If Elena Kagan or any other nominee responded during a confirmation hearing that she would follow and enforce the law so long as she agreed with it, the nomination would end in a blink -- as it should. At every confirmation hearing assurances are extracted from nominees that they will follow the law and the Constitution and not substitute their own agenda. No one can quarrel with the concept that a judge has the duty to follow the law if it is constitutional and validly enacted. Both the oath of office and the principle of the separation of powers require it.
Which brings me to Judge Jack B. Weinstein, whom I consider to be a friend and one of the most respected judges in the country. Judge Weinstein "has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography". The defendant in the subject case was a married man with 5 children. (N.Y. Times 5/22/10) In addition to the five year minimum, he faced a sentence of 11 to 14 years. Voicing his clear disapproval of child pornography, Judge Weinstein suggests that those who view the images do not pose the same threat to children as those who produce or sell it. I suppose he could have picked a less emotional crime to take a stand, such as drug users or possessors, but the issue raised is the same. Can a judge nullify or circumvent a law that is otherwise valid and constitutional?
A judge in Nazi Germany ordered the execution of persons who cracked jokes about Hitler, of a doctor who told his patient she was courageous for having a baby in the fifth year of the war (casting aspersions on the chances of a Nazi victory) and of a lawyer who wrote a letter consoling a relative of someone condemned by the court. When charged, the judge claimed that he was following the existing law. (Time, 7/14/67) Now before anyone goes ballistic, I am not suggesting in anyway that the laws about child pornography equate in any way to what was happening in Nazi Germany; so please don't go there. The laws against child pornography and punishment for their violation are appropriate and necessary. I mention Nazi judges only to demonstrate that there are some circumstances in which a judge may have the right or even the duty to refuse to follow the law. Is an unjust, disproportionate sentence in the eyes of the judge such a moment?
Mandatory minimums and three-strike laws have been a frequent thorn to the judiciary. They often result in outrageous sentences against persons who do not deserve them. The Second Circuit recently pointed out that the sentences required by legislation for looking at children being sexually abused sometime eclipse those for actually sexually abusing a child. (N.Y. Times 5/22/10) Judge Weinstein has decided to depart from the usual practice and advise juries in certain cases as to the mandatory minimum sentence that the defendant faces. Whether or not this tactic is upheld on appeal remains to be seen, but I suspect that Judge Weinstein, whose courageous and honorable goal is fairness in sentencing, seeks public awareness of the injustice of certain sentences, and if nothing else, he has accomplished that.
We have a right as citizens to coherent decisions from our judges.
I would like those readers who would answer no to explain why they would not complain.
I've walked into the Tenth Circuit Cafe and District of Colorado Bistro, and have been served steaks crawling with maggots a dozen times. Don't you think that after a point, the health inspectors ought to be called in to shut the place down?
Through subsequent examination, you learn that the entire chain of legal Denny's routinely serves steaks replete with maggots. At what point do you conclude that none of these franchises are able to serve food fit for human consumption?
Judge Kozinski said it best: what our courts serve on a daily basis is "inedible sausage." This is a species of "judicial nullification" -- of not just a few admittedly unjust and senseless laws, but of the entire Bill of Rights. At what point should the alarm be sounded?
It is unsurprising that judicial scandals are so under-investigated, as judges are highly motivated to squelch reports of corruption -- which can hit them where they live. In connection with the Tampa, Florida scandal, which has claimed at least four judges (and may also claim whistle-blowing judge Greg Holder), Christopher Goffard reports:
"The unease extends even to judges untainted by scandal. . . . Some think [Holder’s] crusade has smeared every judge there. They blame him, as much as they blame Alvarez, for the jokes they still hear at cocktail parties, the arched eyebrow when they mention where they work. A judge? In Tampa? How interesting."
Christopher Goffard, “Judge Who Was Accuser Is Accused,†St. Petersburg Times, May 10, 2004.
