Category Archives: ethics

Constituents

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Who are a Federal judge’s—at any level of the judicial hierarchy—constituents?  I asked this question of a number of folks, and the most cogent answer I got was this: “in order, the law and justice.”  Even that answer, though, is only about one-third right IMNSHO.

Here is the first oath of office Federal judge and Justice must take; it’s the same as any Congressman must take.

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Here is the additional oath of office that a Federal judge or Justice must take.  Notice that his prior oath does not expire (no oath can); this oath adds to it.

I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judicial position] under the Constitution and laws of the United States. So help me God.

Here is what Article I, Section 1 of our Constitution says about legislative authority.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Thus, a Federal judge’s constituency begins and ends with the Constitution.  Full stop.  His constituency does not extend to “the law,” only to the supreme Law of the Land.  All other law, which can be enacted only by the people’s elected representatives in the legislative and executive branches under our system of governance, must be subordinate to and compatible with the Constitution.  A judge’s duty here is to reject a law that is not compatible, that is unconstitutional.  Or on its constitutionality, to apply it as it’s written.  His oaths of office demand he defend the Constitution, and that defense enjoins him to not write law, not modify law, only to apply it.  To this end, a judge’s interpretation of a law is only for the purpose of applying it as written, not to “interpret” it to his convenient end.

Not “justice,” either.  What is justice, what is just, are social and political determinations, and those determinations, too, can be made only by We the People, directly or through those elected representatives of ours.  A judge can only apply the law before him as it is written (or strike it); he cannot judge a case according to his own sense of justice or social mores.  He certainly can rail against the injustice (from his sense of it) of a ruling to which the law before him drives him—and he should—but he can rule in no other way but what the law itself requires.

This makes especially reprehensible the 4th Circuit’s ruling on President Donald Trump’s immigration Executive Order.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No 78.

Mandatory Minimum Sentencing

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Heather Mac Donald, in an opinion piece in a recent Wall Street Journal argued that Attorney General Jeff Sessions is getting a bad rap over his decision to reinstate emphasis on mandatory minimum sentencing and that those minimum sentencing requirements themselves get a bad rap.  She’s right on both counts.

Sessions is being smeared as being a racist over his decision because most of the criminals impacted are black—never minding that most of the crimes involved are committed by blacks, and against blacks to boot (another part that’s carefully elided by the smearers).  The sentencing guidelines (for that’s all that they are; they are not mandatory, for all that timid trial and appellate judges make them so out of their loathe to sentence based on the actual circumstances out of rank fear that they might get overruled by a higher court) also get a bad rap because Sessions’ decision is aimed at serious and violent crime commissions, not the small fry.  The ones aimed at with Sessions’ ruling are the drug dealers, murderers (acknowledging the considerable overlap between the two), assaulters, home invaders, and the like.  Not at risk from minimum sentencing “requirements” are the non-violent, the petty, the drug users, and so one.

As Mac Donald put it in defense of minimum sentence requirements,

Mandatory minimum sentences are a valuable tool for inducing drug dealers to cooperate with prosecutors in identifying fellow members of large drug-trafficking networks.

One small aside on that: mandatory minimum sentences also are valuable tools by prosecutors for intimidating an unconvicted defendant into plea-bargaining independently of his guilt or innocence.  Both sides of this question are supported only by extensive anecdotes, though, not demonstrated trends.

For all that, say Mac Donald is right on her main point.

But her point is irrelevant.  Mandatory minimum sentences are wrong on their face.  Sentences should be handed up by juries, not by judges or by sentencing checklists in a computer.  If I beat my wife and sell drugs to a friend a few blocks away, I’m committing crimes against our two neighborhoods—mine and my wife’s and that of my friend’s—not against New York City or Washington State, or even my home State of Texas.

My crimes are against the local communities in which my friend and my wife and I live, and I should be sentenced like I’m tried: by a jury of my peers drawn from my community and my friend’s, the communities against which my crimes were committed, i.e., the district wherein the crime shall have been committed.

Sentencing requirements, whether mandatory or guideline, destroy that capacity, they destroy the local community’s ability to decide for itself what is the appropriate punishment to be meted out for any crimes committed against it.

“Full Responsibility”

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Secretary of State Rex Tillerson has said, regarding leaks to the New York Times tabloid and others,

We take full responsibility for that and we obviously regret that that happened.  With respect to the release of information inappropriately…certainly we condemn that.

The same sort of questions I’ve put to Hillary Clinton applies here: what are you going to do with that “responsibility” you’ve taken?  What concrete actions will you take?

How’re the criminal and civil investigations into the leaks going; what progress are you making in identifying the criminals and the miscreants?

Assuming you find any, what will you do with them?

Mike Flynn Demurs

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Regarding ex-NSA chief Lt Gen Michael Flynn’s (USA, Ret) refusal to “cooperate with” Congress’ subpoena to testify before the Senate Intelligence Committee and to provide subpoenaed documents to it: he says he’ll invoke his 5th Amendment right not to testify against himself.

It’s certainly his right to invoke his right not to testify against himself, and no conclusion regarding his guilt or innocence of any crime can be drawn from that.  Nor should one be.

However, he has no right not to appear before the committee and testify.  The committee should send the capital police to get him and bring him before the committee to testify, even if against his will: his will has no bearing here; the subpoena has not been quashed.  Then, the committee members should put their questions to him, one by each, putting each question onto the record and thereby putting each of his 5th Amendment invocations similarly on the record.  The committee also should ask for those documents, one by each or by category, requiring him to invoke the 5th each time there.

The committee also should obtain and execute a search warrant to get those documents.

No more delays.  No more stalling.

Safe Spaces and Clarity of Thought

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As The Wall Street Journal pointed out in an interview with Northwestern University’s President Morton Schapiro, the University of Chicago’s President Robert Zimmer has a view of the nature of safe spaces and the relationship between them and collegiate education.

incoming freshmen [should expect] to expect discomfort—not safe spaces—on his campus.

Schapiro, instead, wants to coddle his pupils as though they’re still two years old.

Northwestern President Morton Schapiro takes a gentler approach.

He believes that because learning is frequently uncomfortable, students need safe spaces—which for him means places where people who share an identity can retreat, relax, and recoup.

Of course, they already have that: their dorm rooms, where students of like mind gather along with the room’s occupants; the school’s student unions, where several groups gather, each one consisting in the main of students of like mind.  Forcing all of that into all of the other places that a school administer deems must be “safe spaces” destroys safety for all—especially those of whom demanders of “safe spaces” disapprove.

And Schapiro had this—and he was serious:

That might mean sharing a meal with students who are all of the same color or religion or watching a movie in a house designated for students from a certain background.

Back to segregation and separate but equal.

The interview continued in that vein.

In the end, though, there isn’t any safer space than the ability to think clearly, even if clear thinking often is uncomfortable.  School administrators who cannot understand both the difference between uncomfortable and unsafe and the critical dependency between safety and clarity of thought are unfit to sit in those chairs.  Their own inability to think clearly renders their entire campuses unsafe spaces.