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I think the idea that the courts were ever neutral arbiters of truth and justice or whatever horseshit is itself ridiculous. We live in the country of Plessy vs. Ferguson and Dred Scott after all.
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Dec 20, 2018 20:45
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Is vs Ought. The courts haven't always lived up to their change to neutrally adjudicate the laws, but our response should be to try to make them better in that role, rather than throw up our hands and abandon the whole idea of having a neutral and independent judiciary in the first place.
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Dec 20, 2018 20:52
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You can't have an office be appointed by elected representatives and expect it to be entirely divorced from politics. There are a lot of systemic incentives to make decisions on purely political grounds. You can't fight this without changing the system itself, imo.
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Dec 20, 2018 20:59
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I mean it’s simpler than that. The law is inherently political and so is interpretation of that law. There’s no special way of creating and interpreting law that makes it “apolitical,” that’s simply not how this works.
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Dec 20, 2018 21:01
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Sure, but you could (arguably should) create a system where interpreting the law is mostly divorced from the considerations of electoral and partisan politics.
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Dec 20, 2018 21:07
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That's not what you have though, so Democrats should fight every remotley controversial appointment by Republicans until the bitter end, imo.
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Dec 20, 2018 21:12
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AFancyQuestionMark posted:You can't have an office be appointed by elected representatives and expect it to be entirely divorced from politics. There are a lot of systemic incentives to make decisions on purely political grounds. You can't fight this without changing the system itself, imo. Let me be clear, I lay the blame for our current state of affairs squarely at the feet of Mitch McConnell and his band of jackals who decided that exercise of power was more important than good governance, but it scares the hell out of me that the lesson people are taking away seems to be, "hmm, the judiciary *can* be used as a cudgel against people we disagree with politically. We should get in on that." AFancyQuestionMark posted:Sure, but you could (arguably should) create a system where interpreting the law is mostly divorced from the considerations of electoral and partisan politics.
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Dec 20, 2018 21:18
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Dead Reckoning posted:Sure, but that's a problem with every office in a democracy. It doesn't mean that we should have cops or tax collectors that enforce laws with an eye towards Democratic or Republican ideology, even though they are supervised by an elected or appointed official. We can at least try to structure the system in such a way as to minimize partisan pressure. I'm pretty sure the lesson most people are learning from McConnell's antics isn't using the judiciary as a cudgel, but rather "if we fight fair and they fight dirty, we lose every time". If you have no reason to think the other side is going to suddenly start fighting fair (and there is no reason to think the Republicans are going to suddenly depoliticize the judiciary) then unilaterally deciding not to meet them at their level means you lose, and in the world of 2018 losing to the Republican Party means not only that a ton of people lose their basic human rights, but also that we probably all die of climate change.
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Dec 20, 2018 21:27
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Dead Reckoning posted:We can at least try to structure the system in such a way as to minimize partisan pressure. For judicial appointments in the US, that ship has sailed long ago. Your system is structured in a way that inherently maximizes partisan pressure, rather than minimizes. The only thing worse than this would be to have elected judges.
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Dec 20, 2018 21:28
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Reminder that the GOP's reaction to losing is also "gently caress it we'll rig poo poo to our benefit on our way out" like they did in NC and have just done in WI and MI. Anyone who suggests giving the GOP any sort of leniency is either a fool or someone who supports the GOP.
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Dec 20, 2018 21:29
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Right now, we're talking about a Federalist Society judge who formerly worked for John Cornyn and was also close with Orrin Hatch, and is a favorite judge of the Texas AG due to his reliably conservative rulings. It's way too late to talk about nonpartisanship.
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Dec 20, 2018 21:37
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For the sake of example, how is Canada's highest court appointed? Is it political or is it mostly "best person for the job" style?