Most complaints about judicial corruption are relegated to the Internet, as state enforcement mechanisms are essentially non-existent, and ‘self-enforcement schemes,’ even worse. Judicial corruption is almost certainly under-reported, says Florida State University professor Bruce Benson, on account of the institutional need to persuade the general public that the system ‘works’ -- even when it doesn’t. Bernard Cardinal Law can certainly sympathize….
In most states, there are judicial commissions that can and do remove judges for failing to follow the law.
Willful refusal to accept that shows what little credibility you have."
When you proceed from an ignorance this invincible, you squander any credibility you have, AB. Take a few hours to educate yourself (e.g., http://www.knowyourcourts.com/FedJD/FedJD.htm (extensive collection of articles and actual examples); http://www.knowyourcourts.com/JDC/JDC.htm (specific to Colorado), so that you are not proceeding as a complete and blithering idiot.
While our federal system of self-discipline is completely dysfunctional, and impeachment "is a mere scarecrow" (Jefferson), some states are better than others; Day in and day out, Michigan’s judicial blotter is the most consistently amusing. One alcoholic judge recently insisted that he hadn’t been drinking when he managed to plow his SUV into a convenience store. Another got busted for lighting up a doobie at a Rolling Stones concert. Others include a judge who reportedly referred to himself as God, another caught fixing traffic tickets in exchange for sexual favors, and another suspended for lying to investigators about her love affair with an attorney now serving life in prison for murdering his wife. [cont]
Nothing is fair or equivalent. However, that doesn't mean judges should turn a blind eye to what they perceive is incorrect. There should be various forums, including the courts, where topics are discussed and decided upon.
A. In some countries a single man makes the laws according to his own pleasure.
Q. What is such a government called?
A. A Despotism, or absolute monarchy: and the person who thus rules is a Despot, or absolute monarch.
Arthur Stansbury, Elementary Catechism On the Constitution of the United States 18-19 (Hilliard, Gray, 1828).
In modern-day America, we call him a federal judge.
Colonial judges understood and respected the limitations of their authority. Presided over by such notables as St. George Tucker, Kamper v. Hawkins, 3 Va. 19 (Va. 1793), was the state-law precursor to Marbury v. Madison. It was Judge Tucker’s view that the judge should never stray beyond the narrowly-circumscribed bounds of his office:
If the principles of our government have established the judiciary as a barrier against the possible usurpation, or abuse of power in the other departments, how easily may that principle be evaded by converting our courts into legislative, instead of constitutional tribunals?
To preserve this principle in its full vigour, it is necessary that the constitutional courts should all be restrained within those limits which the constitution itself seems to have assigned to them respectively."
Id.
I wouldn't mind if a coupla judges nullified , say , drug law...but who , nellie!
I like some mandatory minimums - use of a firearm , say - but on balance like the notion that someone whose job is to judge does more than just preside.
As much as we might like at first blush to have our judges do things, we don't have the power to give it to them, and we wouldn't give it to them if we really thought about it hard. The job of a judge, according to the Framers, was to preside -- Thomas Jefferson thought the perfect judge was a "mere machine." As Gibbon noted in his magnum opus on the fall of the Roman Empire (not an exact quote), the grant of discretion to judges was the beginning of tyranny.
The grant of discretion to a judge is not the beginning of tyranny anymore than granting discretion to jurors is. Granting discretion to judges and juries is also the beginning of justice.
And when I have, I have presented a wealth of evidence to that effect. It is the evidence that you find problematic ... not my reasonable interpretation of it.
The Judge: "At every confirmation hearing assurances are extracted from nominees that they will follow the law and the Constitution and not substitute their own agenda. No one can quarrel with the concept that a judge has the duty to follow the law if it is constitutional and validly enacted. Both the oath of office and the principle of the separation of powers require it."
Your Honor, I would accept this as an axiom. But EVERY judge in the Tenth Circuit and District of Colorado (with the exception of John Kane) has flown a defiant middle finger in the face of Congress and the American people, in their repeated and willful refusal to follow law that is constitutional and validly enacted. I can cite an arresting array of pristine examples of same.
