Activist Judge *DERAILED! by Judicial Application of ACTUAL Law[Click to read]
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.
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!