Tag: Judiciary

Willet for the Fifth

One of the few bright spots for the Trump Administration so far has been his nominations for the judiciary. Gorsuch has worked out well so far and other conservative justices are joining the ranks. To be fair, Trump is mainly working from a list produced by the Federalist Society. But that, in itself, shows a bit more wisdom than we’re used to seeing: he’s recognizing that he’s not a legal expert and should defer to those who are.

This week, he nominated Justice Don Willet, chief justice of the Texas Supreme Court, for the Fifth Circuit. It’s a great choice. While Willet’s court doesn’t deal with criminal matters, his decisions on civil matters have shown a libertarian bent. He’s also one of the more popular accounts on Twitter, where he stays away from hot button issues and mainly posts about history, the law and occasional humor. He has an inspiring
life story
, having been adopted, raised by a single mom and become the first college graduate in his family.

My only reservation is his lack of experience in criminal matters, which I think is something badly lacking in our judiciary. But hopefully he will bring the libertarian tendencies to that as well. We’ll see.

Trump v. Curiel

Over the last few days, Trump has been launching attacks at the judge who refused a summary judgement in his favor on lawsuits involving the alleged scam known as Trump University. Judge Curiel ruled partially in Trump’s favor and partially against, throwing out the demands for an injunction but allowing the demands for damages to proceed. Trump then attacked Curiel, claiming that he is biased against Trump because he’s Mexican and doesn’t like Trump’s position on deportation.

Ken White has a great lawsplainer on the rules of recusal and bias. The TL;DR version is that Trump is full of it (surprise!). First of all, his lawyers haven’t asked for a recusal. Second of all, the reason they haven’t asked for a recusal is because demanding a judge recuse himself simply because he’s “Mexican” (Curiel is a first-generation American born in Indiana) wouldn’t work:

Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it’s sanctionable to make it.

But even that’s going too far. The case here does not involve Hispanics or immigration. It’s a case about fraud involving Trump University. What Trump is saying is that Hispanics can not possibly be judges for him in any proceeding because they might not like his positions on unrelated issues. The press has called these comments “racially tinged”. I won’t. If Trump is saying that Hispanics, by sole virtue of being Hispanic, can not judge his cases, that’s pretty much the definition of racism.

(Trump supporters are harping on Curiel’s association with the La Raza Lawyers of California, deliberately or ignorantly conflating it with the National Council of La Raza. I’m not going to get into NCLR right now, but these are not the same things. They’re not even close to the same thing. And even if they were, it’s not clear that this would necessitate Curiel’s recusal.)

I’m not fond of attacks on judiciary. I wasn’t happy when Obama did it for political reasons. And I’m certainly not happy when Trump does it for his personal benefit. However, I think we may be overthinking this. Our own Thrill sent this out the other night.

I think Thrill has hit it on the nose. Trump is trying to defuse an electoral liability. Trump is many things, but he’s not an idiot. He knows that Trump University could be a big liability in the campaign. So he’s already delegitimizing the result, trying to pretend that the University controversy is just people out to get him because of his awesome ideas.

To be fair, our mainstream politicians and political commentariat are in glass houses on this one. For years, any SCOTUS decision they disagreed with was the result of politicization of the Court. If the conservatives opposed Obamacare, it was because of politics. If SCOTUS overturned campaign finances “reform”, it was politics. The extension Trump has made is to extend that excuse making into his personal lawsuits, rather than just political cases. But the groundwork for delegitimizing the Courts has been well laid and the people who laid it are the very ones complaining about Trump.

But this is a new low. Trump is attacking the integrity of the federal judiciary because of its effects on his personal finances and personal political ambitions. A federal judge is being slimed as collateral damage on his way to the White House. Right now, the GOP is rallying behind him, hoping he’ll advance their agenda. But, throughout this campaign, his has instantly and viciously throw anyone who has the temerity to oppose him under the nearest bus. What’s it going to be like when he’s President?

Post Scriptum: And just in case were’ still on about Trump not being establishment? The Florida AG decided not to join Trump University suits around the same she got a donation to her campaign.

The Death of the Judiciary

So this was happening:

A member of the Oklahoma House drafted a resolution Wednesday seeking the impeachment of state Supreme Court justices who granted a delay of execution to two death row inmates.

Republican state Rep. Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution Monday to Clayton Lockett and Charles Warner, both of whom were scheduled to be executed this month.

Lockett and Warner, who aren’t challenging their convictions, have filed a civil lawsuit seeking the source of the drugs used to execute them. Pending the resolution of that lawsuit, they asked for a stay of execution.

The Court of Criminal Appeals has said it couldn’t weigh in on the delay of execution because it didn’t have the power or the authority, so the high court said a “rule of necessity” led to its decision Monday. Under the state constitution, the Supreme Court handles civil cases while the Court of Criminal Appeals takes those involving inmates.

The Court later dissolved the stay.

At issue here is that the State of Oklahoma is refusing to reveal the drugs they use to execute people. Ostensibly, this is to protect companies that manufacture those drugs from being harassed by anti-death-penalty activists.

