The War on the Judiciary
The right’s war on the courts continues to heat up. In addition to the various court-stripping bills in front of Congress and Sen. Cornyn warning them about serial rapists killing them for failing to do what Congress wants, we now have this threat from Rep. Steve King of Iowa on NPR last week:
Rep. KING: Congress created all of the courts; all the federal courts, Congress grants them jurisdiction. So whatever Congress gives, they can take away. If we wanted to abolish the 9th Circuit, for example, we could do that. Now I’m not going to say I think that’s the prudent thing to do. We could also cut the budget. We could prohibit the Justice Department from enforcing the orders of the court.ELLIOTT: Cut the budgets for the court?
Rep. KING: We can do that. If they’re not going to listen to us any other way – if we pass a law, a specific law, and they reject that law, then the authority that they will begin to understand is when their budget starts to dry up, we’ll get their attention. That’s not my preferred method. My preferred method is to have them respect the Constitution and the law. But they are counterproductive to this country and if we’re going to preserve our Constitution, we must get them in line.
This is rapidly turning into something out a mafia movie, isn’t it? You can almost picture them speaking in a Brooklyn accent: I’m not sayin’ this is gonna happen or nuttin’. I’m just sayin’…dat’s a nice lookin’ judge you got there. It’d be a shame if he was to fall on a knife 11 or 12 times. Capiche? The context of these comments, of course, is the claim that the Federal courts ignored the “clear intent” of Congress that they issue an immediate stay before hearing the case. But this claim is false for several reasons.
First, the law they passed doesn’t actually say that. The original version contained explicit language that would have required the court to issue a stay pending a de novo review, but that language was taken out. Second, those who consider themselves textualists or originalists are generally opposed to looking at the “legislative intent” of a law. Justice Scalia, for instance, has written widely against this notion, saying, “It is the law that governs, not the intent of the lawgiver.” Third, even if one does agree that one should look at the legislative intent, it was certainly not clear in this case. Look at this passage from the transcript of debate on the bill in the Senate:
Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court “shall” issue a stay of State court proceedings pending determination of the federal case. I was opposed to that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word “shall” in section 5 be changed to “may.” The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate. Does the majority leader share my understanding of the bill?Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its
determination. Nevertheless, this bill does not change current law under which a stay is discretionary.
So even if one were to look at the legislative intent in this case, you have the Senate leader and the chief sponsor of the bill saying that while Congress assumed the courts would issue a stay, there is nothing in the bill requiring it and it did not change the existing discretionary standard by which it is determined whether to issue one. So here we have Congressional social conservatives, the same people who scream about activist judges, complaining that judges in this case weren’t activist enough because they actually looked at the text of the bill and applied existing precedent consistently. And for that horrible crime of not being as hypocritical as Congress is, let’s threaten their funding. The whole thing is quite irrational, and is precisely why the founding fathers mandated an independent federal judiciary with lifetime tenure, to insulate them from such irrational political judgements. Hamilton wrote in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
And yet we have the most prominent member of the Republican leadership saying that judges “need to be intimidated” and threatening retaliation upon them. We have another Congressman threatening not only to cut their funding but to have the executive branch refuse to enforce lawful judicial orders. Do these demagogues really have any idea what kind of constitutional crisis they are flirting with? Do they even care?
41 Responses to “The War on the Judiciary”
When they impeached Clinton, I thought they were toying with the foundations of our republic for frivolous purposes. Now that they’re making noises like they want to dick around with our independent judiciary; I’m starting to think that maybe messing with the foundations of our republic is more intentional than frivolous.
Let’s inject a bit of logic into the discussion. Congress passed and Bush signed legislation specifying a new review of the Schiavo case. The new review would be moot if Ms. Schiavo died before the court could consider it, which was going to happen without food and water. To satisfy the law as written, the court would have had to issue a stay of the feeding tube removal. Instead, they defied the law and let Ms. Schiavo die.
Now how do you suppose the Congress can be anything but unhappy with the judiciary?
The problem here is that the law itself was invalid. Congress can’t make laws that apply to only one person.
