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ImperialEagle
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US Judges Being Bullied By Politicians

Sat Sep 25, 2010 1:26 pm

Now politicians and others with a strong political agenda have found a way to bully judges into deciding cases in their favor, by use of intimidation. Oh, its been done before, but not on this scale. Putting judges on notice that they will be replaced if they don't vote along "party" lines or some Special Interest Groups' agenda, such as that ridiculous "American Family" group of religious zealots.

Just when you think the extremeists in our country have been held at bay, they find another rat-hole to crawl through.

Heres the link to the article in today's New York Times:

http://www.nytimes.com/2010/09/25/us/politics/25judges.html?hp
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lowrider
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 2:07 pm

It is actually state judges, since federal judges are appointed. You should change the title. As for judicial elections, there are pros and cons to holding judges accountable via that method. Perhaps you have a better one?
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Dreadnought
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 2:38 pm

The NYT's headline is "Voters Moving to Oust Judges Over Decisions", as if that is somehow a bad thing. A bad thing would be ousting judges based on hair color or ethnic background. Of course voters are going to hold elected judges accountable for bad decisions.

Bill O'Reilly has made some impact here, calling attention to certain judges who gave criminals with a long history of repeat offenses very lenient sentences. I think that's a good thing. The foremost duty of the criminal justice system is to put criminals away so that they can't hurt anyone else. Every other concern (rehabilitation, punishment, etc) is a distant second.
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Mir
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 2:42 pm

Quoting Dreadnought (Reply 2):
The NYT's headline is "Voters Moving to Oust Judges Over Decisions", as if that is somehow a bad thing.

It is troubling, yes. Judges are supposed to rule based on the Constitution and established legal precedent, not based on what will make the people happy.

-Mir
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rfields5421
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 2:45 pm

Read John Grisham's book "The Appeal" to be thoroughly depressed.

Though the political pressure on elected judges is high, it still hasn't reached the level of the economic pressure being applied to those judges.
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dxing
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 2:52 pm

One quote in the story says it all. Elections are almost the only way to have a check on a Judge. As the story describes it's still difficult to oust a Judge via the election process. I wonder if this would even be a story if the Judges weren't under threat of being voted out of office for deciding that someones property or gun rights were wrong.

[Edited 2010-09-25 07:53:49]
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Mir
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 3:15 pm

Quoting dxing (Reply 5):
Elections are almost the only way to have a check on a Judge.

Other than the appeals process and the legislature, of course.

-Mir
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Dreadnought
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 3:30 pm

Quoting Mir (Reply 3):
It is troubling, yes. Judges are supposed to rule based on the Constitution and established legal precedent, not based on what will make the people happy.

What if rulings based on the Constitution is what makes people happy, and the judge is not doing that? That appears to be the most significant situation that causes friction.
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ImperialEagle
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 10:11 pm

Quoting lowrider (Reply 1):
It is actually state judges, since federal judges are appointed. You should change the title

Yeah, well since there are so many members from around the world I wanted to imply judges from the U.S. as opposed to judges from another country. I think everyone "gets" it the way it is.
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DocLightning
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 10:24 pm

I'm just not seeing the problem. We can't have every judge be appointed for life. That's not checks and balances. That's a tyranny of the bench. The writer of this opinion piece is upset because it's right-wing groups doing this and he doesn't like them. Tough cookies. Judges have been elected for the history of the nation. Any election is necessarily a political process. It involves campaigning.

If a case is sufficiently important to the Constitution, then it can be appealed upwards to the SCOTUS, and they are appointed for life.
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Yellowstone
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 10:36 pm

Quoting Dreadnought (Reply 7):
What if rulings based on the Constitution is what makes people happy, and the judge is not doing that? That appears to be the most significant situation that causes friction.

Two points... First, if a judge's rulings don't agree with the Constitution, the decision will be overturned on appeal. Second, let's not pretend that a large portion of these "anti-Constitutional" rulings aren't just anti-your interpretation of the Constitution rulings.
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ltbewr
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 10:58 pm

First of all, in some but not all states, trial level and up to top appeal courts judges are elected or as in California, face a confirmation election (for the highest state appeals court, the Supreme Court) after so many years. I am deeply opposed to the idea of any elected judges, (we don't have them except for County 'Surrogate' Judges, who are actually in an administation position as to wills and estate issues). When elections, they always say they will be tought on any criminals, rather than openly fair, they get campaign contibutions from lawyers (usually corporate defense and Plaintiff personal injury) which can comprimise them.

