The LA Times Takes Congress To Task ...
... and fails. In an op-ed in the LA Times today the editors have decided to go off on a tangent. Well, not really, but much like the vaunted New York Times, their understanding of jurisprudence is sub-par, at best.
CONGRESS CAN BE PERSNICKETY about its prerogatives, real and imagined. But its reverence for the separation of powers, so flagrantly on display in its continuing snit over the FBI's search of a House member's offices, goes by the wayside when it's Congress trespassing on someone else's turf.
Take the repeated attempts by Congress to micromanage the work of the federal courts. Conservatives have tried without success to strip courts of jurisdiction over hot-button issues such as same-sex marriage and the constitutionality of a federal law against it. More recently, some members have threatened to prohibit the Supreme Court from citing the decisions of foreign courts in its opinions.
First, let's be clear on what the marriage amendment was about. It was not a "ban" on gay marriage. It was an attempt, as evident by its language, to constrain the judiciary from "invoking" rights not present within the Constitution. And while the Ninth Amendment clearly means to include non-enumerated rights, marriage isn't one of them. Marriage isn't a right. It's an institution. It's a ritual or a rite, but it's not the sort of "right" that the activists and advocates for it contend. As for tyhe foreign law question, it's mere invocation in a decision, in my opinion, would be enough to warrant removing the judge from the bench. Jurists are to decide the law based on our own, not those from foreign nations. It's inclusion causes me to become most irritated. As someone who has never studied law formally, but has done so "on the side," I find it appalling that the jurists in this nation--on the federal courts, no less--can't seem to decide cases without looking to other nations for guidance.
Fortunately, a member of the court who might be expected to welcome the last proposal has come out against it. Justice Antonin Scalia recently delivered a lecture on the separation of powers that applies to other misguided initiatives in Congress.
"No one is more opposed to using foreign law than I am," Scalia told a Capitol Hill luncheon last month. "But I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions." He asked Congress to "let us make our mistakes, just as we let you make yours."
And while Justice Scalia is our personal favorite, we do tend to disagree on this point. The mistakes that Congress makes can be undone. Another law revoking the former can be passed. They can outright revoke a law. But for the Supreme Court, and the whole of the federal court system for that matter, can't undo a decision. As least not as easily as one might imagine. Despite all the hoopla over Roe, including even Justice Ginsburg's complaints that it needs to be reexamined, it has yet to be overturned. The same goes for case after case of jurisprudence gone awry. In Lawrence, three separate justices cited foreign law in their decision, including former Justice O'Connor. Precedent set--stare decisis--is not so easily turned over, and the ramifications of such are carried beyond just the one decision. Unlike acts of Congress, which can be struck down by the courts, amended or revoked by Congress, precedent has a funny way of creeping up, and screwing up future decisions. Justice Scalia is nearly prophetic in a few of the decisions he has written where he has stated that this decision or that decision will come back to haunt the court.
Congressional dissatisfaction with the judicial branch is old news in Washington. It ranges from complaints voiced by Sen. Arlen Specter (R-Pa.) that the court has questioned Congress' "method of reasoning" to griping by other members of Congress about requests for judicial pay raises. The latest attempt to muscle the courts is a proposal by Sen. Charles E. Grassley (R-Iowa) to create an inspector general for the judiciary who would watchdog judicial ethics at all levels. A similar House bill by Rep. F. James Sensenbrenner Jr. (R-Wis.) would apply only to lower-court judges. The inspector general idea would unnecessarily entangle the legislative branch in the day-to-day supervision of the judiciary.
While I dislike the idea of an inspector general--a notion that would have been made plainly by the Framers if it were a true problem they felt needed addressing--I am apt to agree that some sort of oversight may need to be done. HOWEVER, this notion is a foolish one. And it is precisely the reason why we do have a separation of powers within the framework of the Constitution. No one branch was to have any sort of undue influence over the others. And depending on the powers such an inspector may have, that line may very well be crossed at some point.