I do think it’s hyperbole to say that the right is trying to bully the courts, at least in this particular instance. The Republicans here were doing what they do best: grandstanding. They’re big on talk, but the laws don’t even mandate anything. Just throwing the evangelical base a bone, and saying “we’re still your dawgs”.
Congress can’t make laws that apply to only one person.
Oh? That’s news to me. Please cite relevant authority.
A law, by definition, is something that applies to everyone. Congress is in the business of making laws, so the laws made must apply to everyone. Court cases are where specific applications to individual situations are addressed. So, here Congress is really trying to pursue its own form of judicial activism.
Maybe I was wrong about the hyperbole.
Joshua, it’s the “equal protecton” clause of the 14th Amendment to the Constitution.
Your own inherant definition won’t suffice, especially given the countless previous Congressional laws passed concerning one person. (The Equal Protection Clause is irrelevant here, btw.)
And for what it’s worth, I offer no opinion on the wisdom in passing this law. I take issue only with your erroneous assertion that laws can’t apply to just one person.
“Let’s inject a bit of logic into the discussion.” Yes, let’s. If Congress had intended to require the District Court to enter a preliminary injunction, they could have written the law to say, “the District Court shall enter a preliminary injunction requiring that Ms. Schiavo’s feeding tube be reinserted.” Or hell, they could’ve just written a law that says, “[Medical Provider X] shall reinsert Ms. Schiavo’s feeding tube.”
Apparently Bill Frist, Republican leader of the Senate understood this since he said “Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its
determination. Nevertheless, this bill does not change current law under which a stay is discretionary.”
So, Congress consciously passed up an option to mandate that the federal judge issue a preliminary injunction. That being the case, the federal judge was obliged to use traditional standards of deciding whether to enter an injunction. Those standards ask 1) whether the person asking for the injunction stands to sustain irreversible harm if the injunction isn’t issued (that would be a big ‘yes’ in the case of Ms. Schiavo); and 2) whether the person asking for an injunction demonstrates a substantial likelihood of success on the merits.
The ‘merits’ in this case was the question of whether any of Ms. Schiavo’s *federal* rights had been violated. There just weren’t any federal claims for which Schiavo’s parents had a prayer of success. That’s why the federal judge could not issue the injunction.
Actually, to “satisfy the law as written”, all that a federal judge had to do was hear the case and make sure that Mrs. Schiavo’s rights had not been violated. There was nothing in the law which required a stay, and the judge simply stated that now that it was within his authority, he judged that Mrs. Schiavo’s rights had not been violated, and there was no reason to issue a stay.
The federal appeals court judges agreed with that decision. The Supreme Court that ruled 5-4 that George W. Bush should be the President also agreed with that decision.
RWing Nut wrote:
Always a good idea, but I thought I had already done so.
Your description of the law that was passed is too vague to be accurate. The law did not “specify a new review”, it did three specific things: A) gave the Federal courts, specifically the US District Court for the Middle District of Florida, jurisdiction to hear the case; B) Gave the Schindlers standing to file the case; and C) ordered the court, if such a case was filed, not to consider any state rulings in the case. But it expressly did not mandate a stay of the existing court order. Indeed, it specifically mandated that a stay be granted “After a determination of the merits of a suit brought under this Act”, which means it would fall under the existing precedent regarding when you issue a stay of an order. At a minimum, that means that the plaintiffs had to convince the judge that they had a reasonable chance of winning the case in order to get a stay. The law not only did not specify a different standard for deciding the question of a stay pending trial, it contained language that clearly accepted the pre-existing standards for such a ruling. So the courts didn’t defy Congress, they did what Congress, whether intentionally or unintentionally, told them to do – decide whether to issue a stay based upon the merits of the case.
Now, Congress can be upset about that all it wants. But when it begins to threaten retaliation, particularly the kind of retaliation – like ordering the justice department to ignore lawful court orders – that threatens a constitutional crisis, it’s time for people to reject such demagoguery and defend the system against their arrogance and irrationality.
