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January 12, 2006

A judge calls for civility

The big news about the judiciary these days is coming out of D.C., where the Senate is conducting hearings on the nomination of Sam Alito to the U. S. Supreme Court, but Iowa Chief Justice Louis A. Lavorato's "state of the judiciary report" to the legislature this week deserves at least passing notice.

Justice Lavorato's speech included this passage: "I would be remiss if I did not talk about the role of judges and judicial independence, given the present climate surrounding the judiciary. In recent years, we've seen an escalating national discourse about judges and judicial decisions.

"I'm all for vigorous public debate regarding the merits of judicial decisions and the role of the courts. But the quality of discourse about the courts has degenerated. Rather than legitimate criticism and thoughtful commentary intended to inform and enlighten, the public is barraged with rash generalizations, loaded sound bites, and alarmist overstatements, intended to exploit and inflame. The sole purpose of these tactics is to politicize our courts so that judges are servants of popular ideologies rather than servants of the law. These attacks are designed to weaken the very institution Americans rely on to uphold the Constitution and protect their rights. It's time to replace the excessive rhetoric with plain facts and measured responses."

Past time, actually.

The "excessive rhetoric" Justice Lavorato mentions comes from many directions. It's poisonous, persistent and ignores facts, decency and common sense if there's a chance to further fire up the "base."

Examples from the past year or so:

-- Then House Majority Leader Tom Delay's declaration, in the wake of Terri Schiavo's death, that "The time will come for the men responsible for this to answer for their behavior."
The "men" were the many judges in the Florida and federal judicial systems who, in following the law, issued rulings with which "The Hammer" disagreed. His statement was particularly disturbing given that the judge most identified with the case was under constant guard because of the many threats of violence against him.

-- Alan Keyes, once a candidate for president and once a candidate for the U. S. Senate from Illinois, declared that "I believe that the judiciary is the focus of evil in our society today."

-- John West, of the Discovery Institute, which pushes creationism (in the guise of "intelligent design), said a judge who ruled against forcing the doctrine into the classroom, was an "activist judge" with "delusions of grandeur."

These men are all entitled to say whatever they want, of course, but yes, as Judge Lavorato said, their words are designed to "politicize our courts so that judges are servants of popular ideologies rather than servants of the law."

There are disturbing trends in the courts, especially the U. S. Supreme Court, which over its history has been too willing to expand government power at the expense of states and individuals.

The Founders would be pretty astounded, for example, at the uses to which the commerce clause is put these days. How is it that the Constitution's grant of power to Congress to "regulate interstate commerce" is used to forbid California to experiment with marijuana for medicial purposes, as one very small for-instance? Another: There is even a case from the 1930's in which the commerce clause was used to justify telling individual farmers how much grain they could grow.

Pretty nonsensical stuff, I think. But it doesn't make the judiciary the "focus of evil" or inspire me to warn, in heated circumstances, that "these men will answer for their behavior."

Justice Lavorato's cautionary words are well worth heeding.

Posted by jcb at January 12, 2006 12:29 PM


Quite right, John. It's high time we did something about the circus "advice and consent" has become.

The examples you cite all involve Republicans. Both sides are guilty. Bear in mind the generic term for this sort of judicial bear bating is Borking. The godfather of Borking is Ted Kennedy, the buffoonish king of his party, who famously brayed: "Robert Bork's American is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, children could not be taught about evolution."

Compared to that kind of hysteria, DeLay's comments seem almost reasonable.

The Dems started ramping up what became Borking a year before Bork's failed appointment, when they tried to derail President Reagan's nomination of William Rehnquist as chief justice because the deed to a house he bought in 1961 had a 1928 covenant barring its sale to non-whites.

And then there was the embarrassing attempt to pillory Clarence Thomas because he had allegedly used coarse language in the presence of Anita Hill. (I wonder whatever happened to her?)

Both parties are guilty. A pox on both their houses.

Forcing presidents to search for appointees whose track record is too meager to fuel a partisan nomination battle is a hell of a poor way to do business.

Posted by: Michael Romkey at January 13, 2006 11:58 AM

Amen to Romkey's comments---after all it was Bloviating Joe Biden who, when the Democrats controlled Congress and the WH set in place the rule that no Supreme Court nominee could be questioned about how they would rule in future cases. Of course then, Ginsberg, former attorney for ACLU, was the nominee and the Democrats had all the power. Payback's a bitch, ain't it?

But even that Weapon Of Mass Bloviation, Joe Biden now says the confirmation process is "broken" and that we should return to the 1920's when Supreme Court nominees were were given an up or down vote in the Senate.

I have to agree. At least Biden only embarrassed the few who live in Delaware. Those of us who live in IL had to live with Durbin's inane questions/comments. It's time for change.

BTW Mike Romkey, do you have a political blog, or do you just blog about vampire stuff?

Posted by: paladin at January 13, 2006 01:24 PM

From Romkey: "... buffoonish king ... who famously brayed ... "

From Paladin: "... Bloviating Joe ..."

It is SO hard to be civil, even when we're talking about the need for civility.

Anyway, I've been able to watch just a few hours of Judge Alito's confirmation hearings, but even that little bit (scattered over several days) has been painful -- particularly those moments when 1) various senators have pressed for what amounts to an advance decision on issues that might come before the court; and 2) various senators have offered adulatory speeches that left we wondering where the judge left his halo and wings.

