The polarization of the judiciary system

Discussion in 'Archive: The Senate Floor' started by kingthlayer, Apr 4, 2011.

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  1. kingthlayer Force Ghost

    Member Since:
    Jun 7, 2003
    star 4
    There is a special election in Wisconsin tomorrow to elect a judge for the state's judiciary branch. It has become a highly controversial election because the result has the potential to shake-up Wisconsin politics: it will alter the balance of the court and allow left-leaning judges to strike down recent legislation that limits collective bargaining. Essentially, Democrats are turning the election into a referendum on Scott Walker. Or, perhaps he has turned it into a referendum on himself.

    Normally the candidates would be limited to $400,000 dollars to spend on their campaigns, but this election has rapidly drawn in outside support to the tune of some $5 million.

    This is the latest example of what has become a trend of partisan politics bleeding into the judiciary system. It began when President Obama in an address to Congress foolishly attacked the Supreme Court for striking down McCain-Feingold. It continues with recent state-level rulings in support of or against health care reform. Now the Supreme Court is likely to either approve to reject Obama's reforms, which is going to drag the national court into the mud and grit of politics. We are seeing how polarizing politics will affect state-level judiciary races.

    To quote blogger Jay Bookman:

    So what do we make of this? Is this the natural course of things, given the fact that politics has been highly partisan since the 1990s? Is this the result of a generation of low-blow politics?

    Or, is this something that can be changed? If so, how?
  2. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    Revolution, leading to a fair form of government that does not depend on the illusion of "objectivity".
  3. DarthIktomi Jedi Master

    Member Since:
    May 11, 2009
    star 4
    I don't think the Constitution matters anymore. Hasn't really mattered since the first judge talked about "original intent". This view of the Constitution spread to the executive branch with the unitary executive theory ("Screw the rules, I make them!"), and the other day on C-SPAN, I caught a bit of a Congressman putting through a budget that would've been unconstitutional (as it would've become law if the Senate didn't vote against it in a week, when the House specifically can't decide the Senate's rules and vice versa), so now it's more "Screw the rules, even if you make them!"
  4. GrandAdmiralJello Moderator Communitatis Litterarumque

    Manager
    Member Since:
    Nov 28, 2000
    star 10
    How do you suspect laws are interpreted if they're not . . . interpreted? The very point of a judge is to decide legal issues. It's been that way since, oh, the dawn of jurisprudence.

    But sure, we can be trendy and say judges are making it up as they go.

    Also, unitary executive doesn't mean what you think it means.
  5. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    Can't say much on this now, but the Judicial Branch has always been political, they just prefer to keep the illusion that it's all apolitical because their only power is through their authority (don't have financial or military power), and once they decimate their credibility then they decimate their own power.
  6. Alpha-Red Force Ghost

    Member Since:
    Apr 25, 2004
    star 5
    Why would judges need credibility at all? If a judge does something really unpopular, we're stuck with it until they retire or pass away. That's how it was for Brown v. Board of Education, and that's how it was for Citizens United.
  7. LtNOWIS Force Ghost

    Member Since:
    May 19, 2005
    star 4
    Appointing judges is problematic, but I think electing them is even worse.
  8. Lowbacca_1977 Force Ghost

    Member Since:
    Jun 28, 2006
    star 6
    I think it's worth pointing out judges have been removed in the last year alone for their votes. In Iowa, 3 judges that ruled to allow same-sex marriage were removed in elections to see if they'd be kept on. It was the first time under the current system that had happened.

    I also know people in California that voted against judges that were seen as not supporting same-sex marriage, but that wasn't a big enough movement to actually throw them out.
  9. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    When they lose credibility, then they're just ignored. The Supreme Court lost credibility after the Dred Scott case, and Abraham Lincoln basically ignored their orders on how he was conducting the war, and got away with it because no one respected the Supreme Court at that time, it took them decades to regain credibility and respect. The Supreme Court has no army to enforce their rulings, and unlike Congress has now power over financing the government.
  10. shanerjedi Jedi Master

    Member Since:
    Mar 17, 2010
    star 4
    Politics has always been a part of the U.S. judiciary, especially dealing with federal judges. Who appoints them? Politicians. Who advises and consents? Politicians.

    So it's not a surprise judges are "tainted" by politics.


  11. JediSmuggler Force Ghost

    Member Since:
    Jun 5, 1999
    star 5
    Electing or appointing is not the problem. There are two things that are the real cause of the polarization:
    1. The judges are asked to decide highly controversial issues (gay marriage, abortion, etc.). In essence, when the judges issue a ruling, one side not only loses, in the case of the Supreme Court of a state or the United States. In essence, by short-circuiting the legislative and/or democratic processes, they leave one side feeling shafted and without much (if any) recourse.