I totally agree with you on this one Ed, but I think it’s important to specify even further. The Congress did not give the Middle District of Florida authority to hear the entire case de novo, it only gave authority to hear federal claims de novo. In other words, the state court’s rulings on state law issues couldn’t be ignored by the federal court.
“A law, by definition, is something that applies to everyone.”
This is not true; so-called private bills get passed all the time as part of the ordinary business of Congress. Most often they confer citizenship or residence status in immigration cases, but they can be put to other purposes as well. The real question is whether second-guessing and undermining the authority of the Florida judiciary is a legitimate use of such a private bill. I am inclined to think it is not.
The fact remains that the court didn’t bother to do a review of the case and simply let her die. This is the height of judicial arrogance. There is precedence for granting stays in these situations. Unfortuantely we are close to the situation Jefferson describes
“”The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
–Thomas Jefferson to Abigail Adams, 1804
Time to rein in the “despotic branch”.
RWing Nut, at least your chosen name is honest, unlike your arguments. The courts did look at the case, just not how you wanted and without reaching the decision you wanted. That’s all it comes down to. You don’t believe in 200 years of American history and jurisprudence.
RWing Nut wrote:
But only if there is a reasonable chance of the plaintiff winning the case. In this case, there was simply no basis for Federal intervention. There was no Federal constitutional or statutory provision upon which one could build a legal claim. And that was clear even to consistently pro-life judges like Birch and Scalia.
Perhaps you didn’t notice, but the situation Jefferson is talking about is judicial review itself. We’ve had judicial review since at least 1814, and the principle goes back much further. As much as I admire Jefferson, he was wrong on this one and he was in agreement with those who opposed the passage of the Constitution rather than those who wrote it. Hamilton wrote in Federalist 78:
After 191 years of judicial review, there is little doubt he is right. If the courts are not empowered to declare unconstitutional legislation void, then what other means do you have of doing so? Or do we just have to put up with unconstitutional acts?
Actually, the Constitution expressly forbids legislation by Congress that is directed to an individual–these are called “bills of attainder” and they are explicitly forbidden in the text of the Constitution.
“The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”
“The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply – trial by legislature.” U.S. v. Brown, 381 U.S. 437, 440 (1965).
“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.”
In the case of the most recent legislation, a case is being made that Mrs. Schiavo was, in effect, being singled out to have her civil rights taken from her and that she was thus being punished without benefit of trial.
Actually, the Constitution expressly forbids legislation by Congress that is directed to an individual–these are called “bills of attainder” and they are explicitly forbidden in the text of the Constitution.
You incorrectly describe a bill of attainder. The key to Schiavo’s law is that, unlike in a bill of attainder, no one is being convicted or punished, and no ruling is even being changed. It can be likened to a basketball court, where Terri’s parents have missed a shot on the goal. Congress is not now counting the shot or adding points. It’s simply building another goal for the family to shoot for. The bill just creates a cause of action in federal courts, which may ultimately come to the same conclusion the state courts did.
No, you are not listening to the legal argument here…that she was being singled out for punishment in not having her civil rights honored. In effect, any delay by Congress, in the form of a stay of the tube’s removal, was a de facto punishment for Mrs. Schiavo, according to this line of reasoning. This argument, whether you agree with it or not, is entirely consistent with the scope of bills of attainder.
It’s interesting to not that there were two opposing sides arguing precisely the same thing…that she was being denied her civil rights. In the one case, the right to choose to decline further use of a feeding tube; in the other to deny further use of the feeding tube itself.
Which federal civil right was not honored?
No, you are not listening to the legal argument here…that she was being singled out for punishment in not having her civil rights honored.
That is in indirect effect, and one based on your interpretation – an interpretation not shared by any court who has examined the case. And even if it did implicate a civil right, it would still not be a bill of attainder. That isn’t the makeup of a bill of attainder.
Oh, Josh, why bother with things like “definitions” (whatever those are!) in this crazy, mixed-up, post-modern world?
Having strict meanings that you adhere to for terms is so 20th century!
“That is in indirect effect, and one based on your interpretation – an interpretation not shared by any court who has examined the case.”
