. . . the debate over the selection of judges is really keyed, I believe, to
what role you see the judiciary playing. And it is important to understand that
the left and the right in American politics see the judicial role very
differently.
First, the left sees judges as the action arm, or at least an impregnable
bastion of defense in support of progressive notions. The action arm can be seen
in areas such as abortion, religion in the public square, criminal procedure,
the right to bear arms, and the death penalty. The impregnable defense phase can
be seen when the state supreme courts, as is almost routinely the case, declare
unconstitutional any kind of tort reform passed in the states. It can be seen at
the federal level when federal term limits are declared off limits. It can be
seen when any type of reform to class action lawsuits is attempted.
Second, on the right you have
individuals who see judges as aloof from politics,
who believe that a judge’s role is to determine the original understanding
of the instrument before it, be that a contract, a statute or a constitution.
Third, it is important to understand that in the United States the legal culture
is thoroughly and completely controlled by the left. This is true in the law
schools. It is true in the American Bar Association. The legal culture,
accordingly, is a culture that is hostile to the notions of judicial
traditionalists. Thus, and this is important to understand when you’re
thinking about judicial selection, blind draws into the country’s legal pool
will produce by and large adherents of the left’s view of what a judge
should be. Fifth, this split is new between the right and the left. I believe
that for 150 or perhaps even 160 years in this country Republicans and Democrats
had a
similar view as to what judges did and didn’t do. But that has changed. And
I think it is important that we understand this.
Justice Clifford Taylor
what role you see the judiciary playing. And it is important to understand that
the left and the right in American politics see the judicial role very
differently.
First, the left sees judges as the action arm, or at least an impregnable
bastion of defense in support of progressive notions. The action arm can be seen
in areas such as abortion, religion in the public square, criminal procedure,
the right to bear arms, and the death penalty. The impregnable defense phase can
be seen when the state supreme courts, as is almost routinely the case, declare
unconstitutional any kind of tort reform passed in the states. It can be seen at
the federal level when federal term limits are declared off limits. It can be
seen when any type of reform to class action lawsuits is attempted.
Second, on the right you have
individuals who see judges as aloof from politics,
who believe that a judge’s role is to determine the original understanding
of the instrument before it, be that a contract, a statute or a constitution.
Third, it is important to understand that in the United States the legal culture
is thoroughly and completely controlled by the left. This is true in the law
schools. It is true in the American Bar Association. The legal culture,
accordingly, is a culture that is hostile to the notions of judicial
traditionalists. Thus, and this is important to understand when you’re
thinking about judicial selection, blind draws into the country’s legal pool
will produce by and large adherents of the left’s view of what a judge
should be. Fifth, this split is new between the right and the left. I believe
that for 150 or perhaps even 160 years in this country Republicans and Democrats
had a
similar view as to what judges did and didn’t do. But that has changed. And
I think it is important that we understand this.
Justice Clifford Taylor
No, that's the modern take.... That it's a "living document". Judges
weren't supposed to create laws.
I'
m a strict Originalist.
OUr system is so fucked up because there are only two methods of
correcting errant judges - amending the Constitution (which apparently
doesn't work) or appointing successor judges who will rule differently.
Our Republic is being subverted by judges making laws rather than
interpreting them.
You know absolutely nothing about the English legal system then, Ragnar. And i've usually thought you to be knowledgeable and intelligent.
When you get a clue, I'll start paying to your arguments again.
This may provide you with a starting point: http://en.wikipedia.org/wiki/Common_law
You're so wrong on so many levels. The statutory law that we have in the US started out as codification of the common law alread in existence. But I know you can read.
I know what you've been taught. And I know how the system has been perverted
by lawyers. The system is broken. The way to fix it is by having strict
originalists on the Supreme Court, and get rid of the notion of stare decisis.
Instead of relying on a year or two of law school, you should really talk to some practicing lawyers, or better yet, a judge or two.
I had a fascinating talk with a local judge about this exact problem....
And believe me, I got an earful of behind the scenes knowledge.
Instead of relying on a year or two of law school, you should really talk to some practicing lawyers, or better yet, a judge or two.
I had a fascinating talk with a local judge about this exact problem....
And believe me, I got an earful of behind the scenes knowledge.
Right, you're going to pit legal training by many, varied individuals, as
well as LEGAL EXPERIENCE (and I DO have conversations with judges and lawyers,
FTR, all the time)
against your single conversation with one person who holds a bias against the common law system.
If you think the alternates are better, move to the EU. You'll see just how effiient their legal system is over there.
against your single conversation with one person who holds a bias against the common law system.
If you think the alternates are better, move to the EU. You'll see just how effiient their legal system is over there.
Right, but Ragnar here is advocating we dump 1,000 years of judicial tradition
and move to a civil law legal system -- the kind they employ in the EU and
most other parts of the world.
I was assuming you were talking about the U.S. legal system.
I don't really know about how law, and lawmaking works, what I do know is that our system seems to run just fine, until you want justice, that seems to be a whole other flock of seagulls
You think the system is working as is?
You think there is anything elegant about the system right now?
Do you think you're really going to get a fair trial here?
Remember, rights are not derived from government. The government has rights at the consent of the governed.
I for one find that most of the judicial findings as of late are out of touch with the American public.
We need to remove our consent from what they are trying to achieve.
Using the judiciary to rule by dictat is NOT what our Founding Fathers intendend.
You think there is anything elegant about the system right now?
Do you think you're really going to get a fair trial here?
Remember, rights are not derived from government. The government has rights at the consent of the governed.
I for one find that most of the judicial findings as of late are out of touch with the American public.
