Thursday, May 8, 2008

Why We Need Strong Federal Judges; Republican Earl Warren

Wonder why folks on the far right hate reasonable federal judges of all political stripes? Because they strike down unconstitutional laws. The New York Times carried this obituary:

Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws, died on May 2 at her home in Central Point, Va. She was 68.

Not many folks remember Mrs. Loving, but the Times provides a nice refresher course on this ugly part of our history.

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here."

Eventually, the case wound its way to the U.S. Supreme Court, where Chief Justice Earl Warren struck down Virginia's law that prevented people of different races from being married. Virginia trial Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

You will recall the race riots in Little Rock, the protests around Brown v. Board out of Topeka. The Loving case faced a similar outcry from the racists. Since those decisions, the far right wing has figured out that they only way to have unconstitutional laws upheld is to pack the federal courts at all levels.

When McCain talks about appointing judges like Scalia, what he is saying is that he is not going to appoint folks like Chief Justice Earl Warren. Warren is viewed as a turn-coat. Despite being elected as the Republican Governor of California and the Republican VP candidate in 1948, Warren did such crazy things as saying separate was not equal (Brown v. Board), that people should be told their rights (Miranda v. AZ) and that all humans are created equal and can marry people of different races (Loving).

I'm holding my breath for McBush to say he's going to appoint the next Earl Warren.


Phil Cardarella said...

You forgot to add that Earl Warren was also a very tough prosecutor befor he became California's Gov. -- so he knew exactly how important his criminal justice decisions were. The idea that he wanted to "coddle crooks" was as ludicrous as the Right Wing fantasy that Eisenhower was a secret Commie.

When Barack Obama was born, his parents could not legally marry or live together as married in the State of Missouri.

Elections have consequences. One of the consequences of past elections is the Scalia Court.
This is the kind of anti-individual rights judge the real McCain will appoint.

Seeing McCain on the Daily Show is scarey. He's charming, self-deprecating,witty, a fatherly good sport -- just the kind of guy who can get elected President.

It is hard to remember that behind the smile is the right-wing idealogue who thinks like Bork.

whistleblower said...

It's called overcoming ignorance.

While I applaud the courage of Justice Warren's decision, he could not have done so without having others on the Court who agreed with him. Morally, I agree with the Court’s ruling. However, the constitutionality of the Court’s decision could/has been debated.

Warren is a Justice that was in the right place, at the right time, and made a good moral decision. I doubt that he could have made the same call, and gotten away with it, had he been on the bench 25-50 years earlier. Did the Constitution change?

Time, education, and strong leaders like Martin Luther King Jr. did more for racial equality than the Warren Court did. Had the Warren Court not got involved, I think the states would have eventually come to the same conclusion on their own accord.

The Religious Right tends to rely on faith. One man’s faith is no more or less important than another man’s faith. Neither should have any influence when interpreting the law.

Contrary to the opinions of Stephen and Phil, the Religious Right does support individual rights. They just define the "individual" differently than Stephen and Phil do. (not that one is right or wrong- at least not in the context of this post)

As Stephen and Phil are both members of a profession that constantly looks for the fine line of what they (or those they represent) can get away with, the legality, and not morality, of the action is the determining factor. That “living on the edge” if you will, is bound to transfer into their personal beliefs. What is legal and what is moral are bound to become blurred; without even knowing it. Any attempt to curtail what has come to be acceptable will always result in a fight. What you can get away with doing is likely to influence what you think you should get away with doing. I would find it difficult to present something as being ok within the confines of the law, while also being morally opposed to the same action. Human beings like to feel that what they are doing is morally ok. I’m not trying to be offensive to the legal profession. I’m just expressing my personal observations.

I.e. If .07 is legally too drunk to drive, .06 is legally acceptable and eventually becomes the moral limit too. Eventually we will all be able to go into a bar and order a .06. (Just enough buzz to make me happy, but not enough to send me to jail.) When technology permits it, I bet a refresher to top you off before you leave the bar will be purchased by many. The stopping point becomes more important than the starting point. Don’t drink and drive will eventually be known as don’t drink too much and drive.