Veteran judges in the Third, Eighth, and Ninth Circuit have confirmed that the situation is similar in their Circuits, and dozens upon dozens of your colleagues have told us exactly how the crimes are committed. Everyone knows that it happens, and everyone else is guilty of misprision. [cont]
In Kamper, Judge Tyler also apprehended the danger, in observing that "I will not in an extra-judicial manner assume the right to negative a law, for this would be as dangerous as the example before us." 3 Va. at 61 (opinion of Tyler, J., seriatim). And in the wake of Marbury v. Madison, Thomas
Jefferson cautioned that to anoint judges as the ultimate arbiters of constitutional questions was "a very dangerous doctrine indeed, and one which would place us under the despotism of an Oligarchy." Thomas Jefferson, Letter (to William C. Jarvis), Sept. 28, 1820, at 1.
As much as I want the right answer coming out of our courts, I am more interested in the right process; as Justice Douglas famously intoned, the Bill of Rights is about procedure.
Another federal judge: "I'm not going to enforce the law saying that you can sue a judge in tort for committing felonies on the bench (the actual decision was coram non judice, thereby removing any form of judicial immunity; see, Bradley v. Fisher), because I'm a judge and I commit felonies on the bench all the time!" Okay, so it is not a direct quote, but it is a real case, and conveys the sum and substance of the opinion. You can even review the appellate briefs on-line at http://www.knowyourcourts.com/Smith/09-1003.htm.
With that background, I can answer that question emphatically: Not just no, but HELLNO! The judge's office is to interpret the law, not to rewrite it to suit his liking.
Just one of hundreds of cases out there where the judge used the Bill of Rights as a tamp.on.
Let's discuss it in detail, shall we?
It is a simple concept, Apple: As Justice Frankfurter observed, the judge’s only legitimate task is “to ascertain the meaning of the words used by the legislature,†for to go beyond it, and rewrite a statute to his or her liking, is to “usurp a power our democracy has lodged in its elected legislature.†When a judge substitutes his personal preference for the law of the land, we cease to enjoy the benefits of the rule of law, and our judges become nothing more than a black-robed band of Ba'athists.
Do the math. If a judge can decide that you don't deserve the protections of the Fourteenth Amendment, do you have them? The Soviet Union had the same protections of speech and assembly -- on paper. But Soviet judges never enforced them -- always finding the "facts" Andrei Vyshinsky needed to hear -- and as such, they do not as a practical matter exist.
The government has an obligation to respect our rights, but judges are free to refuse sua sponte, and the government will not force them to do so. How is our situation any different than that of the unfortunate Soviet citizen?
It's not enough to say that the government can't do anything to you unless you break a law, though. If you pass a statute forbidding breathing, and authorizing the dictator to enforce it with when and as he or she feels like, that's pure arbitrariness even though criterion (1) is met. You also need to satisfy rule (2): Rule (1) effectively and consistently limits the actions of government.
There's a corollary to (2): you have to be able to tell what the effect of a proposed law will be. Otherwise there may be some limitation but it's not consistent. That's where a judge's duty enters the picture. They have to rule so that their rulings will be as predictable as possible.
Of course, rule of law is not the only principle necessary to a just society, and rebellion is sometimes justified. But if someone uses their power as a judge to advance other principles at the expense of rule of law, they're not really acting as a judge.
In equity, we give judges latitude sufficient to arrive at the "right" result -- a real-life Judge Judy. In matters criminal, you are either found to have committed the crime to the requisite tolerance, or you are not. Constitutionally speaking, it's not the judge's call.
We're not designing a system of law from scratch. If we were doing so, the Judge's line of argument would carry considerable weight. For good or ill, the responsibility to ensure that the punishment fits the crime lies with the jury -- or would have, had the Imperial Judiciary not usurped this power.