Where politcans can have a field day is to threaten to not vote for or to play games with appontment proces judges. There is a lot of pressure, especially as we see on the higher Federal levels, or State appeals courts, to put in 'conservative' judges, one that will be tought on criminals, against resonable social changes (anti-full same gender marriage, anti-abortion) and worst of all, totally pro-corporate.
 
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RE: US Judges Being Bullied By Politicians

Sat Sep 25, 2010 11:54 pm

Quoting DocLightning (Reply 9):
I'm just not seeing the problem. We can't have every judge be appointed for life.

As a note, in Germany, constitutional judges (which could be considered the most important judges in our country) aren't elected for life. They have a term limit of 12 years or have to retire once they hit 68. In any case, they can't be re-elected at all.

I do wonder why the nomination of federal/appeals court judges and Supreme Court justices is so heavily politicised in the US, especially SCOTUS judges. I mean, the way judges are nominated, I get the feeling that this can bring lead the separation of powers ad absurdum. Presidents nominate them based on whether they're on the same boat as they are in terms of political agenda, then the senate takes over for the confirmation vote.

Why not have a bipartisan commision, or an independent panel of the judge's peers decide on who gets nominated before taking the process to the senate for confirmation? In Germany, I don't know how it is precisely done (only that both chambers of parliament are involved in the confirmation vote for constitutional judges), but neither the chancellor, nor the president are involved in nominating them.
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NoUFO
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 12:17 am

Quoting LTU932 (Reply 12):
In Germany, I don't know how it is precisely done (only that both chambers of parliament are involved ....)

You need a 2/3 majority which leeds to a "scratch my back and I'll scratch yours" mentality.
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dxing
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 12:45 am

Quoting Mir (Reply 6):
Other than the appeals process and the legislature, of course.

It's not garuanteed that a higher court will accept an appeal and the legislature can only act on malfeasance in office.

Quoting DocLightning (Reply 9):
The writer of this opinion piece is upset because it's right-wing groups doing this and he doesn't like them. Tough cookies.

   Wait, let me read that again......   "ladies and gentleman ice water is now being served in Hell!!!   

Quoting DocLightning (Reply 9):
If a case is sufficiently important to the Constitution, then it can be appealed upwards to the SCOTUS, and they are appointed for life.

It can be appealed but that doesn't mean the higher court is under any obligation to accept it. While I understand the appointment for life I wish they would put a mandatory retirement age or some sort of means testing on that as a caveaut. I wonder about the mental condition of some of the really aged Judges and their continuing ability to serve in everyones best interest.

Quoting Yellowstone (Reply 10):
Two points... First, if a judge's rulings don't agree with the Constitution, the decision will be overturned on appeal.

Not necessarily. It might not be oveturned and it might not even be accepted on appeal.
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Yellowstone
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:01 am

Quoting dxing (Reply 14):
Not necessarily. It might not be oveturned and it might not even be accepted on appeal.

In which case the decision was in line with the Constitution to begin with.
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474218
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:11 am

Quoting Yellowstone (Reply 10):
Two points... First, if a judge's rulings don't agree with the Constitution, the decision will be overturned on appeal. Second, let's not pretend that a large portion of these "anti-Constitutional" rulings aren't just anti-your interpretation of the Constitution rulings.


There are at least two Supreme Court Judges that have publicly stated that they think European law should by applied when considering cases in front of the US Supreme Court?
 
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WarRI1
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:32 am

In R.I. the District Court Judges, etc. and Supreme Court Justices are appointed by the Legislature for life. Of course, all have to have political influence to be appointed. It is a plum job, with plum retirements. I always thought it would be a good idea to be able to vote them out. We have that cozy arrangement, you stroke me, I will find a way to repay you for the lifetime appointment. In the last 25 years, we have had two Chief Justices of our Supreme Court resign because of scandal. corruption.
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DocLightning
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:34 am

Quoting dxing (Reply 14):

Wait, let me read that again...... "ladies and gentleman ice water is now being served in Hell!!!

Because unlike some people around here, I am actually tolerant of viewpoints that differ from mine and I am an advocate for fairness, justice, and reason, rather than hard-line ideology.
-Doc Lightning-

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dxing
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:41 am

Quoting Yellowstone (Reply 15):
In which case the decision was in line with the Constitution to begin with.