Every time you move the reference point for what you consider to be acceptable conduct and what you consider not, it causes the next conclusion to be reached at a different point of moral equilibrium. Women’s bathing attire is a good example of the transition. Think about how “kinky” has been redefined over the years.

Stephen Bough said...


Thanks for your very thoughtful comments.

I do not take these particular comments as offensive. I think the entire legal profession may be offended about Phil and me, though.

I do believe, unlike the religious far right, that one founding father's interpretation of the Constitution is not the only issue to be debated. Some founding fathers never wanted African Americans and women to ever vote. That obviously changed. The Constitution was a great compromise; the Bill of Rights improved it.

I tip my hat to the religious far right; they have discovered that by cloning Scalia they can get abortion rights overturned. They talk about it on talk radio, they push their candidates on whom they would appoint and federal court nominees are a huge issue.

Our Constitution has to be interpreted every day to address new issues. Search and seizure doesn't just apply to houses, it was to be applied to the internet. What privacy meant 200 years ago is different today. A well armed militia now and then is different. Federal judges don't make cases up to rule on, they are presented with legal issues in a lawsuit brought by two parties and have to say yes or no - sustained or overruled.

I greatly appreciate the thoughtful, non-anonymous conversation. Thanks.

Phil Cardarella said...

Actually, the Warren Court was the first modern, post-frontier court. While there was a frontier, folks could move away from a lot of oppresive laws. By the time of the Warren Court, the end of the frontier and the increased homogeny brought on by mass media forced the court to re-examine issues that has been avoided before -- like race and police abuse.

And a half million Americans had just given their lives to fight racist tyranny abroad. Lest we forget. That sacrifice seemed wasted if we were to continue to interpret our Constitution to allow for racist tyrannies at home.

By the way, the law has never been "Don't drink & drive", only don't drink so much that you are a significant danger to society. But the fact that some choose to short-hand it to an absolute prohibition says a lot about their actual motivations.

Back in the Cretaceous Period when I bacame a lawyer, the actual presumed limit was .15. Since then we have inched our way down to .08(a point at which most drivers are about as impaired as if they were using a cell phone)and hundreds of thousands have lost their licenses and often their jobs. Insurance companies have made billions more insuring the same people as before. We have manufactured thousands of new felons.

What this has NOT done is made the roads one bit safer. Sure, the deaths from alcohol related accidents have gone down -- but so have all accident deaths per mile driven. We have seat belts, airbags, advanced medicine, etc.

What has happened here is that our Puritan prohibitionist MORAL beliefs have been the ones to blur the lines into the criminal law -- assuming that enforcing good morality (mine, not yours) by criminal sanctions is good government. Everything that is immoral must be illegal too.

We truly do have different views of individual rights. You believe that every individual has the right to act as you believe he should. I believe that he has the right to act as he believes he should -- limited only by the strictures that he not harm others.

Drinking, smoking, drugs, sex (even, occasionally rock & roll) must be outlawed because they offend the MORALITY of the majority. Or sometimes of just the organized minority.

Gays marry? It's immoral, so they can be made second-class citizens.(Does anyone actually believe that it would undermine his hetrosexual marriage gays got to to marry? Is he planning to divorce his wife & marry another guy if he can? Poor gal, stuck with such a closet case.)

I do not begrudge everyone seeking to get to heaven his own way. I am offended by those who -- seeing that God has given us each a free will -- look to Jefferson City to improve on His handiwork by making us moral by threat of locking us up.

It has nothing to do with my profession. And I lead a fairly dull personal life. I just am not threatened by the freedom of others to do things I might choose not to do.

whistleblower said...

Stephen and Phil...

Don't tell anyone, but I find myself agreeing with much of your commentary.

Morality is the basis for most criminal laws. Sometimes the legislature gets over-zealous in their attempt to keep peace in society. Murder was morally wrong long before it was a crime. We legislate to confirm morality. Unfortunately, sometime we legislate to inject morality; I think that is wrong. I don’t care what a man, and a woman, and another man, and an animal of their choice do; as long as they do it in private. Homosexuality (and bestiality for that matter), do no harm to others, but they do move the bar for what society considers to be acceptable behavior. Every time the bar moves, the stop point gets moved with it. I’m glad to see that when society changes what it considers to be morally acceptable, that process seems to occur at a relatively slow rate. The alternative is a feel good, the hell with what you want, society.

