girl ipsa loquitur: Activist Judge *DERAILED! by Judicial Application of ACTUAL Law Email me!

Tuesday, August 31, 2004

Activist Judge *DERAILED! by Judicial Application of ACTUAL Law

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I was surfing through the legal news this morning. Having some coffee, thinking about EVIDENCE -- class which I start on Thursday -- and contemplating a slew of civil law suits against Dave Matthews Band for battery when I noticed this interesting quote:

"We were on pins and needles on this one," said Gloria Feldt, president of Planned Parenthood Federation of America. "The judge was very aggressive in his questioning and very transparent in his articulation of his personal views on the matter. Fortunately, he chose to uphold the law."

It is printed in an article about the recent revocation of the Partial Birth Abortion Ban.

Let's start there; I do not want to discuss the partial birth abortion issue. Mainly because I believe that it is a medical issue at this point, I am not a doctor, I do not have all the necessary facts to even formulate an opinion AND it is beside my point here.

What I do want to discuss is this nonsense idea that U.S. District Judge Richard C. Casey chose to uphold the law. (I can see the bumper stickers now "It's a LAW not a choice!") How can any reasonable person continue to suggest that judges just make it up as they go along?

It has been a frequent assertion here at Girl Ipsa that "If you don't like what's going on then you need to change the law." Because the law is controlling. Not the judge and, much to my biggest Fan's chagrin, not the jury. Everything that goes on in a court room is constrained within the bounds of the law. My problem with Ms. Feldts statement is the implication that the judge might have decided it differently, based on his personal opinion.

That's poppycock.

Fan and I were talking about juries when he admitted (He was NOT read his Miranda rights and therefore I couldn't just pass summary judgment based on his confession and lock him in my garage) that he would NEVER follow the judges instruction if he sat on a jury. "You know, if the judge says 'You must reach such and such conclusion' or 'You must NOT consider the testimony I have stricken', I wouldn't listen to him. I'd just do what I wanted to do, or consider what I wanted to consider."

Talk about activist judges! Fan wants to be an activist juror.

Still, this plan of Fan tends to illuminate the idea that our system is susceptible to these random acts and opinions of its constituents. Jury nullification aside (which is not one vigilante juror like Fan) the legal process is fairly predictable on the LAW front. Obviously, the trier of fact has to make determinations as to truthfulness of testimony and as to the inferences to be drawn from evidence. Yet, even in that case the trier (judge or jury) is constrained to a reasonable standard and therefore can not just flip a coin or advance his own agenda with out regard to the reasonableness of his determination.

Apparently, in this case, U.S. District Judge Richard C. Casey holds some very strong, but still personal, opinions about the practice at issue. While to the every day guy, like our beloved Fan, the notion of deciding this case based upon the law and not on the personal sentiment of the decision maker may seem like a difficult thing to do, it is my assertion that it's just his job. The ability to remain objective, to apply the law, and to constrain ones own personal feelings are judicial skills that should, in practice, be well utilized by ALL judges.

I'd like to applaud Judge Casey for following the law, but that would be rather like applauding the bag boy at the grocery for putting my stuff in the bags. It's his job. Of course he did it.

That's what we pay him for.

** I specifically chose the word DERAILED because it's been popping up in connection with right wing conspiracy theorist rantings. Plus, it's a really fun visual: Judges in train cars, headed for some absurd, impermissible judicial legislative goal, careening off the tracks and bursting into flame. Next time they'll think twice!


Blogger Christopher Chopin said...

First and foremost, the intent element in battery would make that suit difficult...try going after DMB on public nuisance grounds for injunctive relief...that way we all make out.

On to the issue at hand, however, I think the first problem is an appeal to some sort of natural law on the part of both sides of the divisive issue, which I won't be even touching either, suggesting not alternatives of opinionated rulings or else cold adherence to precedent, but of a ruling which aligned itself with this platonic form of what the law ought to be, and one that didn't...

A bigger issue, tho, is that the history, especially at the supreme court level, on this topic is itself so divided. If you believe good old Antonin, Roe v. Wade itself was a travesty in the eyes of the law, the second circle of hell after Griswold raised a demon named "penumbra." Now I'm not so opposed to a little social justice finding its way into a ruling, but if you believe the textualists that's exactly what the law on abortion is tantamount to--an improper interpretation of the constitution made on societal grounds.

Now I like O.W. Holmes as much as the next guy. But the prospect of a judge taking on the power to make changes in the society's structure based on his own whim scares the heck out of me. But even I can't say that, except in a case like this one where O'Connor's test from Planned Parenthood v. Casey is directly violated, the law a judge should follow is altogether clear, and capable of being free from opinion. If you look at the Webster v. Reproductive Health Services opinion, the conservative Court's choice for a better opinion on abortion, what is essentially an intent requirement would be necessary before a law would be unconstitutionally restricting abortion. If you buy the O'Connor story, you're bound to apply a somewhat arbitrary standard to balance a "legitimate state interest" itself divided between mother and child and a penumbral right of privacy.

But either way, its guesswork.

12:37 PM  
Anonymous Anonymous said...

I hate to say this, but I think your biggest fan has a point. . .

When the Constitution was authored, the word jury was defined as, “a group of citizens empowered to judge both the law and the evidence [presented].” And the jury instructions given by Chief Justice John Jay in the very first jury trial held before the U.S. Supreme Court included these words, “it is presumed that juries are the best judges of fact; it is, on the other hand presumed that courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take it upon yourselves to judge of both, and to determine the law as well as the facts in controversy.”

In fact the idea and power of jury nullification is something that the early colonists held in reverent esteem. This power is in essence part of the foundation of this great nation.

So whether it is one rogue juror, like your biggest fan, taking a solitary stand in a criminal trial; or a whole venire of crazy freedom loving citizens -- it is our inherent right and duty to cast the final vote for independence and self-determination. We should feel truly free to be the final arbiter of both the issues of law under which the defendant is charged, as well as the facts in evidence. The jury is correctly positioned as the ultimate check and balance against unjust law and tyranny -- just as the Framer’s intended.

So to the biggest fan I say this -- the government cannot deprive anyone of liberty without your consent so stand firm and be that rogue juror; save us from the oppression of unreasonable prosecution.

5:50 PM  
Blogger Biggest Fan said...

As usual good article-clever-logical-and heartfelt--since I am being quoted and discussed--do not forget I hate designer juries and the high paid consultants (rats) that attempt to rig our judical system.

Now that that is out of my system. Partial birth abortion---I am not a doctor but that will not stop me from discussing---ITS WRONG. What kind of a society are we if we condone infanticide---the AMA has stated that with modern medicine the procedure is never necessary to save the life of the mother.

Now as far as judges upholding the LAW. I ask who makes the law---I thought that was the job of congress (ie the people) this is the second time that congress has tried to make a law. They atempted to fall within the guidelines as outlined by the supremes--however according to good judge Casey (as he upholds the LAW)they (congress) failed and good judge Casey did not strike out in Mudville he struck down the LAW as congress had passed. What is it going to take --gasp--a constitutional amendment.

7:15 PM  
Blogger Christopher Chopin said...

No, all it takes is for Congress to read Casey v. Planned Parenthood. O'Connor writes a roadmap on how to easily legislate to abridge the right to choose, and after 12 years still no legislature has read the thing. Lucky us.

10:00 PM  

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