That I know of, no court has yet ruled on the constitutional issue whatsoever in this case, nor will they now. It doesn’t seem that the special concurrence by 11th U.S. Circuit Court of Appeals Judge Birch detailed his reasons for calling the law extra-constitutional. It would be nice to know.
As to the makeup of a bill of attainder and its lack-of-relatedness to this case, that is one thing a judgement would presumably have established.
I don’t believe the law Congress passed qualifies as a bill of attainder. I’ve seen no legal scholar make that argument. What makes it unconstitutional is that it prescribes a rule of decision for the Federal courts. It not only gives them jurisdiction to hear the case, it forces a particular type of review on them, which is not within Congressional authority to do.
For the love of god, there is noting to decide about the “bill of attainder question” other than what it is that prevents you from realizing that the Schiavo bill is abjectly not one! A bill of attainder is something very specific, and it is not any law that applies to a single person! (See, eg, the Wikipedia entry.) You may as well make an argument that “a judgement would presumably have established” whether or not the law passed by congress was, in fact, a Volkswagen Beetle or a warm beer – either would make as much sense.
Just to play Devil’s Advocate for a moment, mainly since I want to hear the legal justification for why this reasoning is wrong.
According to the laws of the State of Florida, in the event of incapacitation without a living will, the decision regarding life support should fall to the spouse, not the family, and the family therefore is not given the status to petition the courts with regards to those decisions.
In the bill which Congress passed, the family by name was given the right to petition the courts. In effect, the right to be the sole arbiter of Mrs. Schiavo’s fate was, by act of Congress, removed from Mr. Schiavo and given to a larger group of people.
In this reading, this is a maneuver which specifically denies a right to Mr. Schiavo as it is currently written in the law. So if a Bill of Attainder is a bill that punishes a person without the benefit of a trial, and Mr. Schiavo had a right removed from him by that law, how does that not qualify as a bill of attainder?
The Supreme Court that ruled 5-4 that George W. Bush should be the President
Off-topic, but I can’t let that little bit of left-wing mythology go unchallenged. It was the voters (well, actually the electoral college, but basically the voters) who made Bush the President. SCOTUS ruled 5-4 to stay the manual recount, then later ruled 7-2 to overturn the Florida supreme court and basically declare the election was over. Four justices still thought other types of recounts might be acceptable.
Source: http://uselectionatlas.org/INFORMATION/ARTICLES/pe2000timeline.php
Bush had more votes when the recounting was halted, and an exhaustive study done after the fact showed that Bush indeed won under all but one method of recounting votes.
Congress vs. the Courts
It would be a crisis if the founders left Congress no way to rein in the judiciary. Since they did leave us a few tools, this would be better characterized as a constitutional exercise.
Balta wrote:
I don’t believe this is true. My understanding of Florida law is that in the absence of a written directive, the court may consider testimony of oral statements of the patient’s wishes that may have been made in advance, but can only make the decision to withdraw life-extending procedures if the evidence is “clear and convincing” that the patient would have wanted them to be withdrawn. The parents did have status to challenge that decision, and their case was tried, but the appeals court upheld the trial court and ruled that the evidence met that standard. If I recall correctly, the legal standard for the state of Florida was set down in the Browning decision. So it’s not a question of who gets to decide what will happen, it’s a question of the court determining what the patient wanted.
Here is the statute that governs such decisions. You will notice a couple of things. First, it recognizes several types of advance directives, including both the ability to name a surrogate to make decisions should you be incapacitated and the ability to make decisions on different types of procedures in advance:
Second, as the quote above shows, the law explicitly recognizes oral statements as legitimate. Third, it gives standing not only to family, but to others, to seek a judicial ruling on whether a health care surrogate is doing the right thing under the standards of the statute:
So the parents did have legal standing to challenge the court’s decision, since the court was acting as surrogate in this case. But the appeals court upheld the court’s decision and concluded that it met the “clear and convincing” standard that was laid out in Browning.
“an exhaustive study done after the fact showed that Bush indeed won under all but one method of recounting votes.”