That is hardly true.

Quoting DocLightning (Reply 18):
Because

Lighten up,,,
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Yellowstone
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:49 am

Quoting 474218 (Reply 16):
There are at least two Supreme Court Judges that have publicly stated that they think European law should by applied when considering cases in front of the US Supreme Court?

Citation, please.
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Mir
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 2:17 am

Quoting Dreadnought (Reply 7):
What if rulings based on the Constitution is what makes people happy, and the judge is not doing that? That appears to be the most significant situation that causes friction.

Then it comes down to a question of whose interpretation of the Constitution is correct. A question best answered by a higher court in the form of an appeal.

Quoting dxing (Reply 14):
It's not garuanteed that a higher court will accept an appeal

Which would be a sign that the judge's ruling is not incorrect.

Quoting dxing (Reply 14):
the legislature can only act on malfeasance in office.

Or they can pass laws that clarify intent if they think a judge misinterpreted previous ones.

Quoting LTU932 (Reply 12):
As a note, in Germany, constitutional judges (which could be considered the most important judges in our country) aren't elected for life. They have a term limit of 12 years or have to retire once they hit 68. In any case, they can't be re-elected at all.

That's not a bad idea, actually. That way there can still be turnover (a good thing), but we don't have to go through politicized elections, and they can focus on making the right decisions instead of the popular ones. Let them be appointed and confirmed by the legislature, have them serve out a term of however many years, and then they move on.

-Mir
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WarRI1
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 2:17 am

Quoting DocLightning (Reply 18):
Because unlike some people around here, I am actually tolerant of viewpoints that differ from mine and I am an advocate for fairness, justice, and reason, rather than hard-line ideology.
Quoting dxing (Reply 19):
Quoting DocLightning (Reply 18):
Because

Lighten up,,,

Now when the Doctor says something, I read it. I form my opinion of what he has said, very seriously.

Now the advice from dxing to "lighten up" to The doctor has to be the most hilarious reply that I have read in quite awhile, I laugh, I laugh some more, surely that was a joke, it has to be.?        
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ltbewr
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 2:51 am

Quoting Mir (Reply 21):
Quoting LTU932 (Reply 12):
As a note, in Germany, constitutional judges (which could be considered the most important judges in our country) aren't elected for life. They have a term limit of 12 years or have to retire once they hit 68. In any case, they can't be re-elected at all.

That's not a bad idea, actually. That way there can still be turnover (a good thing), but we don't have to go through politicized elections, and they can focus on making the right decisions instead of the popular ones. Let them be appointed and confirmed by the legislature, have them serve out a term of however many years, and then they move on.


Many USA states have age limits, usually between 65-75 for someone to serve as a judges at all local and state levels. Some states that have elected judges have terms that last usually for 4 years. I think that should be a similar rule in all states, with a limit of 75 for all Federal Judges. Federal District Judges (trial level) can choose 'senior status' after age 65, limiting the number of cases or even types they will preside over.

Judges can be removed from holding their posts in the USA. Local judges (municipal) can be dismissed the local governmental body, especially if there is a change in party control or if the person is not doing their job or does unethical acts. Trial and appeal judges in the Federal and State levels can have the legislative body (Congress or Senate in the Federal level) hold hearings of Impeachment with a trial held before a session of the USA Senate (or but for North Dakota which only has a one-house legislative branch the upper house of the respective State for State Judges). Normally, Impeachment is used if a Judge/Justice has committed ethical violations, like took a bribe and I think only about 20 or so times has this power been used with Federal Judges, with some not being removed from office. Impeachment penalties can range from Censure (a publicly announced slap on the hand) to removal from office. An conviction in a significant crime can also lead to automatic disbarment as normally all judges are attorney and thus cannot serve as an attorney. Most judges on all levels usually resign when facing an possible trial on ethics violations.
 
Yellowstone
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 3:48 am

Quoting 474218 (Reply 23):

Your citations don't support your claim, which was that European law was being applied in US Supreme Court cases. No one is about to be thrown in jail or fined because they violated a European law with no American counterpart. The point they make, instead, is this: wise court decisions are founded upon the exploration and combination of good ideas. Those good ideas may be found in all sorts of places - the Constitution, the writings of the Founders, prior Supreme Court decisions, lower court decisions, scholarly writings, or, yes, foreign court decisions. Rejecting a good idea just because it didn't originate in the US is silly. Heck, all the Enlightenment ideals on which our government is based are products of Europe. And when the entire world aligns on a certain issue - for example, the legality of the execution of minors - where our Constitution is silent, that weight of opinion can give useful insight into what is the right course of action.
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DocLightning
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 7:42 am

Quoting dxing (Reply 19):

Lighten up,,,

No, because I want you to know that while I may disagree with every fiber of my being with almost everything you have to say, I will defend with my life your right to say it.