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Dec 21, 2018 00:15
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algebra testes posted:For the sake of example, how is Canada's highest court appointed? Is it political or is it mostly "best person for the job" style? The governor general appoints them; an the parliament and provinces aren't supposed to be able to even give advice towards it. The governor general is appointed by the queen. The governor general gets nominations from the privy council which is made up of former chief justices and parliamentarians and chaired by the prime minister. To qualify for appointment one had to serve on a superior court or members of the bar for >10 years. And apparently at least 3 need to come from Quebec. For the other superior court appointments the minister of justice forwards recommendations to the federal cabinet (a subset of the privy council) picked from justices who meet certain qualifications. If it is for a chief justice spot, the recommendation comes from the PM. So it is a bit of both. Ideally people who are picked come through as "recommended" (which means they meet certain minimum qualifications like serving in a lower court, time with the bar, etc) but "non recommended" folks can still be appointed as long as the governor general approves it. Since the governor general is appointed by the queen (Elizabeth II here) that should be minimally political. The current governor general Julie Payette is a former astronaut and serves on the board of directors for the national bank of canada, so make of that what you will. Generally they serve for relatively short periods of time too; the term length if 5 years and it rarely goes beyond that. The PM recommends a successor as well even tho it is up to the queen to approve them.
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Dec 21, 2018 03:32
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Dead Reckoning posted:Is vs Ought. The courts haven't always lived up to their change to neutrally adjudicate the laws, but our response should be to try to make them better in that role, rather than throw up our hands and abandon the whole idea of having a neutral and independent judiciary in the first place. I'd question to what extent this does't inherently entrench conservative ideology. Unless your vision of impartial judges has them acting as technocrats - which serves its own set of challenges - a "neutral" adjudication of laws would tend towards stare decisis, and the current state of things has been ... less than optimal ... for most of our history.
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Dec 21, 2018 04:00
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Dead Reckoning posted:Let me be clear, I lay the blame for our current state of affairs squarely at the feet of Mitch McConnell and his band of jackals who decided that exercise of power was more important than good governance, but it scares the hell out of me that the lesson people are taking away seems to be, "hmm, the judiciary *can* be used as a cudgel against people we disagree with politically. We should get in on that."
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Dec 21, 2018 04:35
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Raldikuk posted:The governor general appoints them; an the parliament and provinces aren't supposed to be able to even give advice towards it. The governor general is appointed by the queen. The governor general gets nominations from the privy council which is made up of former chief justices and parliamentarians and chaired by the prime minister. To qualify for appointment one had to serve on a superior court or members of the bar for >10 years. And apparently at least 3 need to come from Quebec. Uh, while some of this is technically true some of it is not, the queen has no role and the governor-general is 100% a figurehead with no power who does whatever the Prime Minister says and is chosen by the prime minister, not the queen. The Supreme Court of Canada is appointed by the Prime Minister pretty unilaterally, but has to follow certain rules. By law, three justices have to be from Quebec because they have a different legal tradition than the rest of Canada. By convention, three more come from Ontario and the remaining three from the other provinces, typically one from British Columbia, one from the Prairies, and one from the Maritimes. You have to served as a judge or member of the bar for ten years before you can be appointed. There's lifelong terms until mandatory retirement at age 75. The process is less politicized, though funnily enough that's because it's more centralized under the executive branch (like a lot of things in the Westminster system). The Prime Minister selects and appoints the justices all on their own, there's no vote in Parliament or anything like that, though usually now the justice does get interviewed by members of parliament, the members have no say in the final decision. This means the Prime Minister can appoint whoever they want, but it also means they can't hide behind a confirmation vote. If they appoint someone unqualified (which is difficult given the rules for minimum qualifications) or