And I can’t let that one go unchallenged. (please note; I’m not going to get dragged into a debate on this topic; this will be my only post on this matter)
“Bush did not win “every single vote recount,” according to a study conducted by the University of Chicago’s National Opinion Research Center (NORC), as The Washington Post reported on November 12, 2001. The NORC study was organized by a consortium of news organizations that included both the Post and The Wall Street Journal. The researchers “examined all ballots that were initially rejected by voting machines” and then applied “different standards for determining voter intent and tallied results based on several scenarios that sought to approximate conditions on the ground in Florida.”
The results: former Vice President Al Gore, not George W. Bush, emerged the winner under four scenarios.
According to the Post, when the recount tallied ballots in which “at least one corner of a chad was detached from punch-card ballots,” Gore won Florida by 60 votes. “[U]nder the least-restrictive standard for interpreting voter intent, which counted all dimpled chads and any discernible optical mark (which in the case of optical ballots Florida’s new election law now requires to be counted as votes),” the Post reported, “Gore had 107 more votes.” One recount with a “more restrictive interpretation of what constitutes a valid mark on optical scan ballots” — and in which chads had to be “fully punched” — saw Gore win by 115 votes. And a recount that replicated “the standards established by each of the counties in their recounts” gave Gore 171 more votes than Bush.”
And secondly…thanks Ed, that makes a fair amount more sense. So the court made the decision that being removed was within her wishes based on tesimony about previous statements, and Congress then gave the family the ability to petition federal courts to consider the case, which they did not have before.
The Constitution does in fact empower the congress to regulate every aspect of the operations of the federal courts with a few exceptions: cases over which the Constitution grants SCOTUS jurisdiction, the daily operations of SCOTUS itself, life tenure of federal judges, the compensation of federal judges.
The increasing arrogance of the federal judiciary warrants a thorough review of the way the federal judiciary is structured.
OK, this is weird. From the WaPo via the Media Matters page Balta links:
“And a recount that replicated “the standards established by each of the counties in their recounts” gave Gore 171 more votes than Bush.”
From this Palm Beach Post article:
“Applying standards the counties themselves say they would have used, consortium found Gore would have gained just 44 votes more than Bush. That would have left Bush the victor by 493.”
What the heck? They can’t both be right. Frustratingly, the NORC web site doesn’t seem to actually present the data. Although, my recollection is also reinforced by this CNN article of a different media recount.
Charles Williams writes:
It’s not clear what you mean hear by “every aspect of the operations of the federal courts”. They are empowered to ordain and establish the courts below the Supreme Court, which essentially means that they get to create new courts and judicial districts to adapt to population flow, workload, and so forth. There is a good deal of talk currently of splitting the 9th Circuit for that very reason. The caselog of the 9th circuit is enormous, as it serves 9 states with over 50 million citizens. But that surely does not give Congress the power to disband a judicial district that issues opinions it doesn’t like. So what exactly may Congress do that they do not already do for practical reasons?
By what standard is the federal judiciary any more or less “arrogant” than the Congress or the White House? How do you even begin to define “arrogance” in that context? If someone were to say that the increasing “arrogance” of the White House warrants an investigation, would that seem a rational argument to you in the absence of a specific charge of them doing something unlawful or unconstitutional? And what does the “way the federal judiciary is structured” have to do with “arrogance”? The structure merely refers to how many courts and judicial districts we have to handle the caseload, and so forth. Changing the “structure” of the judiciary has nothing to do with “arrogance” that I can see. I suspect it’s just a catchphrase for getting the people you agree with to go after the people you disagree with.
From a fundamentals point-of-view, Rep. King’s comments do contain a kernal of truth – under the Consitution only SCOTUS has authority independent of Congress. In theory, I suppose, Congress could disolve every inferior court, fire the judges, and then reconstutite a new structure with new judges. Yet, the new courts would still be bound both by (a) the legal precedents already established by their predecessors and (b) determinations made by SCOTUS.
Re the constitutionality of the Schiavo statute, this depends it seems to me on how narrow or broad Congress’ actual action was. Narrowly, it is only a jurisdictional statute and I believe perfectly valid. It directed the federal court to review without regard to any prior State factfinding the case for a federal civil rights violation (which I can only guess would have to be some sort of due process or equal protection theory). Application for equitable relief (reinsertion of the feeding tube) was decided correctly on the liklihood of applicants’ chances of later success (slim to none).
