Tuesday, July 14, 2009

Discussing the Role of Judges & Judging

The Bottom Line (Up here at the top....)

Judging is far too important to be considered a mere technical process - many areas of our legal system requires that judges exercise empathy as part of the process of judging.

As liberal, I often disagree with Republican views.

But I totally agree with their current view that the Sotomayor hearings give us an opportunity to discuss our legal system and the role of judges.

But, in advancing their ideas and views, the Republicans have inadvertently done themselves and our legal system, and our historic self-governance a significant injustice: the idea that judges are mere technicians who apply a straightforward set of written procedures in a limited arena of endeavor without any deep consideration.

The arena of the court and of judging is the wide open arena of human activities and interactions: endlessly complex and often subtle. And the rules (many of which have been, over the centuries through our present age, created by judges themselves - and many of which have been written by legislatures and administrative agencies) are far from complete or of certain application.

Judging is extremely important business: for the country, for the litigants in court, and for future personal and business decision making: "If I/we do such and such, what are the legal risks?"

We don't call the folks in the black robes technicians, we call them judges. We call on them to exercise thoughtful consideration of (i) the facts before them in context, (ii) the laws and details of those laws which might or might not apply to the given situation, and (iii) how their decisions, their legal judgments, will affect future activities of people in similar situations.

If judging were merely a matter of taking some fixed set of "blackletter" laws and finding those which apply, there would be no litigation: why spend the money if the outcome is certain?

No one is served by the view that judging is no more than calling balls and strikes within the limited confines of the narrowly proscribed universe of baseball.

Even in that narrow universe, however, one call that umpires sometimes have to make is when the hitter is struck by the pitch: "Was it intentional? What was the pitcher thinking?"

There are many legal situations where, as a matter of law, judges need to determine the intent of the parties: In the recently decided Ricci case, the applicable law called for the courts to determine if there was "discriminatory intent" In the words of Justice Kennedy, who wrote the opinion: "Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”)."

Judges also sometimes look to the intent of the legislature: "The rule petitioners offer would run counter to what we have recognized as Congress’s intent ...."Also in Ricci.

And almost all of our criminal laws require that the accused intent be established.

How does one determine intent? In part, one looks at the facts and draws logical conclusions. But in interpreting those facts, drawing those conclusions, one has to exercise one's empathy to look inside the actor's thoughts.

In search and seizure cases, as a matter of law, often the determination turns on the expectations of privacy people hold: in a student drug testing case, Pottawatomie County, V. Earls, 536 U.S. 822 (2002), Justice Thomas observed "We therefore conclude that the students affected by this Policy have a limited expectation of privacy..

How does a judge determine those expectations? How did Thomas and his concurring fellow justices determine the expectations of privacy of the affected students?

They looked at the facts. In an earlier case involving student athletes, the Court had found that athletes have a lower expectation of privacy as evidenced by locker room communal states of undress and showering. In Earls, Justice Thomas et al determined that non-athletes involved in extra-curricular activities also have a reduced expectation of privacy. How did those judges make that determination? Again, in part, but as a necessary part of the process, they had to exercise their powers of empathy.

The courts play an extremely important role in our society. By the very nature of what they do, roughly, 50% of the people who appear before them will conclude they did not receive justice, that they got screwed. Plain old human nature at work.

With that uphill battle of the courts and legal system to retain the respect of citizens, characterizations which diminish the role and the needed talents of judges are counterproductive and undermine a central and critical pillar of our democracy.

Throughout the centuries in our legal history, there have been periods where the "legal dance step" became all important: if a litigant did not get the steps exactly right, he didn't eve get a chance to plead his case. And justice was not served. Such periods have always been corrected because, after all, justice is the goal.

If our judges are restricted to calling balls and strikes, making sure the dance steps are properly performed, we could again enter a period of justice denied.

Justice and judgment require a range of skills and abilities, including exercising a degree of empathy - the ability to see inside another's head and heart to achieve justice.

Mischaracterizing the important qualities that judges need to exercise to do justice will end up denying justice at times.

Sunday, July 12, 2009

"Right Thoughts, Right Thinking"

Palin: "I will go around the country on behalf of candidates who believe in the right things, regardless of their party label or affiliation," Palin said over lunch in her downtown office. "People are so tired of the partisan stuff.

