Category: Justice

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Cisneros Update

About six years I go, I wrote a piece on one of the most amazing examples of otherwise rational, reasonable, responsible people going absolutely crazy that I have ever seen. The Cisneros affair, in which a public official was hounded into prison for not stating how much money he had paid his ex-mistress as alimony, after going back to his wife.

You probably don’t believe me. Why would the government spend $21 million (the figure given varies widely) investigating something that was not illegal– except that Cisneros did not state the correct amount when he was interviewed by the FBI as part of a background check for his appointment as head of HUD by Clinton? Because Janet Reno is a hysterical witch-hunter, that’s why. There was something about Cisneros’ offense– probably, the fact that he had left his wife– that imputed a kind of sinister magical aura to the deception. With a Democratic attorney-general treating the trivial matter seriously, the Republicans must have thought Cisneros was Satan himself.

Any sane person would ask, if this is the best the Republicans do at the moment, they are indeed desperate.

Lest you think that anybody has regained their sanity since then– other than Clinton, who pardoned him– check this out. The Republicans, who, glowing with an absorbed sense of impunity– they can do whatever they want because God told them to– are out for more blood. Especially with scandals brewing in their own cesspools.

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Paul Bernado’s Mom

Marilyn put on more and more weight. She became grotesquely obese. Signs of severe depression were very noticeable. She stopped taking care of the home and the children and withdrew into her own world in the basement of the house. (From the Criminal Library Website, the entry on Paul Bernardo and Karla Homolka, a paragraph on Paul Bernardo’s parents, his mother, Marilyn.)

Spare a thought or two for Paul Bernardo’s mom.

Life is tough. You fall in love with a guy but he’s uneducated so your father forbids you to marry him. You marry some other guy and he cheats on you and beats you. You have an affair with the guy you first fell in love with and have an illegitimate child you name “Paul”. You put on more and more weight and eventually you find yourself living in the basement of your own house, indifferent to everything, wallowing in your own grotesque prison of flesh and disappointment.

You son grows up to be a psychopathic killer and notorious for some of the most shocking crimes in the history of this province. Nice life.

It is for Paul Bernardo’s mom that the tv sings it’s siren song of comforting anesthesia. The one thing I’m sure she has down there, in her basement, is a tv. And all the illusions of life that make everything glamorous and good chunnel into her basement through the cable and make things seem right and true and good.

From the same website (crime library):

Paul used Amway techniques in many facets of his life, not only in sales and business but also in personal relationships.

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Alito’s Joke

The Judicial Committee Hearings on Judge Alito are the funniest in years. The Democrats ask him what his view on abortion is and he says he has no views and even if he did, it would be unethical for the Senate to approve of a candidate to the Supreme Court who could actually explain what he thinks about the law.

The Republicans crawl on the floor and kiss his wounded knee. His wife bursts into tears and flees the room. Oh, those nasty, nasty, vicious, oppressing, liberals!

George Bush admits that he nominated a man with no views at all. He would like Alito to approach each case that comes before the Supreme Court the way a good chef approaches brain surgery.

Is anybody really confused? The Bush Administration knows that it could never nominate the candidate it really wants– James Dobson– to the Supreme Court, so they find a low-profile candidate and tell him to hide his views and then try to pass him off as a moderate and attack the Democrats for being obstructionist and for supporting “activist” judges.

It’s not an activist judge that locks up people without trial? Or has evidence destroyed so DNA testing can’t prove innocent people have been executed?

If abortion ever comes before the Supreme Court, Justice Alito promises to approach the issue with an open mind. I repeat: with an open mind. George Bush did not put him on the Supreme Court to please the Christian Right. How could he have, when clearly Alito has no beliefs about the issue of abortion. None at all. If you have a book on abortion that you could send him, he would appreciate it, because he has never, ever given the slightest thought to the issue of abortion. In fact, if you could send him a doctor who could, in plain English, explain to Judge Alito what abortion is, that would be wonderful and he would be ever so grateful.