Broadly understood, if thought to require the Federal court to read State law contrary to … errr… State law, Congress has no such authority in general and especially not in this case. No federal court gets to interpret State law contrary to actual State law decisions (”Erie”). And, in this case, there are collateral estoppel problems (the State law issues have been litigated to their conclusion, here, final appeal to both the Fla. and U.S. supreme courts, hence the need to find a federal right). C/E is not often thought of as a civil right but it is; I would argue that it distinguishes being the target of litigation from harrassment by litigation. In short, once you’ve really won a final determination, its over.
As to Congressional intent vs. the statute’s wording, ironically, none other than the conservative icon – Scalia – has practically scared everyone away from looking at anything other than the statutory text, which in this case is vague.
Most of you have become so enamored of the arcane legal aspects of the Schiavo case that you have missed the essence of the issue. In the absence of incontrovertible proof of her intentions and with judicial compliance, an incompetent person, never convicted of a crime, was condemned to a death under circumstances that we’d not inflict on a dumb animal. All this despite Congressional supoenas, a specific law and the family’s protests.
The judiciary can “unearth” rights to justify gay marriage, overturn the ban on late term abortions, endorse affirmative action and any number of liberal causes. But, gosh were sooo sorry that our hands are tied when it comes to even taking another look at saving T. Schiavo.
Putting on a black robe and having lifetime employment doesn’t give you unbridled power. If it’s a system of checks and balances, who checks the power of the judiciary?
I’m glad that Balta challenged the “all recounts favored Bush” meme. BTW, Eric, I am able to get to the data on NORC’s site. It is largely in html, zip, doc and txt files. The Data Analysis Working Group (the media consortion) readme states that there were 9 scenarios tested:
1. Prevailing statewide standard scenario
2. Supreme Court “simple” scenario
3. Supreme Court “complex” scenario
4. 67-county custom standards scenario
5. Two-corners-detached statewide scenario
6. “Most inclusive” statewide scenario
7. “Most restrictive” statewide scenario
8. The Gore 4-county recount strategy scenario
9. “Dimples when other dimples present” scenario
Now, here’s where I must depend on the kindness of experts–I am not in an way able to analyze the data myself. But, as Balta said, the people who are so trained concluded that under 4 of these scenarios, Gore led Bush in final counts. So, I think there is *some* credence to the idea that the Supreme Court simply “awarded” the presidency to Mr. Bush. As Balta says, it is not worth continuing to debate this, but I really have been frustrated when *intelligent*, well-meaning people have planted the “Bush won all recounts” flag over and over.
In other words, if you’d just switch to saying that Bush won the recount under 5 of 9 methods, I’d be able to nod and move on with my life. As it is, I must shake my head and move on with my life.
Isn’t the flaw here in the legal reasoning process itself? There is some tradition or law that says that no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. I think Congress wanted justice for Terri and wrote a law that did no violence to the system of justice by seeking the truth of the matter which truth might have very well NOT been in the trial records.
RWing Nut wrote:
Conservatives are forever claiming that judges who ignore the law and find a rationalization to justify the outcome in a case that they want are “activist judges” who seek to “subvert the will of the people” to establish “judicial tyranny”. I’ve been saying for years, with dozens of examples to back me up, that this is just empty rhetoric – they don’t really mean it, they’re just bothered when they disagree with the outcome. And you are proving that argument true here. But you’re doing so based upon a very shaky argument…
There is nothing “arcane” about the legal facts of this case. Florida law is quite explicit that an individual has the right to refuse medical treatment. It is also quite explicit that such advanced directives can be made verbally, and there is a single controlling precedent that gives the courts a legal standard by which to determine when such a directive has been given, the “clear and convincing” standard. The law also has safeguards in it, allowing the family or anyone who might be affected by the decision standing for an appeal to make sure that the surrogate (in this case, the court) acted correctly and within the confines of the law. All of that was done, the court made a determination that Terri herself would have wanted not to be kept alive on life support without hope of recovery, according to clear and convincing evidence. The appeals court and the state supreme court upheld that ruling multiple times, as the family filed appeal after appeal to keep it in court for 9 years.