I am 100% with you on the DUI laws. I doubt that the 95 year old woman driving her Cadillac has a reaction equivalent to mine after I have three beers. Yet she is not held to the same standard. (that is, if the standard truly is based on reaction time.) I also don’t believe that we should consider children to be adults, just because we hate what they have done. We never consider a 13 year old to be an adult, in the eyes of the law, when they do something good. We have become a very vengeful society.

Our dependency on the Court has led us down a perilous path. We are supposed to depend on our courts to render judgment and mete out punishment in accordance with our laws. This all works just fine until we ask our court to look deeper into the law in hopes of finding something that is just not there. (If you look at a picture of the clouds long enough, you will see the shape of an elephant.)

Our Constitution was created in less than 6 months. Nobody in their right mind would expect it to cover everything. Instead of just accepting that and taking action to amend the Constitution; we, on too many occasions, have turned to the Supreme Court with hopes that they may find a metaphysical subtlety that can address the omission. We keep asking the Supreme Court to perform a job that is not theirs to do, and then we get mad when they do so. An activist court is often the result of an ineffective legislature that is more worried about getting reelected than they are about getting the job done.

Since you brought up reproductive choice, I think it is appropriate to address it.

The U.S. Constitution does not provide clear guidance on this matter. Asking the Court to hand down a decision in Roe v. Wade was appropriate; however, making the Court’s decision the law of the land was a pretty chicken-shit way out. A Constitutional Amendment would have been the appropriate follow-up to the Court’s ruling. Had the Court’s ruling gone the opposite way, an amendment would have still been the appropriate legislative response.

When the Constitution does not provide clear guidance, it is the duty of the General Assembly to initiate the amendment process. They did so with the right to vote, prohibition, and slavery. (All of which I could see the Supreme Court finding a way to use the Constitution, as it existed, to render a decision.)

When Congress doesn’t know, ahead of time, what the final outcome of a proposed amendment will be, they seem to avoid the process and leave the determination to the few (SCOTUS) instead of the many. That’s not the way the Founders intended it to be.

We let seven members of the Court determine when that life becomes protected, and when a woman no longer has control over her own body. Yes, the Court’s decision was two-pronged. They not only determined that a woman had the right to decide what goes on with her body, they also determined when a woman no longer had that right. I think the Founders would have rather let the people themselves have the loudest voice in that matter.

One of my favorite quotes. In 1787, Thomas Jefferson wrote a letter to James Madison in which he stated, "I know of no safe repository of the ultimate power of society but the people, and if we think them not enlightened enough, the remedy is not to take the power from them."

Since Roe v. Wade, society has been in limbo. The Religious Right is waiting for the Court to overturn its decision, while the pro-choice advocates have worried about them doing so. I think that it would be wrong for the Court to overturn Roe. The law used to arrive at the Court’s decision has not changed. Further, I can think of no party that would meet the Court’s criteria for standing.

Our Constitution does nothing to establish that the decisions of the Supreme Court will become the law of the land. The SCOTUS’ decisions only apply to the case and parties before the Court. (If something exists in the U.S. Constitution that would constitutionally establish that the decisions of the Supreme Court are to be controlling over states that were not a party, please let me know.) Acceptance of control permits such to be established without such authority ever having been granted.

Things like abortion, voter ID, and the right to bear arms, should be decided by the Citizens of the United States. If they should be under federal control, and the Constitution lacks clarity on the issue, it is the people, and not the Court, that should be the final authority.

The Court should be making decisions based on existing law. When interpreting the law, the Court should not give weight to things like the Federalist Papers, because those writings were not ratified by the states.

Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, 17 U.S. 316 (1819), that "the opinions expressed by the authors of that work [referring to the Federalist Papers] have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained."

Madison himself believed not only that The Federalist Papers were not a direct expression of the ideas of the Founders, but that those ideas themselves, and the "debates and incidental decisions of the Convention," should not be viewed as having any "authoritative character". Madison further noted, “[a]s a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses”.

We need to worry more about an ineffective legislature, than we do an activist court. One promotes the existence of the other.

berto said...

To the owner of this blog, how far youve come?

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