Who judges the judges?

[Loki]

Court Overturns Michigan Affirmative-Action Ban
By TAMAR LEWIN

In the latest development in the decade-long battle over the University of Michigan’s affirmative action policies, the United States Court of Appeals for the Sixth Circuit on Friday struck down a 2006 state ban on the consideration of race and gender in admissions.

The court’s 2-to-1 ruling, which is likely to be appealed, said the voter-approved ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

Kelly Cunningham, a spokeswoman for the university, said it was too soon to know whether the ruling would lead to a change in admissions policies.

“The university is reviewing the possible implications of the court’s decision, and recognizes that there may be further legal steps as well,” she said.

Michigan’s ban on affirmative action — covering both government hiring and admission to public colleges and universities — was made part of the state Constitution after a 2006 voter initiative that passed by 58 percent to 42 percent. It was known as Proposal 2 and prohibited public institutions from giving “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”

The voter initiative followed two 2003 decisions by the United States Supreme Court, which found that while the University of Michigan could not set quotas for certain racial groups, or give them extra points in admissions, it could consider race or ethnicity as one factor in admissions.

Jennifer Gratz, a white student who was wait-listed at the University of Michigan in 1995 and served as the lead plaintiff in one of the Supreme Court cases, then began the referendum campaign to amend the Michigan Constitution to ban affirmative action. Ms. Gratz was backed by Ward Connerly, a wealthy black Republican who was a former regent of the University of California, and had successfully campaigned for a similar anti-affirmative-action proposition in California in 1996.

Judge R. Guy Cole and Judge Martha Daughtrey of the Sixth Circuit issued the majority opinion on Friday in the case, Coalition to Defend Affirmative Action, Integration and Immigrant Rights v. Regents of the University of Michigan, No. 08-1387. Judge Julia Smith Gibbons wrote a dissenting opinion.

http://www.nytimes.com/2011/07/02/ed...chigan.html?hp

Let's ignore the merits of affirmative actions for now (I personally support a limited version of it). How can any judge who's actually read the constitution claim that it's unconstitutional to create laws that might benefit one ethnic group over another, while saying that it is constitutional to discriminate based on ethnicity? Regardless of the merits of AA, one has to take an enormously broad interpretation of the constitution to arrive at the former decision and an enormously narrow one to arrive at the latter decision. What this comes down to is judges not even trying to pass off their personal views in a convincing legal manner. And they're doing this by ruling a part of the state constitution to be unconstitutional (by federal standards). This means that there's absolutely nothing either the people or the legislators of Michigan can do to punish the judges for their decision (as far as I know, the judges are appointed by the president, with the consent of the Senate, and can only be removed for high crimes and misdemeanors, which a poor ruling does not constitute).

If this ruling stands under appeal, the judges face no consequences. If the ruling is reversed, their career prospects might be slightly harmed. But either way, the consequences to making decisions almost entirely on the basis of personal views are minimal or non-existent. Do we really want to be ruled by a bunch of unaccountable old, Ivy-educated, white men?

[Khendraja'aro]

Maybe, instead of harping on the judges, you could, like, actually propose a better way? One which protects judges from being leaned on but at the same time creates accountability? Have fun doing that.

All I'm seeing here is a knee-jerk reaction on the level of a 10 cent tabloid.

[Loki]

I've been complaining about the unchecked power of judges for years (granted, not here). This is just the latest example. The way I see it, they have no incentive to make rulings based purely on law. And there's no mechanism for anyone to punish them for ignoring law.

[Khendraja'aro]

I've been complaining about the unchecked power of judges for years (granted, not here). This is just the latest example. The way I see it, they have no incentive to make rulings based purely on law. And there's no mechanism for anyone to punish them for ignoring law.

Yes, great. You said that already. Now, in order to be allowed to complain, you also must have an idea of what to make better?

[Hazir]

Yes, great. You said that already. Now, in order to be allowed to complain, you also must have an idea of what to make better?

Well, for starters judges could stop being so blatantly political. Everybody has his political convictions, but by making them public judges are nudged in that direction in their rulings too.

[Khendraja'aro]

Well, for starters judges could stop being so blatantly political. Everybody has his political convictions, but by making them public judges are nudged in that direction in their rulings too.

Great. Now, that's a complaint as well. How do you actually prevent that?