    2. I think it gets worse when the judges are perceived to be biased. Remember Thomas Penfield Jackson? He gave an interview to Ken Auletta, in which he made comments that were seen as hugely biased, but embargoed them until Auletta's book came out. When the book came out, lots of people started to think that Microsoft got a raw deal in the court case, and he was eventually taken off the case, and part of the verdict was tossed.

    Now, let's move to discuss the judge who has been blocking publication of the Wisconsin collective bargaining reforms: Her son worked for the AFL-CIO and SEIU, while her husband donated to 3 of the 14 Democrats who fled Wisconsin to prevent the formation of a quorum. Does anyone seriously argue that she does NOT have a dog in the fight?

    That makes the controversy over the judicial system worse. One side will eventually believe that not only is the judicial system being used for an end run, but that the judges have a dog in the fight. At that point, things will get far, far worse. The judicial system will lose legitimacy in the eyes of a significant minority, and if enough of them decide to defy the judiciary... what then?
  12. LostOnHoth Chosen One

    Member Since:
    Feb 15, 2000
    star 5
    Many of you seem to be forgetting the role that judges play in the 'judiciary' system. Judges are just one component of the system. It's not like a judge in a superior court is presented with a legal/factual question to be determined (without any submissions, evidence or argument) and then goes off into his/her chambers for a couple of hours and then returns to court to deliver the verdict. The US has an adversarial system of justice which means that both sides to the argument (that is professional advocates for the parties, also known as lawyers) get to present and argue their respective cases according to rules of evidence and procedure. These rules are designed to deliver a level playing field.

    The US is also a common law country and so judges are bound by the doctrine of stare decisis (otherwise known as binding precedent). In a nutshell, judges are bound by the decisions of superior courts. It is the role of the lawyers for the parties in the dispute to argue whether a binding precedent applies or can be distinguished. The role of the lawyer in the 'judiciary system' should not be underestimated.

    Sometimes a judge must decide on two or more interpretations of the law. In those cases, the parties (again, lawyers) will draft lenghty submissions and briefs to the court and there will be an opportunity for skilled advocates to present their legal arguments orally before the court.

    Judges must then make a decision on the basis of the submissions and the material put before them. Some judges are criticised for their decisions when the true blame for some perceived injustice lies with the lawyers who may have presented a sloppy case. Lawyers are like any other occupation, there are good practitioners and lousy practitioners and you pretty much get what you pay for.

    In cases where there is a dispute about the facts, in most cases judges play little or no role as this is really the role of the jury.

    Lastly, when the case is concluded judges will write up decisions for their reasons and those reasons will usually be quite comprehensive, taking into account the cases presented by both sides. It's not like a judge simply hears the case and then declares on the day - "I find for the gay marriage supporters - woo hoo!". If the decision reveals an error of fact and/or law then the decision can be appealed to a higher court.

    Ultimately, judge made law can be overuled/reversed by specific amending legislation. If a judge makes a decision which the government is unhappy about (especially in tax cases) the legislature passes laws which effectively overturn the ruling. In doing so, the legislature will be answerable to the people. The only crcumstance where this is not possible is in Supreme Court cases concerning whether a particular law offends against the constitution in the first place.

    The system is not perfect. Judges are not perfect. But please let's not get carried away with this idea that judges make decisions in a vacuum. Judges play an important role but they are just a cog in the system.
  13. DarthIktomi Jedi Master

    Member Since:
    May 11, 2009
    star 4
    "The executive branch shall construe..."

    Also, the unitary executive pretty much means the branches of government are completely separate, with no checks and balances. In other words, screw the rules, I make them.
  14. Ghost Chosen One

    Member Since:
    Oct 13, 2003
    star 6
    No... it means the President is in charge of the entire executive branch.

    The U.S. has a unitary executive.

    By contrast, the states aren't unitary executives, because the people also elect the State's: Attorney General, Secretary of Treasury, Secretary of State, Lieutenant Governor, etc. in addition to the Governor.

    In order for the U.S. to not have a unitary executive, the people would have to directly elect the Cabinet in every presidential election, in addition to the President, and candidates would have to have primaries and campaign for the jobs of the Cabinet.
  15. Rogue1-and-a-half Manager Emeritus who is writing his masterpiece

    Member Since:
    Nov 2, 2000
    star 7
    You have to actually have a functioning judiciary before it can be polarized, don't you? Well, all we have to have to do is keep up this whole thing of just blocking all judicial appointments and pretty soon we won't have the polarization problem anymore! Easy as pie.
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