I have grave doubts that you would do the same, though.
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dxing
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 1:14 pm

Quoting DocLightning (Reply 26):
I have grave doubts that you would do the same, though.

As you say......I SERVED you for 4 years so you could have the right to try and belittle me.    What you profess that you will do, I actually did. No thanks necessary though, I volunteered to do it.

Since these are State judgeships shouldn't the State they are being elected in have the absolute right to decide how they are chosen and for how long they serve?

[Edited 2010-09-26 06:15:20]
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474218
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 4:42 pm

Quoting Yellowstone (Reply 25):
Your citations don't support your claim, which was that European law was being applied in US Supreme Court cases.


You didn't read what I wrote.

I said they think European law "should" be applied. Not that "is" being applied.

And the references I provided said the same thing: several of the most liberal justices feel European should be applied when deciding cases before the US Supreme Court?
 
Yellowstone
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 6:37 pm

Quoting 474218 (Reply 28):
You didn't read what I wrote.

I said they think European law "should" be applied. Not that "is" being applied.

And the references I provided said the same thing: several of the most liberal justices feel European should be applied when deciding cases before the US Supreme Court?

Okay, I'll rephrase. Not a single SCOTUS justice wants a system where someone would be

Quoting Yellowstone (Reply 25):
thrown in jail or fined because they violated a European law with no American counterpart.

And as I said above, you haven't shown this to be the case.
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OA412
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 6:46 pm

Quoting 474218 (Reply 28):
I said they think European law "should" be applied. Not that "is" being applied.

And the references I provided said the same thing: several of the most liberal justices feel European should be applied when deciding cases before the US Supreme Court?

So what? It would be an issue if they were actually applying European law when making decisions. However, merely suggesting that European law should be applied is an entirely different matter.

Quoting Yellowstone (Reply 10):
Two points... First, if a judge's rulings don't agree with the Constitution, the decision will be overturned on appeal. Second, let's not pretend that a large portion of these "anti-Constitutional" rulings aren't just anti-your interpretation of the Constitution rulings.

  
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D L X
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 10:58 pm

Quoting Dreadnought (Reply 7):
What if rulings based on the Constitution is what makes people happy, and the judge is not doing that?

That's a fallacy because people will nearly always recast the constitution to include "things that make them happy." For instance, people who want to put the Ten Commandments in schools will say the First Amendment says that is constitutional. And if some crummy judge somewhere (or everywhere even) says it isn't, then they'll vote for someone who will recast the constitution the way they do.

VOting for judges is an abhorrent practice that should be ended immediately. We are very fortunate that Federal judges have never been subjected to votes.
 
D L X
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RE: US Judges Being Bullied By Politicians

Sun Sep 26, 2010 11:31 pm

Quoting 474218 (Reply 16):
There are at least two Supreme Court Judges that have publicly stated that they think European law should by applied when considering cases in front of the US Supreme Court?

Not two, NINE. There are absolutely occassions where foreign law must be applied in American courts. It's unfortunate that our sorry excuses for journalists have been unable to convey this fact to the public, and equally unfortunate that certain elected officials have exploited the fact that the public by and large does not know how our legal system works.

I don't blame you for not knowing that there are times where it is appropriate to consider foreign law. I blame the media and politicians.

Quoting Yellowstone (Reply 25):
No one is about to be thrown in jail or fined because they violated a European law with no American counterpart. The point they make, instead, is this: wise court decisions are founded upon the exploration and combination of good ideas.

  
 
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DocLightning
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 12:41 am

Quoting dxing (Reply 27):
What you profess that you will do, I actually did. No thanks necessary though, I volunteered to do it.

Did you do it to defend the right of someone to call you a murderer and burn an American flag in protest of your actions in combat?

If you can answer yes to that question, then you did it for the right reasons.

And yes, you did serve us (not me personally). Thank you.
-Doc Lightning-

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dxing
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 1:46 am

Quoting DocLightning (Reply 33):
Did you do it to defend the right of someone to call you a murderer and burn an American flag in protest of your actions in combat?