[Hazir]

Great. Now, that's a complaint as well. How do you actually prevent that?

Like, judges not attending political meetings as speakers ?

[Khendraja'aro]

Like, judges not attending political meetings as speakers ?

So, judges are not allowed to have a political life? Good luck with that one.

Besides, what exactly would that accomplish?

[Lewkowski]

Why do I keep missing the threads you start and making my own? =/

Anyway I'll keep my thread open since this one is talking more about judging the judges and not about the merits of the case.

[Hazir]

So, judges are not allowed to have a political life? Good luck with that one.

Besides, what exactly would that accomplish?

Distance from politics is the first step to take on the way to a-political. Slamming down the start of a solution because it doesn t solve the entire problem just puts you in the corner of the extremists.

[Khendraja'aro]

Distance from politics is the first step to take on the way to a-political. Slamming down the start of a solution because it doesn t solve the entire problem just puts you in the corner of the extremists.

I'm sorry, "start of a solution"? And I'm slamming down on such things because
a) it's only addressing the symptoms, not the actual cause and
b) I don't see a viable strategy.

I mean, you enact this. Great. What then? Where do you go from there? And, is this even constitutional? Forbidding someone to partake in politics in general is quite problematic, I dare say.

[Loki]

Soldiers already can't be active in politics.

[Aimless]

So, is this a problem that stems from your judges essentially having the ability to create laws? That is, from your case law system?

[Khendraja'aro]

Soldiers already can't be active in politics.

Is that so? Still, how exactly do you prevent soldiers from having a political opinion?

I mean, you can forbid them from partaking in party politics all you want - the problem is their opinion and not a party affiliation or something.

[Loki]

So, is this a problem that stems from your judges essentially having the ability to create laws? That is, from your case law system?

No, the problem is that law is always sufficiently vague that a judge can usually use it to arrive at any verdict they please (this is doubly true for the Constitution), and they have little incentive to put adherence to law above adherence to their personal views. That's not to say that there's only one way to interpret the law, but I've seen numerous cases where the judges make a mockery out of the law just to satisfy their own personal ideology.

[Hazir]

Is that so? Still, how exactly do you prevent soldiers from having a political opinion?

I mean, you can forbid them from partaking in party politics all you want - the problem is their opinion and not a party affiliation or something.

Is it really so hard to understand that if you keep distance from politics it's just that much harder to get entrenched?

[Hazir]

Constitutionality to me doesn't seem such a big problem as the judiciary is set aside as a different class anyway.

[Khendraja'aro]

Is it really so hard to understand that if you keep distance from politics it's just that much harder to get entrenched?

I'm not sure that there is such a relation. Seems to me a case of the tail wagging the dog. I mean, you don't join a party to create your political opinion. Your political opinion causes you to join a party.

No, the problem is that law is always sufficiently vague that a judge can usually use it to arrive at any verdict they please (this is doubly true for the Constitution), and they have little incentive to put adherence to law above adherence to their personal views. That's not to say that there's only one way to interpret the law, but I've seen numerous cases where the judges make a mockery out of the law just to satisfy their own personal ideology.

Do you know how big the code of law would become if we didn't have "vague" laws?

[Hazir]

I'm not sure that there is such a relation. Seems to me a case of the tail wagging the dog. I mean, you don't join a party to create your political opinion. Your political opinion causes you to join a party.

Yes, you can never make a judge totally unpolitical. People have ideas and convictions. But by letting them join the political arena in any capacity you run a greater risk of those getting entrenched and the judge operating more as an extension of his political affiliation than as an independent judge. Since we're talking about degrees anyway, any shift either way is desirable or objectionable.

[Khendraja'aro]

Yes, you can never make a judge totally unpolitical. People have ideas and convictions. But by letting them join the political arena in any capacity you run a greater risk of those getting entrenched and the judge operating more as an extension of his political affiliation than as an independent judge. Since we're talking about degrees anyway, any shift either way is desirable or objectionable.

Sorry, you still don't convince me that forbidding someone from entering a party has any influence on his political convictions.

[Hazir]

Sorry, you still don't convince me that forbidding someone from entering a party has any influence on his political convictions.

Would that be because I never said that is possible ar all?

[Khendraja'aro]

Would that be because I never said that is possible ar all?

So, on what mechanism do you base your conviction that forbidding someone from entering a party will dampen or lessen his political convictions or not getting them "entrenched"?