Rarely will you find a case where the legal standards are so clear and where so much trouble has been taken to review the decision by multiple courts over such a long period of time. What is really going on here is simply that you don’t like the outcome of the case, based almost certainly on a wide range of demonstrably false claims that the family circulated in the media to garner public sympathy. And just like those infernal “liberals” you criticize, when you don’t like the outcome, you want the judges to become “activist”, to ignore the law and substitute their own wisdom for the plain meaning of the text. There are consistent conservatives on the subject, most notably Judge Birch and Judge Scalia (see his opinion in the Cruzan case), but much of the rank and file did not hesitate to abandon the principles they thought they believed in (or at least repeated without understanding) to get an outcome they liked better.
The people, of course, through the amendment process. But when it comes to adjudicating conflicts between individuals on how to apply and interpret the law in specific situations, the Constitution reserves this power explicitly to the courts and the courts alone. The people could amend that, of course, but would be foolish to do so. And bear in mind that on this issue, the public is squarely against Federal intervention by a wide margin. Even polls of Republican voters showed that they were against Congressional intervention into the case.
Anonymous wrote:
There was no jury trial in this case, as is the norm. No one was “on trial” in the case, it was a case of the invocation of a legal proceeding and a dispute between parties over the outcome of it. Such cases are not tried by jury but by a judge. And Congress simply isn’t in a position to second guess legal judgements in such cases. There are court cases where judges make rulings that some party thinks are unjust every day, from malpractice cases to custody determinations. If Congress decided that a judge had ruled incorrectly on a custody case or a divorce settlement or a patent dispute, would it be appropriate for them to intervene in all of those situations and say, “We don’t like the court’s ruling here, so we’re going to pass a law transferring the case to this other court where maybe they’ll rule differently”? Of course not. It would pretty much be the end of the Constitutional doctrine of separation of powers.
In other words, if you’d just switch to saying that Bush won the recount under 5 of 9 methods
Fine. Consider my previous remark to be amended to say “Bush won under 5 of 9 recount methods, including the methods most likely to have been used if the Supreme Court had not halted the recount.” The latter statment is found in the majority of news articles I’ve read about the consortium’s work.
I still think it’s nothing but partisan spin to say the Supreme Court “awarded” Bush the Presidency, or anything like that. They decided that letting the recounts go on would cause a Constitutional crisis (it took the consortium months to complete their work, after all), and so the vote count at the time would stand as the official count.
You could compare it to a game-winning touchdown scored in the Super Bowl as time runs out. The ruling on the field was that it was a touchdown, but the opposing coach challenges the play, saying the player was out of bounds before he broke the plane of the end zone. The refs review the replay, but they do not find sufficient evidence to overturn the ruling on the field, so the touchdown stands and that team wins the game.
Eric,
That’s a fair description…and I appreciate the response.
I think the Constitutional crisis argument, however, was a very weak argument, legally as well as politically. There is no reason whatsoever why President Bush couldn’t have been sworn in and remained president until such time as the entire legal recount process as described by Florida law had been exhausted. If President Bush remained the leader, obviously he stays in office. If otherwise, then he would simply resign and be replaced by Kerry. You may think it far-fetched–but I and millions more like me believe that this country would be much more united than it is now. The “crisis” argument, to many of us, was every bit as legally insupportable and weak as the Roe-v-Wade one was. The Supreme Court, arguing to avert a Constitutional crisis, have brought us much closer to one than we otherwise ever would have been.
Scalia is an 18th century prescriptivist (there ain’t no “privacy” in baseball! ala Black’s I don’t find the word bus in the Constitution) on the lecture circuit and a 21st century descriptivist (Constitutional crisis, new meanings of equal protection) when it suits him politically. It’s the rank hypocrisy of that attitude that has done more to damage comity, and thus, our safety as a mostly self-governed people, than any action taken or not taken in the past 30 years.