away the key". That is madness, financially and otherwise.
Immigration is a bigger issue that needs to be addressed in a separate post, but suffice it to say here that those who cry "but they're breaking the law" about illegal immigration, need to think about their own record and how they themselves would manage if someone caught and prosecuted them on every minor infraction of law -like when they go 5 miles an hour over the posted speed limit?
Finally, in keeping with the continued news over the Supreme Court nominee approval process, what about activism and judicial philosophy on the court? The Constitution is a set of laws, written by good men over 200 years ago in a society that is vastly different from ours. It's principles remain vital, but it must be allowed to live and breath and adapt to continual changes. That is why the Congress is given the "necessary and proper" power. The founders knew that things would change and the government needed the flexibility to adapt. Judges must be mindful of this, as well as remembering their role as guardians of liberty, protecting the rights of the minority against excesses of the majority, against over-reaches by legislative or presidential power. They are a check and balance, not just a rubber stamp for law enforcement. Much more about that whole area later, but this again is an area where the spirit of the law needs to be remembered.
And of course, it all comes back to the golden rule - "do unto others as you would have them do unto you". Or as someone else wrote it, before you judge me , walk a mile in my moccasins.
Now everybody understands what a travesty that is. But a greater travesty occurs when the "law and order" crowd get their way in the fields of the courts and law enforcement. Then it is not just a game that suffers, it is real people and their lives and livelihoods that are damaged.
Remember that a law is only as good as the reason it was made. As Jesus said to the Pharisees, "the Sabbath was made for man, not man for the Sabbath". It was made to provide a rest for mankind, not binders. We must remember why laws were written and judge accordingly. And that a law can't be written to cover everything in specifics , there has to be interpretation and careful application to each case. That is why we have judges, not just legal automatons.
I can think of three instances where insistence on strict,limited law application has harmed our society. One is mandatory sentencing and the "3 strikes" laws. These came from well-meaning individuals but have serious flaws. There are instances of judges excusing criminal activity , but more often I think are cases where the judge is handcuffed. You have to consider first time offenders and repeat criminals differently. And not all felonies are the same, so the 3-strikes laws can handcuff judges as well. Career criminals, shown by lengthy rap sheets, and violent offenders need to be kept in jail to safeguard the public. But there is a whole realm of rehabilitation and restitution, aspects of law that are sorely lacking in our society today. We cannot just "lock 'em up and through away the key". That is madness, financially and otherwise.
Immigration is a bigger issue that needs to be addressed in a separate post, but suffice it to say here that those who cry "but they're breaking the law" about illegal immigration, need to think about their own record and how they themselves would manage if someone caught and prosecuted them on every minor infraction of law -like when they go 5 miles an hour over the posted speed limit?
Finally, in keeping with the continued news over the Supreme Court nominee approval process, what about activism and judicial philosophy on the court? The Constitution is a set of laws, written by good men over 200 years ago in a society that is vastly different from ours. It's principles remain vital, but it must be allowed to live and breath and adapt to continual changes. That is why the Congress is given the "necessary and proper" power. The founders knew that things would change and the government needed the flexibility to adapt. Judges must be mindful of this, as well as remembering their role as guardians of liberty, protecting the rights of the minority against excesses of the majority, against over-reaches by legislative or presidential power. They are a check and balance, not just a rubber stamp for law enforcement. Much more about that whole area later, but this again is an area where the spirit of the law needs to be remembered.
And of course, it all comes back to the golden rule - "do unto others as you would have them do unto you". Or as someone else wrote it, before you judge me , walk a mile in my moccasins.
Saturday, July 25, 2009
empathy
Empathy
What is it and why is it important?
Empathy is the capacity to walk in another's shoes, to know by experience what they are feeling and to view things from their perspective. It helps one to comprehend another's actions and to give advice and comfort when needed. It is different from sympathy. You can sympathize with many, basic human compassion, but it takes a shared experience to empathize. For example: I can sympathize with and reach out to care for someone who has lost a child , but I cannot empathize because I have never had a child, let alone lost one.
On the other hand, I can empathize with someone who has lost a parent, because years ago I lost both my parents (at different times) and so I know first hand how it feels. I can help (and have helped) someone walk through the process of grief - and I know that it is a process,not just a one-time deal.Is my degree of caring different in the two cases? No, but my capacity to understand and aid is.