extremely partisan, they take all the blame for that. But in practice, the SCC is nowhere near as high-profile or politicized as SCOTUS. Cases rarely make the news, even contentious or political cases are often decided unanimously, and justices regularly vote against the political side of the prime minister who appointed them. Don't ask me why this is the case, but it is. Our last Prime Minister, Stephen Harper, was perceived as trying to politicize the court by picking ideological appointees, but it didn't really work out. The court still ruled against him a lot of times. Once he tried to appoint a judge named Marc Nadon as one of the three Quebec justices, and the SCC itself rejected his appointment because he didn't fit the criteria to be one of the three Quebec justices. So long story short there's even fewer checks on the politicization of the Canadian Supreme Court because the nominee doesn't have to pass any kind of vote. If America had the same system, Robert Bork would have sat on SCOTUS. But by convention in both politics and in the court itself, it's less politicized because the justices themselves have historically been less political, and because there are qualification rules that ensure you can't appoint someone who's really actually unqualified. Like a lot of Canadian institutions though, there are no actual hard rules preventing politicization, just conventions. When we inevitably elect a Nazi prime minister there would be nothing to stop them appointing Nazis to the Supreme Court if they can find one who meets the criteria for appointment. vyelkin fucked around with this message at 05:57 on Dec 21, 2018 |
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Dec 21, 2018 05:54
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In the other common law countries, Canada, Australia etc that have judicial review of legislative acts, the courts are less politicized because the written constitutions are relatively recent things that are now mostly clear cut and there is broad political consensus. The Canadian Charter of Rights and Freedoms was agreed upon in 1982, there aren't really a lot of massively polarizing issues open to judicial interpretation, there is no chance that the supreme court will interpret some centuries old passage about well regulated militias to mean everyone has a constitutional right to high capacity magazines. I was at a fedsoc meeting a while back and the lecturerer was extolling the virtues of constitutional originalism, but stressed that originalism only works if you also have a robust system of constitutional amendment. i.e. if it's obvious that everyone should have abortions then amend the constitution to say everyone should have abortions, that way the courts have only a technocratic role of constitutional interpretation. Constitutional amendments in America seems to come and go in terms of popularity, somehow enough states agreed to ban the production of alcohol 100 years ago, but right now there probably isn't enough of a political consensus to amend the constitution to say "fewer guns, abortions OK" so then the battle is over which unaccountable lifetime appointment gets to go on the supreme court and read whatever the hell he/she wants into a 250 year old document. There' s no way around this other than a national consensus on the issues.
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Dec 21, 2018 09:29
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Dead Reckoning posted:Let me be clear, I lay the blame for our current state of affairs squarely at the feet of Mitch McConnell and his band of jackals who decided that exercise of power was more important than good governance, but it scares the hell out of me that the lesson people are taking away seems to be, "hmm, the judiciary *can* be used as a cudgel against people we disagree with politically. We should get in on that." Hm yes, the forumsposter who wants our courts to be stacked with far-right partisan nutjobs who will impose his fashy ideology on the country and use them as a cudgel against his enemies assures us that the only way to create a neutral judiciary free from political operators is to rush to confirm a slate of far-right partisan nutjobs who will impose their fashy ideology on the country. VitalSigns fucked around with this message at 13:31 on Dec 21, 2018 |
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Dec 21, 2018 12:54
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AFancyQuestionMark posted:In any event, the apolitical nature of judicial appointments is purely a pretence. A pretense for what? Inaction?
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Dec 21, 2018 14:15
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Throatwarbler posted:There' s no way around this other than a national consensus on the issues. Also why California is such a joke to the rest of the country.
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Dec 21, 2018 16:08
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Subjunctive posted:A pretense for what? Inaction? It's a sham. A fiction. The courts are "supposed" to be apolitical, yet the appointment process itself almost guarantees that they're anything but.