I can just imagine him jumping out of his chair after a presentation, “by golly– I was wrong! I think a woman does have the right to terminate a pregnancy.”

That, at least, is the possibility he asks us to imagine. Is this a lie? Would Jesus lie?

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Samuel Alito’s Personal Views

I don’t give heed to my personal views. I interpret the law,” he has said. Washington Post, January 9, 2006

I’m sure conservatives must believe that liberals do the same thing, but, in the debate about Judge Alito, I have to highlight the determination of conservatives to associate their issues with motherhood and apple pie values to sell them to a majority of Americans who probably don’t really share their views.

Do most Americans want to roll back “one man, one vote”? Alito does. He voted against a ruling that prohibited states from awarding congressional delegates on the basis of radically unequally populated districts. So they would map a huge proportion of blacks into one large district and give them one delegate, and then map white neighborhoods into numerous districts, giving them many delegates. Alito did not see a problem.

His defenders could probably rightly argue that the founders of the nation did not intend “one man, one vote”. That is surely true, because the founders of the nation did not expect negro slaves to be voting at all, ever. Is that what Americans want? But that’s what conservatives are really talking about when they claim that they only want “strict constructionists” on the Supreme Court. Why is this idea so holy? Do people seriously believe that humankind hasn’t made any progress since 1776?

Think about it– conservatives want a country that is guided, in law, by the intentions and ideals of rich white men who lived in the 18th century in New England. That’s democracy?

Did the writers of the constitution intend for women to vote? Did they intend for corporations to be held liable for deaths and injuries caused by pollution or defective gas tanks? Did they ever imagine, in their wildest dreams, that any business or organization would ever not have the right to fire homosexuals?

My second gripe about the conservative defense of Alito is this “personal” business. Alito claims that he would never allow his personal views to affect his rulings. He asks us to believe that the Bush administration should really have no reason to prefer him, over, say, Laurence Tribe. Or he wants us to believe that Tribe’s personal views will affect his interpretation of the constitution, but Alito’s will not. What a glorious ego! Is he any good– ask him. Conservatives don’t have an ideology: they make perfect sense. It’s those liberals who hold extremist, radical views.

It would be a great service to all of mankind, and to the cause of truth in general, if everyone would just get over this issue and proclaim, loudly from every rooftop, “of course my personal views will affect my judicial actions– that’s what they’re there for”. Because this is pure bullshit. What planet do these conservatives come from? They ask us to believe that all of Alito’s previous positions and policies were all based solely on his amazing and transcendent affinity with the pure law, up there in the heavens, and have never once been sullied with human feelings or passions or preferences. The fact that all of his previous rulings and positions– every single one of them– supported conservative ideology is pure coincidence.

Conservatives seem to believe that it is a transcendent, eternal truth that homosexuality is a willful act of social defiance. It is a transcendent, eternal truth that women’s work is not as valuable as a man’s work. It is a transcendent, eternal truth that black children and white children should not share a classroom.

And somehow they believe that it is judicial “activism” to read, into the constitution, the right of the government to regulate the activities of a woman’s womb.

This would be a joke if this myth were not so insistently parroted by everyone on the right now as they form a magical choir, uniformly singing the praises of “Alito, Alito.” Roll back judicial activism! Rosa Parks– get back to the back of the bus!

And the reason they rejected Harriet Maier so vehemently? Not for her ideology or personal views, surely– which were suspect on abortion or women’s rights. No, no, no– we don’t judge nominees by their “personal views”, no, no, no.

It’s because she didn’t have that mystical, pure affinity with divine law. Or maybe because she was a broad– I don’t know.

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Guilty With an Explanation

Saddam – “guilty, with an explanation.” Why is he on trial in a country that has no government, in the hands of a country that has no legal authorization to hold him, before a judge who was never appointed by any legitimate, democratically elected authority?

Why is Saddam not being tried by the International Court of Justice in The Hague? Because the Americans cannot manipulate the outcome of that court, and because the World Court will not sentence anybody to death. But that is where he should be tried.

And the Americans don’t support the World Court because there are few Americans who could actually be put on trail for war crimes.