If you can answer yes to that question, then you did it for the right reasons.

And yes, you did serve us (not me personally). Thank you.

I did it so they, and I, could say and do as they wish, within the law. I respect and obey the law. I may not agree with them but I obey and respect them. We have differed over gay marriage many times. If the law passes and is unsuccessfully challenged in court then you and your spouse will get the same respect from me as any hetrosexual couple. Until then I will disagree with you on that and other matters but that is your right to do so. But because I disagree with someone does not mean I ever wish them ill will or harm. That is not a right that anyone has.

[Edited 2010-09-26 18:47:51]
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fr8mech
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 2:13 am

Quoting Mir (Reply 3):
It is troubling, yes. Judges are supposed to rule based on the Constitution and established legal precedent, not based on what will make the people happy.

Our legislatures are expected to provide us Constitutional laws. They fail miserably at that. Our Executive branch electees are expected to enforce laws in a Constitutional manner.

Quoting Yellowstone (Reply 15):
In which case the decision was in line with the Constitution to begin with.

Or, the new judge that reviewed the case had the same agenda. This is judicial activism.

Quoting DocLightning (Reply 9):
I'm just not seeing the problem. We can't have every judge be appointed for life. That's not checks and balances. That's a tyranny of the bench. The writer of this opinion piece is upset because it's right-wing groups doing this and he doesn't like them. Tough cookies. Judges have been elected for the history of the nation. Any election is necessarily a political process. It involves campaigning.

Very well said.

Quoting D L X (Reply 32):
Not two, NINE. There are absolutely occassions where foreign law must be applied in American courts. It's unfortunate that our sorry excuses for journalists have been unable to convey this fact to the public, and equally unfortunate that certain elected officials have exploited the fact that the public by and large does not know how our legal system works.

I'm interested. PLease cite some cases where SCOTUS applied foreign law.
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D L X
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 2:43 am

Quoting fr8mech (Reply 35):
PLease cite some cases where SCOTUS applied foreign law.

Any case involving treaties. So, a whole chunk of patent law, for instance.

Also, there are plenty of cases where some of the events occurred in foreign land that require an understanding of the law of that land.

Then there are contracts where the parties have specified that they would be bound by the law of a particular venue, which might be a foreign country. A whole lot of admiralty law applies the law of Britain in these contracts.
 
474218
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 2:45 am

Quoting fr8mech (Reply 35):
Our legislatures are expected to provide us Constitutional laws. They fail miserably at that. Our Executive branch electees are expected to enforce laws in a Constitutional manner.

Then you should support the Republicans "Pledge to America" which will "Require every bill contain a citation of Constitutional authority".
 
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fr8mech
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 3:21 am

Quoting D L X (Reply 36):
Any case involving treaties. So, a whole chunk of patent law, for instance.
Quoting D L X (Reply 36):
Also, there are plenty of cases where some of the events occurred in foreign land that require an understanding of the law of that land.

An understanding of the law, maybe. But can you cite a case where The Court has used foreign law to supersede the law of The United States. Or, a case were a US law was modified by foreign law. Treaties and such really do not count. They are ratified by The Senate and are Constitutional. I'm not sure that The Court could actually void a legally executed treaty, could they?

Quoting 474218 (Reply 37):
Then you should support the Republicans "Pledge to America" which will "Require every bill contain a citation of Constitutional authority".

I do, though I feel the provision is largely empty. It's rather easy to apply

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

to just about anything Congress writes.

A feel good provision in an otherwise decent document.
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 5:45 am

Quoting fr8mech (Reply 35):
Or, the new judge that reviewed the case had the same agenda. This is judicial activism.

Generally, judicial activism = decisions you don't agree with.

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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 11:27 am

Quoting fr8mech (Reply 38):
But can you cite a case where The Court has used foreign law to supersede the law of The United States.

No, and that belies the misunderstanding that the public has about where the courts have used foreign law. There are no cases where the court has used foreign law to supersede American law, except in the obvious case where the contract said the parties would be bound by the laws of some other venue, in which it is American law to apply the law of the contract.

The belief that courts are applying foreign law at the exclusion of American law is the spin put on the case by politicians who intend to mislead.
 
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 3:42 pm

Quoting Mir (Reply 39):
Generally, judicial activism = decisions you don't agree with.