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Dec 21, 2018 16:13
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AFancyQuestionMark posted:It's a sham. A fiction. The courts are "supposed" to be apolitical, yet the appointment process itself almost guarantees that they're anything but. And a harmful fiction, because it lends legitimacy to the court system when it does illegitimate and highly political things (e.g., ratifying Trump's muslim ban). The problem is that a realistic assessment of how political -- and how necessarily partial -- the legal system is, would necessarily require a ground-up rebuild of the whole system from first principles. The core concepts -- from the notion of the possibility of impartial human arbiters, to the idea that punitive incarceration has any social utility at all -- are just invalid in a host of ways. The whole system is based on enlightenment-era ideas that we now know to be just wrong (for example, the concept that human beings are individually responsible for their actions, and not just creatures of circumstance and habit, biological machines who are only accidentally functional), and that's where it isn't based on even more ridiculous medieval or earlier concepts that have just sortof hung around in the law for whatever reason (asset forfeiture, for example, derives from the same body of law, the law of deodand, that allowed lawsuits against trees because of the actions of the evil spirits within the tree). Just as one example, any federal judge who honestly came to terms with how repressive the plea bargain system is, and how inherently racist the legal system as a whole is, would have to stop participating in that system and retire. Like, we all know this is the case, but if we came to terms with it, the system as a whole would implode, so we don't. If the system is so racist that a black man can't get a fair trial (it is, and they can't), how can we continue to put black men on trial, knowing those trials will necessarily be unfair? At least with trial by combat you could argue that the side with less money often had a realistic shot of winning.  To the extent that justice happens in our legal system, it's often more to the credit of the best efforts of the people working within that system; despite the system not because of it.
Hieronymous Alloy fucked around with this message at 18:11 on Dec 21, 2018 |
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Dec 21, 2018 16:23
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https://www.cnn.com/2018/12/21/politics/ruth-bader-ginsburg-surgery/index.html Am I out of the loop on this? I knew RBG broke some ribs but I never heard anything about cancer or surgery. Hang in there little old lady, your country (still) needs you.
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Dec 21, 2018 18:55
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It's not her first brush with cancer, she was treated in 1999 and I believe 2009. vyelkin posted:I'm pretty sure the lesson most people are learning from McConnell's antics isn't using the judiciary as a cudgel, but rather "if we fight fair and they fight dirty, we lose every time". If you have no reason to think the other side is going to suddenly start fighting fair (and there is no reason to think the Republicans are going to suddenly depoliticize the judiciary) then unilaterally deciding not to meet them at their level means you lose, and in the world of 2018 losing to the Republican Party means not only that a ton of people lose their basic human rights, but also that we probably all die of climate change. twodot posted:If the McConnell-group has openly adopted a strategy of "We will definitely only appoint blatantly politicized judges", then the only possible path to a non-politicized judiciary is to openly oppose anything they do, because any sort of acquiescence can only further politicize things. I agree that it's annoying that that's the only remaining strategy, but what's the alternative, support McConnell-group appointees? VitalSigns posted:Hm yes, the forumsposter who wants our courts to be stacked with far-right partisan nutjobs who will impose his fashy ideology on the country and use them as a cudgel against his enemies assures us that the only way to create a neutral judiciary free from political operators is to rush to confirm a slate of far-right partisan nutjobs who will impose their fashy ideology on the country.
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Dec 21, 2018 19:05
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KodiakRS posted:https://www.cnn.com/2018/12/21/politics/ruth-bader-ginsburg-surgery/index.html This only broke today. They discovered and removed some cancerous tissue as part of the treatment for the broken ribs.
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Dec 21, 2018 19:06
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Hopefully her next fall reveals whatever unknown cancer is still in there.
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Dec 21, 2018 19:18
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Dead Reckoning posted:I'm 100% on board with opposing the appointment unqualified or partisan judges, which is why it bothers me that some people seem to think that the remedy is to appoint Democratic partisan judges as a tit-for-tat.
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Dec 21, 2018 20:48
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https://twitter.com/thehill/status/1076209712377532417 5-4, Roberts voted with the liberals. This was a request to temporarily allow the asylum ban between points of entry until the case could be heard. By law, asylees must be allowed to apply no matter how they entered the country. Trump is saying "oh no problem, they can apply, but their illegal entry will be our reason to deny asylum". The counterargument is "gently caress you, congress obviously did not intend that."