If there was ever a particular action by the Americans for which one could say they will probably be sorry for it later, this is it. The court in Baghdad has no legitimacy in the eyes of anyone but the Americans. Saddam is a confirmed psychopath and mass-murderer. The U.S. does not need to manipulate the outcome of this trial, but by pulling strings it will forever raise questions in the minds of people everywhere– especially Moslems– about whether he was ever really quite as bad as the Americans claim he is. Someone will say, the evidence was planted by the Americans. And a reasonable Arab might just nod and say, “could be.”

[2011-05: I was wrong about that. Nobody, even in the Arab or Moslem world, gives a damn about Saddam Hussein. I should have realized that.]

 

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The Dreaded Judge Roberts

For a man with such a reputation, John Roberts took a somewhat ridiculous position at the Senate confirmation hearings on his appointment as Chief Justice of the Supreme Court.

Roberts basically said that he had no over-arching judicial policy. He was a pragmatist. He simply used the methods most appropriate to the case at hand. Therefore, he is unbiased.

On the contrary, by refusing to espouse a particular judicial philosophy, be it “originalist” or “constructionist” or “majoritarian” or whatever, he keeps his options open. If a particular outcome would favor the president’s ability to use torture on those …. what are they? Prisoners of war? No– Bush denies that. Kidnap victims? Whatever– in Guantanamo Bay, then he’ll use it. If he needs a different judicial philosophy to justify arresting 12-year-old girls with French fries, he’ll use that. And if he needs a third philosophy to justify granting gun manufacturers immunity from lawsuits, by golly, he’ll use that. The outcome is always the same: whatever favours conservative political and social policy.

If I were a Senator on the Judiciary Committee, I would have asked this question. Sir, you deny that you have an ideology or a particular philosophical outlook on issues that might come before the Supreme Court. You also deny that it is possible for you to discuss how or why you might rule one way or the other on any particular issue that comes before the court. If you were me, what exactly is it that you would like to know about a candidate for the Supreme Court before voting in favour of his appointment. And how, given that you won’t answer any questions about how you would rule on anything, would we prevent ourselves from appointing a complete idiot to the position?

You mean like Scalia? Or Thomas? Or Rehnquist?

If I had been on the Senate…   this what I would have asked Judge Roberts:

Have you had any contact at all with any poor people in your life?

Given the large number of convictions that have been reversed through DNA testing in the past few years, how can you justify making judgments that make it more difficult– not less– for review of capital cases?

Please describe, if you can, how you made a judgment in favor of “the little guy” at some point or another in your career. You can’t? Not one? Oh– because the “little guy” has never, ever been right in any of the cases you’ve heard…

What can we tell prisoners in Guantanamo Bay to make them feel less upset about being tortured by the good guys, the light of the world, the hope for the future: America?

If you ever travel abroad somewhere, try to imagine something you think you might learn from other people in different cultures? All right– never mind. If you went to Disney Land and it snowed….

I can’t wait to see how conservative Republicans react when the next Democratic president nominates someone to the Supreme Court.

I am sure they will insist that the nominee cannot be asked any specific questions about his or her views on affirmative action, gay marriage, or physician-assisted suicide. No no no. That wouldn’t be right.

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Surfer Insurrection

In the midst of the panic over Hurricane Rita, a little news item caught my interest: as the storm approached the coast of Texas, some defiant citizen went surfing.

Now, I will admit that this was probably not a particularly clever thing to do. It would have been far more clever of the man to hitch a ride on a school bus filled with old people and oxygen tanks and get the hell out of Texas altogether. But, hey, people drink and smoke and vote in favour of having the worst school system in the country, and there’s not too much you can do about it.

The police didn’t feel that way. They arrested him. And they handcuffed him and hauled him away.

Why?

That’s a good question. Did the police think he would cause billions of dollars of property damage? Or that he would be responsible for the deaths of innocent people? Or that he would make off with millions of dollars of illicit gains? That he would eat a French fry on a subway platform? No, that would have made him a tropical storm or a Republican.