Honestly, I would go one step farther and say that it's more than just generally. I would say that 99 times out of 100, the cries of "judicial activism" are due to decisions with which those crying foul do not agree.
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 7:58 pm

Quoting OA412 (Reply 41):
Honestly, I would go one step farther and say that it's more than just generally. I would say that 99 times out of 100, the cries of "judicial activism" are due to decisions with which those crying foul do not agree.

No, I believe judicial activism is when the court rules contrary to the Constitution based on their beliefs or feelings.
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D L X
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 8:26 pm

Quoting fr8mech (Reply 42):
No, I believe judicial activism is when the court rules contrary to the Constitution based on their beliefs or feelings.

And as I've been trying to say, "contrary to the Constitution" is synonymous with "didn't give me the result I wanted" because everyone's view of what is Constitutional is simply whatever they wanted it to be. Silly things like how people think the second amendment applies to the states. (It didn't until 2010.) But since the righties think that it did (without any basis for their belief), any ruling to the contrary was decried as judicial activism.

Just one of millions of examples.
 
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 11:30 pm

Quoting D L X (Reply 43):
Silly things

Well you certainly cemented your own thesis with your own example.   
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RE: US Judges Being Bullied By Politicians

Mon Sep 27, 2010 11:58 pm

Quoting D L X (Reply 43):
And as I've been trying to say, "contrary to the Constitution" is synonymous with "didn't give me the result I wanted" because everyone's view of what is Constitutional is simply whatever they wanted it to be

See, here is where you are mistaken. I felt the Kelo decision was wrong. I did not think it was activism, I just think The Court went too far in expanding the definition of eminent domain. It was just wrong.

There are probably hundreds examples of the same thought process, on my part. Not quite the millions you suggest.

Quoting dxing (Reply 44):
Well you certainly cemented your own thesis with your own example.

  
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RE: US Judges Being Bullied By Politicians

Tue Sep 28, 2010 12:33 am

Quoting dxing (Reply 44):
Well you certainly cemented your own thesis with your own example.

I speaketh the troof! The Founders would be rolling over in their graves if they knew that the Court had taken away the right of the state to determine its armament laws.

Quoting fr8mech (Reply 45):
See, here is where you are mistaken. I felt the Kelo decision was wrong. I did not think it was activism

You're on my RR list because you aren't one of the marauding hordes that think anytime something happens they don't agree with, it was judicial activism.

My comment was not meant to say that 100% of the cries of judicial activism are unwarranted, but rather 99% are of this category.
 
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RE: US Judges Being Bullied By Politicians

Tue Sep 28, 2010 12:48 am

Quoting D L X (Reply 46):
I speaketh the troof! The Founders would be rolling over in their graves if they knew that the Court had taken away the right of the state to determine its armament laws.

But, is it judicial activism to incorporate the amendment when the others around it have already been incorporated? Or was it judicial activism when other courts refused to do the same? To tell you the truth, without a little research, I couldn't tell you when a Second Amendment challenge went to The Court before Heller.

Quoting D L X (Reply 46):
I speaketh the troof! The Founders would be rolling over in their graves if they knew that the Court had taken away the right of the state to determine its armament laws.

I don't want this to become a 2A thread, but I believe you may be correct, about the States' rights issue. But, the argument does go that the Federal government has been tromping around this particular States' right for decades, so The Court decided to incorporate it. Cleans things up a little.
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RE: US Judges Being Bullied By Politicians

Tue Sep 28, 2010 2:38 am

Quoting fr8mech (Reply 38):
I'm not sure that The Court could actually void a legally executed treaty, could they?

They absolutely could, if it violated the Constitution. The Constitution is the supreme law of the land, with no exceptions. Thus, if Congress entered into a treaty with a foreign country allowing the foreign country to billet its troops in American homes in peacetime, it would be pre-empted by the Third Amendment. That's a deliberately ridiculous example, used for the purpose of showing why the Constitution MUST pre-empt treaties. A more real-world one would be if Congress entered into a trade treaty with another country that abridged the free speech rights of American companies in some way. Again, out under the First Amendment.

Treaties are exactly on par with federal statutes; thus, if a treaty and a statute irreconcilably conflict, the later in time rules. Courts bend over backwards to avoid such conflicts, but sometimes they happen anyway. Therefore, by just following the normal hierarchy, treaties also pre-empt federal regulations, state statutes, etc. under normal pre-emption principles.

Quoting fr8mech (Reply 38):
A feel good provision in an otherwise decent document.