The judge also has a particular responsibility as a law-maker, though: case law is law. The judge's second responsibility, then, is to ensure that any case law made in the case is good. There are several criteria of good law. As I said, there's the corollary to rule (2): the law must be predictable. Precedent must not be overturned unless it conflicts with other precedent. Instead, it must be made obsolete by new legislation. Then there's rule (3): the language of the law must be powerful, i.e. capable of expressing anything the legislature chooses to express. As semanticists of the law, judges play a particularly prominent part in this. Rule (4) is that the language of law must be as easily comprehensible as possible, consistent with the higher-priority rules. Only after all of those are met, and fail to fully determine the outcome of a case, may a judge (as judge) attempt to insert into the semantics of the law a bias toward fair outcomes.
For example, take a situation that has happened in Colorado: federal prosecution of a person who is growing marijuana for his personal use, due to medical needs. Colorado has a statute on the books that authorizes this, but federal law is of course pre-eminent.
Judge Bob Sarokin advises the jury of its charge, and that they have a right to nullify the law if it yields an unjust result. They return a verdict of acquittal, even though every fact that matters was admitted by the defendant. The system works as the Framers intended.
The difference between a grand jury and a petit jury is that the former indicts, whereas the latter decides the case. The grand jury was supposed to be a check on prosecutorial authority but as one disgraced judge put it, a good prosecutor can indict a ham sandwich.
The prospect of jury nullification provides a potential check against prosecutorial excess. Similarly, judge nullification of jury verdicts (if such is possible) provides a check against unjust jury nullification.
In a civil case, the runaway jury is controlled by a judge's ability to enter a judgment non obstante veredicto (judgment notwithstanding the verdict). Problem is, this can be a way for the corrupt judge to play favorites (a representative example can be found here: http://www.westword.com/2007-12-13/news/blackburned/ ).
Judicial nullification would be less problematic if judges could be sued for misconduct on the bench, as it would disincentivize the corruption which happens on a regular basis in the District of Colorado.
As opposed to, I knew it was wrong, I was simply following orders?
“No one can quarrel with the concept that a judge has the duty to follow the law if it is constitutional and validly enacted.â€
I do, your Honour. Since laws are devised by humanity. And are as such, subject to error. True justice constitutes the next level up. A height to which we may ever only aspire.
“The laws against child pornography and punishment for their violation are appropriate and necessary.â€
But are they addressing the problem? If not, then for how much longer must we unquestionably continue to thrash the same equine cadaver?
“sentences against persons who do not deserve themâ€
If we had a means of determining guilt without the role-play-games so beloved of lawyers, wouldn’t we use it? Well we have, and we haven’t seen fit to use it yet.
If other countries could present proven methods of decreasing incidents of recidivism, wouldn’t we investigate and adopt them. Well they have, but no one seems interested in importing them.
Isn’t it the case that the ultimate intention of law has been lost? To be replaced with a prime requirement to maintain the status quo.
I agree. Funny that the Judge can't bring himself to admit that it is wrong for a judge to sit in judgment of his own case. But that dig aside, nullification of unjust laws is the constitutional prerogative of the jury, and this has always been so since the English common law was devised.
In the Federalist Papers, Alexander Hamilton referred to the federal judiciary as the weakest branch, The Federalist No. 78 (A. Hamilton), and with good cause: the colonial judge could scarcely blow his nose without a note from the jury foreman signed in triplicate. At common law, the ultimate power to decide both fact AND law resided with the jury; trial judges were mainly administrators, and sources of objective counsel:
[In] 1793 John Jay, sitting as chief justice of the United States, informed a civil jury that while the court usually determined the law and the jury found the facts, the jury nevertheless had "a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy." "[B]oth objects," Jay concluded, "are lawfully, within your power of decision."
"The Jury and Consensus Government in Mid-Eighteenth-Century America," William Nelson, in The Bill of Rights: Original Meaning and Current Understanding (ed. Eugene W. Hickok, Jr., Univ. Press of Va. 1991), reprinted at http://www.constitution.org/jury/pj/nelson.htm (unpaginated).
Colonial judges knew their place, because colonial juries understood theirs. See e.g., Kamper v. Hawkins, 3 Va. 19 (Va. 1793) (state-law precursor to Marbury v. Madison).
"We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does. It is left therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty. "
Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2.