The Supreme Court is not above criticism, and Congress has the authority to define the jurisdiction of various federal courts, to decide how much money should be appropriated for their operation and even to impeach and remove judges who abuse their public trust. Congress also is free to regulate or even outlaw some of the practices that have given rise to the inspector general idea — such as the attendance by judges at lavish "seminars" paid for by foundations linked to special-interest groups.
Whiff number two: those seminars are paid for by those foundations, and have nothing to do with a request in the raise of pay for judges. Second, there is nothing wrong with them conducting such seminars if they happen to be a solid voice on a certain issue. For example, Justice Scalia's scathing critique of religious or abortion issues are positively must-reads because he lays out the legal argument so well. People can grasp what he is saying much clearer on those specific issues. If the National Right-To-Life Campaign invited him to speak about the legality of Roe, and other subsequent decisions, why should he be prevented from doing so? The last time I checked, we still have freedom of speech int he country, and he is only exercising that right.
But even in areas in which Congress can set rules for the judicial branch, it's the better part of wisdom for legislators to tread softly. Conservatives in Congress have dismissed that advice when it has come from "good government" groups and liberal lawyers; maybe it will sink in when it comes from their hero, Justice Scalia.
Invoking Justice Scalia's name and his thoughts regarding foreign law doesn't help the Times' case against the inspector general. He did not come out against it, and the quote seems more "cherry-picked" than anything else. Yes, I agree that the courts have made mistakes, and will make mistakes from time to time. Do they need an ombudsman of sorts? I don't think so. But then again if Congress were to do it's job--that being the ability to hold jurists on the federal bench accountable for soem of their wacky decisions (Ninth "Circus" Court, anyone?)--then the idea of an inspector general may not have even popped up in the debate. But it has.
The Times seems to understand, to a point, the idea of separation of powers. An inspector general, answerable to Congress, could put unwarranted and potentially illegal influence over the federal courts. It would be much better if Congress would do it's job rather than trying to pass this off on someone else, waste the taxpayers money on the idea, and create another aspect of bureaucracy that could, very well, make the courts even more politicized than what they already are.
Publius II
... and fails. In an op-ed in the LA Times today the editors have decided to go off on a tangent. Well, not really, but much like the vaunted New York Times, their understanding of jurisprudence is sub-par, at best.
CONGRESS CAN BE PERSNICKETY about its prerogatives, real and imagined. But its reverence for the separation of powers, so flagrantly on display in its continuing snit over the FBI's search of a House member's offices, goes by the wayside when it's Congress trespassing on someone else's turf.
Take the repeated attempts by Congress to micromanage the work of the federal courts. Conservatives have tried without success to strip courts of jurisdiction over hot-button issues such as same-sex marriage and the constitutionality of a federal law against it. More recently, some members have threatened to prohibit the Supreme Court from citing the decisions of foreign courts in its opinions.
First, let's be clear on what the marriage amendment was about. It was not a "ban" on gay marriage. It was an attempt, as evident by its language, to constrain the judiciary from "invoking" rights not present within the Constitution. And while the Ninth Amendment clearly means to include non-enumerated rights, marriage isn't one of them. Marriage isn't a right. It's an institution. It's a ritual or a rite, but it's not the sort of "right" that the activists and advocates for it contend. As for tyhe foreign law question, it's mere invocation in a decision, in my opinion, would be enough to warrant removing the judge from the bench. Jurists are to decide the law based on our own, not those from foreign nations. It's inclusion causes me to become most irritated. As someone who has never studied law formally, but has done so "on the side," I find it appalling that the jurists in this nation--on the federal courts, no less--can't seem to decide cases without looking to other nations for guidance.
Fortunately, a member of the court who might be expected to welcome the last proposal has come out against it. Justice Antonin Scalia recently delivered a lecture on the separation of powers that applies to other misguided initiatives in Congress.
"No one is more opposed to using foreign law than I am," Scalia told a Capitol Hill luncheon last month. "But I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions." He asked Congress to "let us make our mistakes, just as we let you make yours."