I ask, isn't "the partisan stuff" founded on on the idea that there is just one set of "right things" to believe in, and that other ideas are necessarily wrong?

FWIW: Religious orthodoxy is defined as "Right Thoughts, Right Thinking"

Sunday, July 5, 2009

A Lesson-A-Day (Thank you, Dewey Dunlop...)

The Bottom Line - - (Right Here Up Top)

English teachers must be in a fury. A real life Greek Tragedy unfolds in the center ring and the kids are off for the summer. Dang it!

Sarah Palin, the hero, brought down not by circumstance or accident, but by her own internal infernal machine.

When I was in school, it was tough to really get into reading those tragedies in English class. Let's face it, school assigned work is rarely undertaken with joy.

All that Shakespeare, all those Greek tragedies. Darned good thing I remembered a few things from the Cliff Notes for the final.

Tragedy isn't just something bad happening to someone. The "someone" has to be "big" (I think) and the bad stuff has to be 'self-inflicted' - often by hubris (a point on my SAT vocab section) or some other character flaw in Mr or Ms Big.

I've never known a beauty contest contestant. I speculate that some, at least, have a higher need for affirmation than most folks.

One, at least, seems to have a really thin skin.

Put that together with political career and a willingness to step into the klieg lights of a presidential campaign.

Voila - - - derived from tragōidiā (τραγῳδία), contracted from trag(o)-aoidiā, we have Sarah Palin's "goat song." [Thank you wikipedia....]

Perhaps she has some Greek origin advisors on her staff: Aeschylus, Sophocles, and Euripides?

Who says you can't laugh at a good tragedy?

"Update" from the recent past:
"[My running times] prove[s] I have the endurance within me to at least gut it out and that is something. If you ever talk to my old coaches, they'd tell you, too. What I lacked in physical strength or skill I made up for in determination and endurance." [Emphasis added]


Palin is a Doo-doo Head!

The Bottom Line (Up Here At The Top)
Sarah Palin is a Doo-doo head
So sue me Sarah.

Let's see. Palin unexpectedly resigned her governorship. With no specific reasons given.

A lot of speculation followed.

Some of that speculation is negative! (Go figure....)

Palin's lawyer announces they're looking into going after bloggers "who re-publish the defamation, such as ..., that the Palins will not allow them to propagate defamatory material without answering to this in a court of law.”

I believe the "defamatory material" was a report that there are rumors that she is being investigated for some actions as mayor of Wasilla.

Is this really true: Palin is maybe being investigated?

Speaking of reality, my blog hasn't exactly blazed a bright white light across the American consciousness.


Palin is a Doo-doo head! And rumors are that maybe she's being investigated

Go ahead and sue me.


Saturday, July 4, 2009

Hate Crimes Senate 909

I've been getting feverish communications from our friends on the right about the "Matthew Shepard Hate Crimes Prevention Act.” The range of misinformation is staggering.

"The Bottom Line" [here up top....]"
The "Family Research Center" pushes the most common misunderstanding: the bill "establishes ,thought crimes.'"
Simply put, our criminal law has always required an "evil mind" ('mens rea') as one element of a criminal offense, and the nastier the thought, the higher the penalty - everyone has heard of "first degree" and second degree" murder, and the main distinction is the actors state of mind.
This Bill (Senate Bill 909 http://thomas.loc.gov/cgi-bin/query/z?c111:S.909:) Simply adds another nasty state of mind as an element to establish that a crime has occurred.

What to do: The Family Research Center advocates "flooding the offices of three Committee Democrats whose votes could make all the difference--Arkansas's Blanche Lincoln, phone: 202-224-4843; Arkansas's Mark Pryor, phone: 202-224-2353; and Alaska's Mark Begich, phone: 202-224-3004."

Feel free to add your views to "the flood."
You can call, as above, or email at
Blanche Lincoln: http://lincoln.senate.gov/contact/index.cfm
Mark Prior: http://pryor.senate.gov/contact/
Mark Begich: http://begich.senate.gov/public/index.cfm?p=EmailSenator