I believe that the police arrested him because he refused to obey the most fundamental principle of the good order and peace: he wasn’t afraid.

It is not enough to obey the law. And it is not enough to leave people alone and mind your own business.

The act of surfing in the face of a tremendously fearsome storm headed your way is an act of defiance of a society that believes that order and civility can only be maintained if you and I are afraid of whatever it is the authorities deem to be fearsome, whether it is Arab terrorists, anthrax, taxes, or tropical storms. I believe the police intuitively understood that if this man’s attitude were to spread, the pillars of our exploitive, wasteful, consumerist society would begin to crumble and they, along with their establishment patrons, would all be in big trouble.

Reading too much into this? Maybe. But then, you explain to me why we are arresting people for eating French fries or surfing nowadays, and why the National Guard treated people fleeing Hurricane Katrina to the Superdome as potential criminals as they entered the building, and why the students at Columbine had to put their hands up as they evacuated the building long, long after the two killers had offed themselves?

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Maybe John Roberts

I’ll admit, I was fooled at first.

John Roberts looks like a reasonable man. Oh, does he look reasonable. Read his opinions. He is the model of a modern enlightened logical jurist. Of course, his rulings always end up in favor of the corporations, the police, and the rich and powerful. But the lovely words he uses to get there!

He may be an intellectual giant compared to Clarence Thomas, but he will probably rule exactly the same way on every issue.

Roberts has stated to the Senate Judiciary Committee that he is “no ideologue”. That is about as close to perjury as you get. No– that is perjury. Roberts is either so seriously deluded that he cannot be considered fit for office, or a liar. I say, he is a liar.

[2022-05 Lawrence Tribe has done an excellent piece illustrating, among other things, how a Justice of the Supreme Court could earnestly believe that the mental framework and cultural affiliation of a justice could lead them to conclude that specific rulings on particular issues are “objective” because they congenial to that framework, when we know that the framework itself is the product of implicit bias.]

Mr. Roberts is an extremist, a radical, an authoritarian. Here is the best evidence, aside from all the rulings– I mean, all of his rulings– in favor of corporations and the police: Mr. Roberts was on a panel of judges that heard an appeal of the notorious french fry case from the city of Washington, Hedgepeth vs. Washington.

A 12-year-old girl entered a subway station with French fries. Contrary to the law, she ate a fry. A policeman saw her do this and arrested her. He made her put down the French fry and her backpack and lay down on her stomach. Then he hand-cuffed her.

We are talking about a 12-year-old girl here. Eating a French fry.  A big, burly, powerful policeman.   Handcuffs. I am not making this up.

We’re talking about an psycho adult police officer, who was supposedly trained in something or another. I mean that– psycho. Do you think it’s normal for an adult male to want to handcuff a 12-year-old girl for eating a French fry? Was he trained to assume that a 12-year-old girl could threaten him physically? Does a normal adult male make a strange 12-year-old girl lay face down on the floor while he handcuffs her so she won’t hurt him and flea from the charge of eating a french fry on a subway platform?

Just how many fugitive french fry eaters are there at any given time?

If you dare to defend Judge Roberts’ ruling in this case, it would be as hard for me to argue with you and it would be for me to argue against a Mormon or Scientologist or faith-healer or member of the NRA. You’ve lost your mind.

In detail: the ingenious Judge Roberts ruled that since the interests of the state are served by discouraging juvenile delinquency, the actions of the police were justified. The government may go around and force little girls to lay down on the pavement so they can be handcuffed for eating French fries on subway platforms. That might not seem nice, but that’s just too bad.

[That’s like saying that since the interests of the state are served by discouraging obesity the government may ban fast food outlets from serving French fries. You see, Roberts said that the state was interested in “discouraging juvenile delinquency”. He didn’t say that there was no constitutional requirement to arrest juvenile delinquents– unless it is is in the interests of the state, just as the constitution doesn’t require the government to fight obesity… unless…a state decides that can. March 2011]

There is no exception for common sense, sanity, reasonableness, humanity, compassion, or having a brain. It makes no difference that the girl was 12-years-old. It makes no difference that we live on a planet called Earth that is round and that revolves around the sun. Facts are facts.