Which is exactly why it's not a valid citation. I/8/18 is simply a statement of Congress' ability to implement tangential statutes, not a grant of power in itself. For example, on the bar exam, any answer citing it as the source of authority is automatically wrong. You can use necessary and proper, but it needs to spring off an express grant (usually interstate commerce, the breadth of which is truly shocking to most non-lawyers).

Quoting fr8mech (Reply 35):
I'm interested. PLease cite some cases where SCOTUS applied foreign law.

Foreign law is not "applied" in the US, because it's not binding authority. However, there are some situations in which foreign law (as in, the domestic law of a foreign state, as distinct from international law, such as treaties) must be applied. One example would be a case where a state court has territorial jurisdiction, but its choice of law statutes mandate the use of foreign law. This happens between US states very often - for example, a Virginia state court applying Maryland law to a contract with a reasonable choice-of-law clause stating Maryland law. It can happen in almost any area of law. For foreign-policy and competence reasons, courts will sometimes decline to hear the case at all rather than apply foreign law; this is called forum non conveniens.

The final major one that comes to me off the top of my head is the act of state doctrine, under which American courts refuse to pass judgment on the political actions of foreign governments done within their own borders. While the American court doesn't actually apply foreign law, the effect is as if it did. That is, the foreign action (and thus law) dictates the result in a U.S. court. There are numerous Supreme Court cites for this - off the top of my head, Oetjen v. Ricaud and Banco National de Cuba v. Sabbatino are two of the foundation ones. Lower courts apply it regularly as well - the Southern District of Texas used it to toss a suit (essentially, against OPEC challenging sovereign oil productions decisions) earlier this year.
 
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RE: US Judges Being Bullied By Politicians

Tue Sep 28, 2010 8:05 am

Quoting lowrider (Reply 1):
Perhaps you have a better one?

Yes. Article III style everywhere.

Quoting DocLightning (Reply 9):
We can't have every judge be appointed for life. That's not checks and balances.

Actually, that IS checks and balances. Without political pressure, judges are far more independent.

Quoting LTU932 (Reply 12):

I do wonder why the nomination of federal/appeals court judges and Supreme Court justices is so heavily politicised in the US, especially SCOTUS judges.

Because that is the time in the process where it should be political. The whole PAS confirmation process is meant to reflect the will of the people and act as a check on the judiciary, while lifetime appointments keeps politics out of it from then on.

Quoting LTU932 (Reply 12):

Why not have a bipartisan commision, or an independent panel of the judge's peers decide on who gets nominated before taking the process to the senate for confirmation?

1) Because the Constitution already enumerates the procedure.

2) Because such a process would not fit within a tripartite, checks and balances Federal Democratic Republic.

Quoting 474218 (Reply 16):

There are at least two Supreme Court Judges that have publicly stated that they think European law should by applied when considering cases in front of the US Supreme Court?

Sadly, as D L X said, relying on the media and extremist pundits does not do those decisions any justice.

Quoting Yellowstone (Reply 25):
Those good ideas may be found in all sorts of places - the Constitution, the writings of the Founders, prior Supreme Court decisions, lower court decisions, scholarly writings, or, yes, foreign court decisions. Rejecting a good idea just because it didn't originate in the US is silly. Heck, all the Enlightenment ideals on which our government is based are products of Europe

Not to mention that the vast majority of criminal law in this country is still heavily based on law created by judges before the Puritans hopped on the Mayflower.

Quoting 474218 (Reply 28):

I said they think European law "should" be applied. Not that "is" being applied.

I think that demonstrates a clear misunderstanding of just what the decisions you are holding up as exemplars say.

Quoting D L X (Reply 31):
VOting for judges is an abhorrent practice that should be ended immediately. We are very fortunate that Federal judges have never been subjected to votes.

Absolutely.

Quoting 474218 (Reply 37):

Then you should support the Republicans "Pledge to America" which will "Require every bill contain a citation of Constitutional authority".

That is nothing but garbage rhetoric. You want to know the "citation of Constitutional authority?" Article I. There you go.

Quoting fr8mech (Reply 45):
I felt the Kelo decision was wrong.

Lots of people did. It was the "moderates" who liked Kelo.

Quoting fr8mech (Reply 45):
I just think The Court went too far in expanding the definition of eminent domain. It was just wrong.

It didn't expand the definition, it expanded the acceptable application.
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