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Dec 21, 2018 21:19
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Another note on the judiciary in a Westminster system - consider also that most of these systems explicitly don't have checks and balances, and are instead designed to produce governments with absolute majorities in the legislature, and tight party discipline. Those governments can legislate as they see fit (assuming the country isn't in the middle of a self-inflicted constitutional crisis after calling a truly idiotic referendum), and so there's no need to stack the judiciary because the Government just passes a new law. Even in countries with US-style constitutional arrangements, it's far less of a pain in the arse to have a law's provision altered or nullified by a court than it is for an American law to be declared unconstitutional. In the USA, you have a national legislature that's very hard to take total control of, and you have weak party discipline so it's not guaranteed to be able to get anything passed even when you control the House, the Senate, and the Presidency. Even if the Supreme Court lacked its power to just go "this law is unconstitutional, gently caress you", and/or there were stricter limitations on terms of office, judicial appointments would still be far more important and far more worth playing silly buggers with.
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Dec 21, 2018 21:56
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Hieronymous Alloy posted:And a harmful fiction, because it lends legitimacy to the court system when it does illegitimate and highly political things (e.g., ratifying Trump's muslim ban)... If the system is so racist that a black man can't get a fair trial (it is, and they can't), how can we continue to put black men on trial, knowing those trials will necessarily be unfair? The court system isn't a cure for all ills. The solution to the President using their legal powers in a way you don't like (such as Trump's "definitely not a Muslim ban this time v3") is to vote for a new President. The court also cannot correct the fact that a large percentage of people are consciously or unconsciously biased against black Americans. The legal system has to operate in spite of those problems. I'm not saying that bias isn't something that should be corrected, I'm saying that throwing up your hands and saying that bias is inevitable, so let's make sure that the courts are biased in the "correct" way rather than striving to eliminate it, is corrosive to the entire concept of rule of law. Mitch McConnell is wrong for trying to make the courts partisan, not because he picked the wrong color of partisanship. twodot posted:If you prefer an unpartisan judiciary, you must engage in tit-for-tat, because they have already succeeded at appointing Republican judges. If you (successfully) oppose partisan judges of all types, you at best wind up with some Republicans and some unpartisans (again supposing that is even a real concept), which means the judiciary is still net-partisan.  That isn't how it works. The judiciary isn't a continuous, homogeneous fluid where, if we add enough drops of blue food coloring, it will eventually turn purple. What you would end up with is a hyoerpolarized court system where, instead of your case being decided on the facts and the law, it matters whether your case gets assigned to a judge that matches your political persuasion. Plus, by doing that, you're endorsing the Republican view that judges should be picked based on political affiliation rather than qualifications or impartiality. And yes, I am aware that, in the system as it currently exists in the real world, your case can be tipped by whether it is assigned to a tough-on-crime judge, but we should be trying to move away from that, not reenforce it.
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Dec 21, 2018 23:34
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Dead Reckoning posted:Every free and functional country has some sort of judicial system, and impartiality and legitimacy are necessary for such a system to function. It's the only way that winners and losers in court cases both respect the outcome. How else can legal disputes be arbitrated? How do you look at the American incarceration rate compared to other countries and still claim, with a straight face, that we are a free and functional country? There are countries that can make that claim, at least by the "well it's the real world, pobody's nerfect" standard you're espousing, but the US is objectively horrible in this regard by world standards. Our legal system is much more oppressive than the systems of other developed-world nations.
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Dec 21, 2018 23:46
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The court system isn't the cure for all ills in this country, and y'all should be lobbying your reps and senators for legislation that fixes the problems you want fixed instead of ignoring the legislative branch entirely and hoping that this time the courts eally will slap down the Other Team.
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Dec 22, 2018 00:44
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AGGGGH BEES posted:The court system isn't the cure for all ills in this country, and y'all should be lobbying your reps and senators for legislation that fixes the problems you want fixed instead of ignoring the legislative branch entirely and hoping that this time the courts eally will slap down the Other Team. Also on the state level. (Mostly so you can leave your bullshit in states I'm not in).