I’ll get into the merits of the case in a moment. But what I want to focus on is what I see as a looming threat to an independent judiciary. Over the last couple of decades, we have seen a slow push to gradually eviscerate the independence of the judicial branch. Politicians rail against “activist judges”, each political side screams blue murder when SCOTUS rules against them and now we finally have impeachment proceedings because of a disagreement with a court. And this isn’t confined to conservatives. Every time SCOTUS rules against liberals, there are cries to impeach the justices or at least limit their terms (conveniently to just after the last Republican President left office).

While these cries might be satisfying to those who rail against “activist” judges and are still fuming from either the Obamacare or the Citizens United decision, I see this as fundamentally dangerous to liberty. Because the protection of our liberty and our Constitutional rights requires an active independent judiciary. Both sides should understand this. Conservatives have won key victories in cases like Heller because the bench decided to act against the “will of the people” as expressed through their legislature. And some of our most bitter defeats — Kelo and Obamacare, in particular — have come about because the judiciary wasn’t activist enough and wouldn’t overturn a law. Liberals have also won key victories — like last year’s gay marriage decision — when the judiciary has over-ruled the “will of the people”.

In the end, this boils down less to any real philosophy about the role of the judicial branch than to whining whenever that branch doesn’t do what we want. Objecting to bad court decisions is fine. In fact, I think it’s required in a healthy Republic. But the tone of the last few years had turned away from criticism to active attacks and calls to limit the independence of the judiciary.

This trend worries me. I have expressed this concern before, but it’s worth repeating. I fear that we are slowly moving toward a regime where there is basically no one protecting our Constitutional rights. Congress and the President rarely, if ever, consider the Constitutionality of their laws. They say that’s for the Courts (in fact, Bush said exactly this when signing the blatantly unconstitutional McCain-Feingold Law). Everyone seems to agree that Presidents are just supposed to enforce the law, never bother with whether those laws violate our basic freedoms (with the exception of the occasional veto). And with the railing against courts for “ignoring the will of the people/legislature”, we’re moving away from judicial review as well. So given these facts, who the hell is defending our Constitutional rights? Jon Stewart?

This is the complete opposite of how things should be. When the government acts, the branches of our government should be like the officers in a nuclear missile silo — nothing happens unless all three turn their keys. All three have to agree that it is within the power of government; all three have to agree that it does not violate our Constitutional rights. Congress must not pass laws that violate the Constitution; the President must veto ones that do and refuse to use unconstitutional powers that the legislature gives him*; the Courts must bounce any law that violates the Constitution.

(*To be clear, this doesn’t mean the President should act on his own or rewrite laws or ignore laws. This power, which would be used very rarely, would only be used in the negative sense of the President refusing to utilize powers that he deems unconstitutional, such as if Congress suspended habeas.)

Now as to this particular case: some commentators are avoiding talking about what the criminals did. I won’t. One shotgunned a teenager and buried her alive. The other raped and murdered a child. While I am neutral on the death penalty, these would probably be the guys you would want to apply it to.

But the issue here is not the horrible crimes that these vermin committed. The issues it that Oklahoma is using a secret recipe for lethal injection — a formula that tonight resulted in the botched execution of one of the two men in this case. When the methods of execution are secret, there is literally no way to decide if it constitutes cruel and unusual punishment.

Now maybe you think with what these guys did, they deserve to suffer. But we have laws and a Constitution for a reason and that reason is to protect everyone from the excesses of government. And when you chip away at anyone’s Constitutional rights, you chip away at everyone’s. The destruction of our Constitutional liberties always starts with people who everyone agrees are despicable, before proceeding to the rest of us. Free speech killers don’t start with Sesame Street; they start with the Klan and the Nazis. Surveillance fetishists don’t start with your backyard; they start with terrorists. And attacks on the protections in our criminal justice system don’t start with some kid smoking pot; they start with murderers and child molesters. There is good reason to believe that at least one innocent man has been executed and a new study claims that one in 25 death row inmates, and perhaps more, are innocent. Do they deserve to suffer?

We can not yield on Constitutional rights, not even with these pieces of human debris. Because once the freedom destroyers gain an inch, they will ask a mile.

But … even if we posit that the Court was wrong to delay these executions, a call for impeachment is ridiculous overkill. The Court did not set them free, commute their sentences or bake them cookies. They simply delayed their executions (as it turned out, for a few days). If the Courts are in danger of impeachment every time they make an unpopular decision, we might as well just do away with the Courts. Try people on Oprah and execute them on Springer. Who cares if innocent people are killed cruelly? It’s what the people want, isn’t it? That’s what baby rapists and child killers deserve, isn’t it?

An independent judiciary is going to make some mistakes and some bad decisions. But a non-independent judiciary that is subject to the whims of the mob is going to make bad decisions constantly. We already have two of our branches constantly doing the wrong thing. Do we really need the third to join in the fun?