Why is this important? Because today empathy is getting maligned by those who, in my opinion, have no concept of what it means. President Obama stated as one of the desired qualities of a Supreme Court nominee that they be a person who demonstrates empathy. His selection of Sonia Sotomayor has been attacked, because people mistakenly tag empathy as being "code" for bias, prejudice, or giving preferential treatment to minorities. They have taken out of context her "wise Latina" comment. Her comment about a "wise Latina" being a better judge than a white male was in the context of cases involving discrimination on the basis of race or gender. In those cases a "wise Latina" would have a much greater capacity to understand the position of the one alleging discriminaton than a white male judge, because of her personal struggle to overcome discrimination. The better a judge understands the positions of the parties to a case the better they can make a wise decision.
The problem with some people is that they seeing judicial proceedings as simply intellectual exercises, detective processes, or comparative philosophical debates. They fail to see that it involves real people -more on that in another post - and that their decisions have to take into account the effects on those lives as well as the specific points of law. Otherwise real people get hurt.
For Biblical reference - see Hebrews 4:15 - seeking to encourage us the writer says of Jesus - "for we have not a high priest who cannot be touched with the feelings of our infirmities, but who was in all points tempted like as we are, yet without sin"...He knew what it was like to be hungry,thirsty,tired, abandoned, betrayed, slandered, pulled about in every which way and enticed to do wrong -yet he did not yield to it. He , the righteous judge, empathizes with us, yet loves us all equally. That is the model for a judge and I applaud President Obama for the wise choice he has made. Not only is she highly qualified academically (first in her college class, high honors graduate) and career-wise (nearly 17 years on the federal bench, in legal practice of one sort or other for nearly 30 years), but she has overcome barriers of race and gender and seeks to help others do the same.
What is it and why is it important?
Empathy is the capacity to walk in another's shoes, to know by experience what they are feeling and to view things from their perspective. It helps one to comprehend another's actions and to give advice and comfort when needed. It is different from sympathy. You can sympathize with many, basic human compassion, but it takes a shared experience to empathize. For example: I can sympathize with and reach out to care for someone who has lost a child , but I cannot empathize because I have never had a child, let alone lost one.
On the other hand, I can empathize with someone who has lost a parent, because years ago I lost both my parents (at different times) and so I know first hand how it feels. I can help (and have helped) someone walk through the process of grief - and I know that it is a process,not just a one-time deal.Is my degree of caring different in the two cases? No, but my capacity to understand and aid is.
Why is this important? Because today empathy is getting maligned by those who, in my opinion, have no concept of what it means. President Obama stated as one of the desired qualities of a Supreme Court nominee that they be a person who demonstrates empathy. His selection of Sonia Sotomayor has been attacked, because people mistakenly tag empathy as being "code" for bias, prejudice, or giving preferential treatment to minorities. They have taken out of context her "wise Latina" comment. Her comment about a "wise Latina" being a better judge than a white male was in the context of cases involving discrimination on the basis of race or gender. In those cases a "wise Latina" would have a much greater capacity to understand the position of the one alleging discriminaton than a white male judge, because of her personal struggle to overcome discrimination. The better a judge understands the positions of the parties to a case the better they can make a wise decision.
The problem with some people is that they seeing judicial proceedings as simply intellectual exercises, detective processes, or comparative philosophical debates. They fail to see that it involves real people -more on that in another post - and that their decisions have to take into account the effects on those lives as well as the specific points of law. Otherwise real people get hurt.
For Biblical reference - see Hebrews 4:15 - seeking to encourage us the writer says of Jesus - "for we have not a high priest who cannot be touched with the feelings of our infirmities, but who was in all points tempted like as we are, yet without sin"...He knew what it was like to be hungry,thirsty,tired, abandoned, betrayed, slandered, pulled about in every which way and enticed to do wrong -yet he did not yield to it. He , the righteous judge, empathizes with us, yet loves us all equally. That is the model for a judge and I applaud President Obama for the wise choice he has made. Not only is she highly qualified academically (first in her college class, high honors graduate) and career-wise (nearly 17 years on the federal bench, in legal practice of one sort or other for nearly 30 years), but she has overcome barriers of race and gender and seeks to help others do the same.
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