That is the world Judge Roberts inhabits. That is a world that makes sense to him because the man, for all his cool, calm, detached manners, has no sensibility at all. He has absolutely no common sense, no humanity, and probably no human feeling. This is a man who grew up in a privileged, insulated environment, and who never in his entire life came face-to-face with the gritty reality of street crime and poverty. He clerked for rich white judges appointed by rich white politicians funded by rich white corporations. When he is confronted by a case of a poor black man who was beaten up by the police after he robbed someone because his family was starving– you never know, might happen–, he’s going to think, in the back of his tiny little brain, “why didn’t he just buy some food?”

You won’t find anything in his biography about military service, volunteerism, missionary activities, or travels to exotic locales. This is a guy who lives in Republican gingerbread houses with gingerbread nannies and gingerbread rules. Twelve-year old girls eating French fries bring disorder and confusion. But Roberts knows better than to say “we like locking up 12-year-old girls for eating French fries.” He can’t say that– it’s too bald and too real. So he says, twelve-year-old girls can become delinquents. Delinquents must be locked up.

Then he says, I’m sorry. I’m so so sorry. I’m really very, very sorry. But the 12-year-old girl must be locked up in a police car and taken downtown and fingerprinted and photographed and detained. That is the kind of thing that is necessary to sustain Judge Roberts’ gingerbread world.

And all they talk about is abortion and voting rights and gay marriage. Even the Democrats.

The Republicans have so skewed the political debate in the U.S. that nobody even questioned the fact that Bush overtly declared that he was going to load the court with conservative partisans, as if that is how appointments to the Supreme Court should be made.

The fact is, abortion (and gun rights) have always been a red herring for conservative politics which is only and ever concerned with preserving the status, wealth, and privilege of propertied white men.

It’s a wedge issue.  The most convincing evidence of this?  Compare the rulings of the same judges (anti-abortion, pro-gun, pro-patriotism) with their rulings on corporate law, workers rights, unions, pensions, investment funds, corporate liability, and so on.  They are absolutely uniform.  Those are the rulings that really matter to Mitch McConnell and his fellow Republican toadstools.

It’s too late. Roberts will be confirmed. He won’t be the worst justice on the Supreme Court, but that’s only because of Clarence Thomas and Antonin Scalia.

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Maybe Not John Roberts

I generally like Bush’s nominee to the Supreme Court. John Roberts is smart, erudite, disciplined, fair, and witty. But I don’t think I’d vote for him. I’d vote for him in five years, after President Hillary Clinton has nominated a couple of moderates ahead of him. I think Roberts would be an excellent right wing justice. He is a heck of a lot smarter than Thomas, and he is not psychotic like Scalia, and he is not even quite as ideological as Rehnquist.

But he is still an ideologue. He just arrives at his ideology through poetry instead of jingoism.

Judge John Roberts is known to admire the views of Henry J. Friendly, who was a judge on the U.S. Court of Appeals in New York, where Roberts served as a law clerk after he graduated from Harvard. And he admired Friendly’s views of the Warren Court, in particular, the way the Warren court made itself available to criminals who claimed that state courts had not treated them fairly. Friendly felt that this was wasting everyone’s time. Friendly– and Roberts–believed that the long delay between a sentence of death and the actual execution of the criminal diminished the effectiveness of capital punishment.

The play on this issue is incredibly instructive. If you read some of Roberts’ opinions on some of these issues, you might think he is reasonable, assured, wise and just. You might believe he weighs all the evidence and comes to a conclusion based only and purely on the merits. And in a just world, he really might be wise, reasonable, and just.

But you cannot extract Robert’s views on the law from the political realities of America in the 1970’s. We are talking about Wallace’s Alabama. We’re talking about Texas, Louisiana, Georgia, Mississippi. We’re talking, for example, about a black woman named Lena Baker being sentenced to death and executed in 1945 for killing a white man after he repeatedly assaulted her. An all-white, all male jury sentenced her to death. Roberts isn’t troubled by it.