The way some lines of questioning have been framed is disturbing. Questions concerning whether Judge Alito sided with the government or the "little guy" in deportation cases is one example. In seven of eight cases in which there was a split decision by the appellate court on which he sits, Judge Alito sided with the government, said the senator (Durbin, if I recall correctly).

First, or course, is the possibility that the government was right in those seven cases (though the possibility of the government being right seven of eight times about anything strikes me as being remote). More to the point, though, is that in limiting the context to split decisions, Sen. Durbin, or whoever, left us ignorant about the judge's total record. Maybe, if all decisions were considered, we'd have a totally different impression about how deferential Judge Alito is to the government's position.

Judge Alito has a pretty substantial record; in reading some it it, about some of it and in listening to the questions during the hearings, I see things that bother me a lot and other things I find admirable. Pretty much the same with sitting members of the court.

I greatly admire Justice Stephens, but I think's he's been way wrong on some cases -- recent ones on eminent domain and medical marijuana to name two. I most often disagree with Justice Thomas, but on these two cases, he took what I thought was the right position -- on the side of state and individual rights.

Picking someone for one of the nine chairs is, in the end, the biggest gamble a gambling nation takes.

The mechanism we use is rife with partisan strife as bitter as that which accompanied our birth, but with the vicious street corner phamplet amplified by the wonders of the communication age.

In the end, too, it is impossible to know the manner in which our choice will react to the reality of a civic responsibility unique to the position -- past is no sure predictor of the future.

Among sitting members, Justice Souter has fulfilled his responsibilites in a manner that displeases that segment of society that viewed him as "their" guy when he was nominated. The street corners are awash in phamplets.

Then there's the case of Earl Warren. He was first a law-and-order county prosecutor who, as attorney general and governor of California, was a leading proponent on interning "the Japs." If I'd been in the Senate at the time of his nomination, I'd never have voted for him.

But he and his court gave us Brown vs. Board of Education, Miranda vs. Arizona and the one-man, one-vote ruling.

Judge Alito is not under-qualified, as was Harriet Miers.

No shocking ethical blemish has emerged, though it is troubling that, having gone out of his way to pledge recusal in Vanguard cases, he then ruled on one. The explanations have been a bit lame.

He has, despite the many cautious and hedging answers given the committee, said straigforwardly that he recognizes a constitutional right to privacy. Please, do not see code for "abortion" when I mention privacy, though if Judge Alito truly does see privacy as a protected right, it will make it more difficult for him overturn Roe vs. Wade.

Privacy is pretty much a joke these days, what with credit card companies losing and selling information about us, with lists of our phone calls availble for sale on the internet -- the sins against privacy are rampant and rapidly getting worse. 'nuther one of the wonders of the information age.

If we are ever to retrieve the situation short of the DHS and leading retailers installing chips in us, we need friends in high places. Will Judge Alito be one?

The president that nominated him has little if any respect for privacy; the Senate that will consent, or not, does too little to protect us; more often it rushes to approve ever-more invasive measures. (Let's talk more about Real ID sometime real soon.)

Neither the weakness of the nominator nor those of the consenters should disqualify Judge Alito. Haven't seen, heard or read anything else that does, either.

It's time to roll the dice.

Posted by: jcb at January 13, 2006 06:43 PM

jcb, if you want Supreme Court justices that reflect your POV, your party will have to win elections. When Bill Clinton was President, he replaced the conservative Byron White with the ultra-liberal Ruth Ginsberg. This is the perogative of elected Presidents. For liberals like you to lament the fact that GWB is not advancing ACLU lawyers to the Supreme Court is just silly and it makes the rest of us think you don't know how our government works, or what the Constitution provides. Get the people on your side, don't just bitch about how GWB isn't appointing judges who will advance your agenda. Sheesh!

Posted by: paladin at January 13, 2006 07:02 PM

Paladin, did you not read what I wrote:

"Neither the weakness of the nominator nor those of the consenters should disqualify Judge Alito. Haven't seen, heard or read anything else that does, either.

It's time to roll the dice."

Which part of "Let's go with Alito" do you not understand?

Posted by: jcb at January 13, 2006 08:27 PM

Well, I blew that, jcb. The tone of your comment of 6:43 must have faked me out. Now that I read it again, I was way off the mark. I'd apologize, but that fact that I made myself look like an idiot should be apology enough.

But really, jcb, a guy who says Greg Mitchell is full of crap isn't really in any position to lecture the rest of us on "civility".

Posted by: paladin at January 14, 2006 01:02 PM

Also, don't forget this bit of civility: "I think the Rev. Phelps is queer as of $3 bill".

Is this just another case of liberal "do as I say, not as I do"? Just askin'.

Posted by: paladin at January 14, 2006 02:29 PM

Paladin -- no problem. The eye and the mind play the occasional trick and there's not much to be done except move along, saying as we go, "There but for the grace..."

Re: civility -- context counts. This string started with a post on Justice Lavorato's call for toning down the nasty rhetoric in the debate over the judiciary. In chiding (gently, I intended) you and Romkey for tossing a little nasty rhetoric into otherwise valid comments, I wasn't "lecturing" anyone -- just hoping that, on this string at least, the fire could be skipped in favor of light.

As for Greg Mitchell and Fred Phelps, just me let me say ... oh, never mind, this is a string about judges, the courts and civility.

Posted by: jcb at January 14, 2006 05:05 PM