Given all the material to be covered, I did not deal with one additional issue addressed by the NYT over the weekend. It provided some useful coverage of the courts of late. First, it had a series ("Broken Bench") discussing certain town and village courts in New York State which are remarkably lacking in justice -- this includes magistrates who are not even lawyers, or apparently, people who know basic rules of judicial conduct (e.g., generally no ex parte hearings). Second, it discussed the troubling issue of campaign donations to judges, focusing on Ohio.
There is no perfect way to select such appellate judges -- the federal regime shows how political campaign money can influence who is selected as well -- but this underlines the problems with judicial elections. I'd add that who actually knows much about these people? Yes, generally the legal community as well as various political sorts, the latter often the only way in my parts to determine who to vote for when local civil judges run (they supply panels to vote for, including judicial nominees). I don't generally see news coverage, except perhaps an endorsement right before Election Day (and, even then, only in some cases). And, obviously, people are not just voting for legal competency here. This is probably the case even for "retention" elections, another way to target ideological opponents.
One might argue that this is a good thing. Take out the middle man ... but, again, it is quite likely that the ordinary voter will not be the one ultimately involved here. As noted by the author of When Congress and the Courts Collide (on Booknotes over the weekend), something like eighty percent of the voters want to continue electoral campaigns when they are available ... but the same amount simply do not vote (or do not know who they are voting for). This is ridiculous. The numbers are rather low for various lower electoral personnel, true, but not that bad -- and such people are supposed to be "political” (one wonders about the attorney general). There is not a conflict of interest concern, though many are at some point concerned about money in politics generally, when people donate money to a member of Congress.
A bit different when you do so to people you or your group is likely to come in front of in some respect. Thus, I support a more indirect selection process -- people we elect can have some role in choosing judges, but there is a middle man involved. Politics will always be involved somehow, usual cant aside, the current situation reflects past practice (Federalist judges weren't a concern in Jeffersonian America? Taney wasn't held up by Whig senators?) at least to some comparable extent. Indirect selection (including independent commissions) probably helps, especially since there is no direct funding of candidates, or requirements they run like politicians. Furthermore, I do not think the general public is informed enough -- maybe this is possible -- to make current judicial elections credible (even as compared to local legislative races). This strikes me as a particularly troublesome issue.
It is therefore good that the NYT wrote an extended piece on the subject. Justice O'Connor is no fan of judicial elections either ... see her concurring opinion on speech on the judicial campaign trail here. She unlike Justice Kennedy has been "condemning judicial elections across the board" even if in so doing "we implicitly condemn countless elected state judges and without warrant." They both basically said if we allow judicial elections, we are stuck with the negatives: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges." The dissent argued we can balance things, even if in the process speech is limited.
I didn't find that a suitable solution. Anyway, it's the First Monday in October. The indirectly popularly chosen U.S. Supreme Court, now the Roberts Court for the first full term, has begun business once more. In honor of the event, I read the first article in my Cato Supreme Court Review (2005-2006), one on religious freedom by Nadine Strossen. It highlighted a few things that I find particularly striking (and often misunderstood), including the fact that religion is uniquely treated in that it (as compared to many other subjects) is "separated" from the state. Likewise, the ultimate religious favoritism of Scalia should concern some more people on the religious right.
Also, religious liberty is an important part of privacy rights, which pops up in somewhat surprising locales (no funding, no close governmental monitoring, "neutral" strings). Finally, it underlines simplification required to summarize topics in relatively small articles -- religious funding cases pre-2000 were a bit more messy than she suggests and the "libertarian" approach might want to hear a bit more on why people should fund public schools (especially if we are broadly dealing with "conscience" here). Still, a good piece, especially reaffirming the point that religious freedom is more than requiring equal support (or burden) ... and both strands, including guards against excessive mixture, promotes religious liberty.
Surely, it will be more enjoyable than what is next up -- Yoo's defense of executive power, in "honor" of the military detainee bill/law. Yoo is from the "icky" wing of the Cato board, especially as to certain issues. I was going to give one a taste of his arguments, shown from the title on down, but this will leave readers to read the article direct preceding his ... including the parts touching upon the importance of international law (including in the courts) from the very beginning of our existence (e.g., The Treaty Of Paris). It does a better job promoting Cato's understanding that the judiciary's important role -- even in this sphere -- in Madison's words, "the bulwark of our liberties."
I can forgive some of the Cato authors for being a bit too doctrinaire, not quite realizing that cases are group efforts that are likely to be a bit messy. Heck, sometimes, I too wish they were a bit less so, especially in certain areas. But, this selective concern* for liberty is a step to far, at least for "libertarians."
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* This is the core problem with Foley-gate. This double standard. I am a bit loathe to speak of him as a "pedophile," since that sort of thing will likely to backfire next time some camp counselor is found to have been "too close" to their charges. It brings images of sex with ten year olds not sexual harassment of sixteen year olds.
But, was not this age/power (and icky) deal supposed to be what was so horrible about Clinton/Monica (21)? Amazingly, however, Ann Coutler isn't on the front lines (ala "presidential kneepads") bashing Foley. In fact, Foley was the chair of a committee on mistreating children, and (irony alert) might have violated an Internet harassment law he himself sponsored that made sure all those under 18 (not 16) were covered. And, how can we not trust Republicans to protect our kids?! Liberals, sure ... they just love promoting this sort of thing. Again, if Clinton was hypocritical with his support of broad definitions of harassment, what of these people? Love how Tony Snow tried to belittle the issue.
I continue find it creepy that these people are our leaders. Michael Chertoff, sorry, looks a bit creepy ... but, he might be a big teddy bear next to the rest of them. Randy Rhodes, who harks from Florida and dealt with the guy when she did radio down there, also had some interesting things to say today on Air America.