And while Justice Scalia is our personal favorite, we do tend to disagree on this point. The mistakes that Congress makes can be undone. Another law revoking the former can be passed. They can outright revoke a law. But for the Supreme Court, and the whole of the federal court system for that matter, can't undo a decision. As least not as easily as one might imagine. Despite all the hoopla over Roe, including even Justice Ginsburg's complaints that it needs to be reexamined, it has yet to be overturned. The same goes for case after case of jurisprudence gone awry. In Lawrence, three separate justices cited foreign law in their decision, including former Justice O'Connor. Precedent set--stare decisis--is not so easily turned over, and the ramifications of such are carried beyond just the one decision. Unlike acts of Congress, which can be struck down by the courts, amended or revoked by Congress, precedent has a funny way of creeping up, and screwing up future decisions. Justice Scalia is nearly prophetic in a few of the decisions he has written where he has stated that this decision or that decision will come back to haunt the court.
Congressional dissatisfaction with the judicial branch is old news in Washington. It ranges from complaints voiced by Sen. Arlen Specter (R-Pa.) that the court has questioned Congress' "method of reasoning" to griping by other members of Congress about requests for judicial pay raises. The latest attempt to muscle the courts is a proposal by Sen. Charles E. Grassley (R-Iowa) to create an inspector general for the judiciary who would watchdog judicial ethics at all levels. A similar House bill by Rep. F. James Sensenbrenner Jr. (R-Wis.) would apply only to lower-court judges. The inspector general idea would unnecessarily entangle the legislative branch in the day-to-day supervision of the judiciary.
While I dislike the idea of an inspector general--a notion that would have been made plainly by the Framers if it were a true problem they felt needed addressing--I am apt to agree that some sort of oversight may need to be done. HOWEVER, this notion is a foolish one. And it is precisely the reason why we do have a separation of powers within the framework of the Constitution. No one branch was to have any sort of undue influence over the others. And depending on the powers such an inspector may have, that line may very well be crossed at some point.
The Supreme Court is not above criticism, and Congress has the authority to define the jurisdiction of various federal courts, to decide how much money should be appropriated for their operation and even to impeach and remove judges who abuse their public trust. Congress also is free to regulate or even outlaw some of the practices that have given rise to the inspector general idea — such as the attendance by judges at lavish "seminars" paid for by foundations linked to special-interest groups.
Whiff number two: those seminars are paid for by those foundations, and have nothing to do with a request in the raise of pay for judges. Second, there is nothing wrong with them conducting such seminars if they happen to be a solid voice on a certain issue. For example, Justice Scalia's scathing critique of religious or abortion issues are positively must-reads because he lays out the legal argument so well. People can grasp what he is saying much clearer on those specific issues. If the National Right-To-Life Campaign invited him to speak about the legality of Roe, and other subsequent decisions, why should he be prevented from doing so? The last time I checked, we still have freedom of speech int he country, and he is only exercising that right.
But even in areas in which Congress can set rules for the judicial branch, it's the better part of wisdom for legislators to tread softly. Conservatives in Congress have dismissed that advice when it has come from "good government" groups and liberal lawyers; maybe it will sink in when it comes from their hero, Justice Scalia.
Invoking Justice Scalia's name and his thoughts regarding foreign law doesn't help the Times' case against the inspector general. He did not come out against it, and the quote seems more "cherry-picked" than anything else. Yes, I agree that the courts have made mistakes, and will make mistakes from time to time. Do they need an ombudsman of sorts? I don't think so. But then again if Congress were to do it's job--that being the ability to hold jurists on the federal bench accountable for soem of their wacky decisions (Ninth "Circus" Court, anyone?)--then the idea of an inspector general may not have even popped up in the debate. But it has.
The Times seems to understand, to a point, the idea of separation of powers. An inspector general, answerable to Congress, could put unwarranted and potentially illegal influence over the federal courts. It would be much better if Congress would do it's job rather than trying to pass this off on someone else, waste the taxpayers money on the idea, and create another aspect of bureaucracy that could, very well, make the courts even more politicized than what they already are.
Publius II
posted by Syd And Vaughn | 12:00 AM
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