We need to remove our consent from what they are trying to achieve.
Using the judiciary to rule by dictat is NOT what our Founding Fathers intendend.
Using the judiciary to rule by dictat is NOT what our Founding Fathers
intendend.
The judiciary doesn't rule by dictate; however, by adopting England's legal system as opposed to the civil law system (or whatever that third type of legal system is), they certainly did intend to have things working as the legal system now functions.
They COULD have chosen to employ a civil law system in the courts and laws, but they did NOT.
That, to me, is much more indicative of the founding father's intent. (And before you go rattling off that civil law systems weren't around at the time, that's another load of organic pony manure; civil law existed back in the time of the Roman Empire.)
The judiciary doesn't rule by dictate; however, by adopting England'sReally?
When the Supreme Court rules, it's the law of the land.... Abortion? Roe vs. Wade. Yet. Article One, Section One of the Constitution says that ALL legislative authority is VESTED in the Congress.
The ruling on Roe v. Wade should appy to that case an no one else! Yet, it's considered the law of the land.
We've all been duped into thinking that precendent is law.
Sir William Blackstone, the famous English jurist and author of
Commentaries on the Laws of England, explained that where the same
points come again in litigation – what we might call the same fact
pattern – it is proper and helpful for courts to look to the former
cases and give weight to the former decisions for two reasons. Firstly,
this helps to keep “the scale of justice even and steady” by
promoting
stability and a reasonable expectation in the community of how
such a fact pattern will be adjudicated. Secondly, Blackstone applauds
the use of precedent in that it requires a judge to be mindful that he
is to decide cases “not according to his own private judgment, but
according to the known laws and customs of the land.” Blackstone
says that judges are “not delegated to pronounce a new law, but to
maintain and expound the old one.”
So far, so good. Precedent, according to Blackstone, is a good thing.
It serves some useful purposes.
But that's not what's happening today.
Now you're just being absurd. What you're asking for is for every similar
case to be litigated, even where the fact pattern is exactly the same.
If the founding fathers didn't intend for a common law system of justice, they would have chosen civil law or that other one and written it into the Constitution. But they didn't. They wrote and continued with the English tradition of judicial system, common law. And yes, the definition of common law is that courts end up creating law. Just b/c Congress is vested with legislating doesn't mean that law isn't created via other methods.
POTUS has the ability to create law. All THREE branches of the US Gov't are vested with the ability to create law. Congress is the only one that legislates it. POTUS and SCOTUS have a different way of creating law but they're still able to create law and of equal value as that of Congress.
Checks & balances.
Who would've thunkit?
If the founding fathers didn't intend for a common law system of justice, they would have chosen civil law or that other one and written it into the Constitution. But they didn't. They wrote and continued with the English tradition of judicial system, common law. And yes, the definition of common law is that courts end up creating law. Just b/c Congress is vested with legislating doesn't mean that law isn't created via other methods.
POTUS has the ability to create law. All THREE branches of the US Gov't are vested with the ability to create law. Congress is the only one that legislates it. POTUS and SCOTUS have a different way of creating law but they're still able to create law and of equal value as that of Congress.
Checks & balances.
Who would've thunkit?
Actually found the full interview: http://youtu.be/cPmKLl12s25c
I read a transcript of that interview a little while ago. He does a fairly decent job of explaining the situation.
I think it's extraordinarily difficult to argue against gay marriage without eventually coming down to either a religious or prejudicial bias being exposed.
there's another bias that exists. Some people believe that society's job is to create and protect families and to promote that above all else. They believe that anyone who doesn't create a family doesn't deserve "extras" from society.
However, they get into a murky place when you talk about why senior citizens who are past the ability to reproduce are allowed to marry... ;)
(they'll argue that a childless couple could theoretically change their minds, adopt, etc)
In the end, these people also generally believe that sex is immoral if "committed" outside of a marriage and if it is not between a man and woman, b/c it somehow doesn't promote society's needs. I know a number of people like this... Basically, they won't admit that they're anti-homosexuality. (they are all kind and friendly and nice to homosexuals on an individual basis and would call the police or maybe even physically intervene if a gay basher got violent, but they wouldn't want a gay guy running their son's boy scout troop.)
It's a more subtle level of homophobia, I guess.
I think it's extraordinarily difficult to argue against gay marriage
without eventually coming down to either a religious or prejudicial
bias being exposed.
I think it's important to make a distinction between being against gay marriage and being against the *legalization* of gay marriage.
It really should be as simple as: if you don't like the idea of gay marriage, then perhaps you should consider marrying someone of the opposite sex.
The idea of the government getting involved and deciding who we can and cannot marry, simply makes no sense. If my religious or prejudicial bias dictates that I should marry a big blue frog, what business does the government have saying otherwise? It comes back to the same principle of liberty that we've come back to over and over again here: if it doesn't have any impact on the freedom of others, the government needs to stay OUT.
It's a bad idea to codify someone's moral framework into laws, irrespective of whether you agree with them.
Looks like activist judges at their worst:
http://writ.news.findlaw.com/colb/20100818.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+FindLawWrit+(FindLaw's+Writ+-+Legal+Commentary)
Yeah, I was strictly speaking of legal marriage.
I don't care at all about the religious implications of marriage, one way or another.
And there's another term that grates on my nerves... 'activist judges'. That expression has come to mean (to me) 'any judge whose judgement I disagree with). It's a vacuous expression anymore.
Actually, it means any judge who overturns a longstanding legal principle based on their own personal opinions...
aka "legislating from the bench" -- something they're not supposed to do (but
do anyway)