Roberts appears to hold the position that, since the woman is not innocent (nobody disagrees that she killed the man), the federal judiciary should not even look at the issue of whether or not she should be electrocuted for the crime because federal courts should not intrude on state jurisdictions. That’s the real-world application of Roberts judicial philosophy. In this case, we don’t “intrude” because…. well, figure it out.

So, Mr. Roberts, you would have permitted the execution of Ms. Baker, and, presumably, you would have rejected Brown vs. Board of Education. And, if I am not mistaken, Texas would still be able to arrest sodomites today.

If fact, Texas can. The Supreme Court may not be as powerful as you think. Texas can throw sodomites in jail, and if they have the money, and if they have good lawyers, and if they have 10 years, they could probably win an appeal.

There’s more…

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Police State

The disparity between rhetoric and reality is now a yawning chasm. America never ceases, for a second, to rhapsodize about freedom and liberty and justice and the American Way. And then, without the slightest inkling of opposition or dissent, casually renews the Patriot Act, making it legal for the government to spy on whoever it wants whenever it wants with impunity, tap your phones, read your mail, or search your home– without even having to tell you that you are under suspicion, without even having to tell a judge.

Nobody knows which way Judge Roberts is going to vote on abortion or environmental regulations (well, actually, we do): this guy has already ruled in favor of the government’s right to hold people prisoner for as long as they like simply by designating them “prisoners of war”.

And Americans run the flag up the pole and salute and sing their anthems, completely unconcerned.

And the police continue to flog the illusion that these police state provisions have helped them catch terrorists. They don’t have a single real terrorist (just a gaggle of impulsive youths who were entrapped) to show for it, but that hasn’t even slowed them down: we need to spy on people to keep America safe.

When this measure was introduced, it included “sunset provisions”, which everyone happily pronounced would ensure that this glaring intrusion on everyone’s civil rights would expire in four years. Just as I always expected, the Republicans are now trying to make those provisions permanent. That is ghastly. That is just maybe the most outrageous act by an outrageous congress. And the Democrats, petrified of being portrayed as intelligent and wise, are rolling over like sheep.

[Last minute correction: most Democrats voted against the bill. That’s actually interesting, because the perception used to be that you could not win re-election if your opponent could accuse you of a lack of enthusiasm for bombing or killing or suppressing civil liberties.]

Why hasn’t a single prominent politician dared to stand up and announce he will oppose government use of torture against prisoners, no matter what the charges? (Actually, John McCain and some other senators have.) Do people really think that that is unpalatable?

I suspect that if, say, John Edwards, made it a prominent feature of a campaign (an early start on 2008), it would set off all kinds of alarms in the White House. Right now, Bush can nudge, nudge, wink, wink, declare that of course he’s opposed to torture, while allowing his staff and officials to carry it out. But if someone prominent were to make it an issue, I have a feeling that Karl Rove would issue immediate instructions: no more torture. It just don’t look good defending it in public, or answering reporters questions — “Mr. Edwards says that he would fire any official involved in any kind of torture– would you, Mr. Bush?”

Then go ahead, George, make a joke about it.

Russ Feingold was the only senator to vote against the Patriot Act. He deserves the medal of freedom but, of course, he’ll never get one.

In fairness, the Senate’s version of the same bill is considerably less draconian. But it’s rather pathetic that anyone would see this version as “enlightened”. We’ll allow the rack, but not the red-hot pokers to our civil liberties.

Added October 5: Judge Roberts, in his hearings before the Senate, declared that the President has the power to order the torture of prisoners, if Congress was “supportive”.

That’s a strange reading. Why would a Supreme Court Justice care if Congress was “supportive” of an unconstitutional act?

Judge Roberts, should the President arrest witches? If Congress is “supportive”…

What Mr. Roberts has really said is that torture is “constitutional” (since a mere Act of Congress could allow it).  I would not be alone in vehemently asserting that it is NOT.