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Dec 22, 2018 00:50
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american law is inherently political and 'partisan,' and having '''impartial judges''' is about as sensible as The Truth Is Always In The Middle cable news
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Dec 22, 2018 01:04
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Dead Reckoning posted:What you would end up with is a hyoerpolarized court system where, instead of your case being decided on the facts and the law, it matters whether your case gets assigned to a judge that matches your political persuasion.
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Dec 22, 2018 04:13
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No what you’d end up with is a completely nonfunctional system of federal courts because there aren’t enough loving district judges. Edit: not that there are really enough in the SQ.
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Dec 22, 2018 04:49
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Dead Reckoning posted:Every free and functional country has some sort of judicial system, and impartiality and legitimacy are necessary for such a system to function. It's the only way that winners and losers in court cases both respect the outcome. How else can legal disputes be arbitrated? Thanks, I needed a good laugh.
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Dec 22, 2018 05:59
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Dead Reckoning posted:"If we do the fair and right thing, we might lose" wasn't a good argument after 9/11 and it isn't a good argument now. I might be misunderstanding you, but if you think that any political system where Republicans might win a court case or an election or otherwise exercise political power over Democratic objections is an intolerable existential threat, you may as well advocate for one party rule. lmao at a 9/11 comparison for a political fight between two parties of roughly equal strength. I think you're misunderstanding me. I'm not talking about, for example, a specific court case. I'm talking about patterns of political behaviour by Democratic and Republican politicians that mean Republicans win fights like appointing judges, and the current state of the Republican Party means that the judges they appoint (to lifetime positions!) are extremely politically biased towards conservative causes that are damaging for both American people and the world as a whole. McConnell has shown that he will use any trick in the book to appoint deeply partisan conservative judges to every open position no matter what the circumstances. Now, the solution is not necessarily for the Democrats to start appointing deeply partisan liberal judges in response, but it absolutely is for them to stop pretending to be the adults in the room and start fighting back on the same level. Deny McConnell his appointments, leave positions open for years if necessary, only agree to confirm moderate judges, that kind of thing. Do the same thing to him that he did to them. Instead they do things like confirm a bunch of partisan hacks to be judges with voice votes so that they can all leave town to go campaigning before the midterm elections. The end result of their political incompetence, cowardice, or negligence is that over time the judiciary becomes more and more stacked with conservatives, because when the Republicans are in power they're allowed to appoint more judges than the Democrats are. And when the judiciary is filled from top to bottom with partisan conservatives who have no problem politicizing the law and the constitution to suit their own political agendas, the end result is that people lose their rights and that necessary political battles such as, to use the most important example, the fight against climate change, are obstructed and hindered by arbitrary legal barricades put up for political reasons. "When they go low, we go high" is a nice idea in principle, but in practice what we've seen happen over the last decade or so is that when McConnell goes low and Democrats go high on judicial appointments, the end result is a partisan judiciary with an ever-more-conservative lean. With no sign that McConnell and the Republicans are going to change their strategy (why would they, when they're winning?), the Democrats unilaterally deciding to preemptively disarm themselves by not using the same tactics against them means we all lose. vyelkin fucked around with this message at 06:19 on Dec 22, 2018 |
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Dec 22, 2018 06:15
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Dead Reckoning posted:There is no reason for people to respect the courts but the threat of force. Yeah.
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Dec 22, 2018 15:19
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Remember that Wisconsin gerrymandering case where the SCOTUS punted? Kennedy didn't want to rule on the merits yet and also didn't want to close the door either so they found issues with standing and sent that case and others back down for lower courts to figure out standing. Well, two of the cases impacted was the NC and the MD gerrymandering cases which had been meandering their way through the appeals courts to decide the standing issue. Today the Supreme Court, unless I'm reading the orders wrong, reached down and grabbed those two cases, basically saying "forget about the standing issue, we want those cases now!" That is probably not a good sign. edit: we might need a 2019 thread.
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Jan 4, 2019 21:17
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