Yes, I know, it's a nice hypothesis. Makes some sense. However, it's just a hypothesis. You still have to convince me that it actually works like that in reality.

[Lebanese Dragon]

Yes, I know, it's a nice hypothesis. Makes some sense. However, it's just a hypothesis. You still have to convince me that it actually works like that in reality.

I think to some degree it obviously would, but to a large degree, I think the problems would persist. Like he said a partial solution isn't neccessarily a bad one.

Here's a solution, not a viable one, but a solution: We could measure IQ's at an early age, and have a questionaire for interests of there's, based on those results take those kids in an isolated environment, and educate them purely on matters of ethics, and laws, and international laws, then place them back in society as judges where they are under surviellance and devoid of political goals or values of any party. They may still develop some on their own, once they define society and they will have some sort of values of their own. Anyway that was just a thought excercise.



So the danger we feel is that judges are judging based on their political values, let's just say values in general to be more correct, as oppose to the spirit of the law. I think the best solution is a panel of judges. The most practical viable solution. How we appoint them may need to be changed, so as not to politically stack the panel. If you do that then likely people who are corrupt or misguided on one agenda the others won't be, and so by vote you get what the spirit of the law intended. Not always going to work, but will increase your chances of success greatly (aka unbiased judging).

Also I thought about this more, may have like 5 different panels of 7 judges deciding issues, and they all submit 1 vote way on the matter (depending what the net result was). Then the net vote on that decides the issue.

[Aimless]

Er. What's so outlandish about the notion that publicly committing to a particular party or a specific ideology can induce people to make more politically/ideologically biased decisions esp. when other party members are looking? What's so outlandish about the notion that active politicians will often make decisions that are shaped by eg. their desire to be elected? I think Hazir's idea is an interesting one. I dunno how effective it would be, but reducing the pressure on judges to conform to their party's ideology should be helpful.

[Aimless]

Do you know how big the code of law would become if we didn't have "vague" laws?

How large? Are civil law systems more unmanageable than common law systems? Don't German lawyers and judges manage to get by?

We don't need to control everything by law. When it comes to things we think we need to manage, we need to be clear on what we want to accomplish and why. When in doubt, we can always look at the documents detailing the intent of the legislators and try to deduce the right decisions from that rather than from the past decisions of other drug-addled judges.

Being precise doesn't have to mean being unmanageable, and being "vague" isn't a safeguard against absurdly large codes of law.

[Khendraja'aro]

How large? Are civil law systems more unmanageable than common law systems? Don't German lawyers and judges manage to get by?

We don't need to control everything by law. When it comes to things we think we need to manage, we need to be clear on what we want to accomplish and why. When in doubt, we can always look at the documents detailing the intent of the legislators and try to deduce the right decisions from that rather than from the past decisions of other drug-addled judges.

Being precise doesn't have to mean being unmanageable, and being "vague" isn't a safeguard against absurdly large codes of law.

Did you ever actually look at the text of a code of law? There's a reason why lawyers have to go to university and also have to specialize. You cannot be "precise" in a code of law.

That's what regulations are for.

[Aimless]

Well, my girlfriend's a law student, several of my friends and acquaintances are law students, and our apartment is crammed full of various law books, so yeah I can't really avoid looking at law books (albeit as an amateur). They are very precise. I don't know about the German legal system, but in the Swedish one every effort is made to reduce ambiguity wrt the purpose of a law and the intent of the legislators. From what I've gathered, in the ideal case, given all the relevant facts and sufficient knowledge of the relevant laws and their backgrounds, it should be possible to deduce the outcome (and never mind what some other judge thought somewhere else about a similar case).

I think the German legal system may be similar in its essence. Tbh I think American laws are also relatively precise, they're just a little sabotaged by the rules of their legal game.

Lawyers go to uni and then specialise for many reasons. For example, they need to learn to become ridiculously precise and clear. They need to familiarise themselves with laws and learn what relevant facts must be procured in order to apply those laws (and probably how to go about procuring them). In Sweden they also seem to spend a great deal of time poring over things written by authoritative legal scholars.

Perhaps we're thinking of different things when we speak of "precision"? From your posts I get the impression that you view "precision" (as opposed to "vagueness") as meaning that every conceivable scenario in which a law may be applied is detailed in a book somewhere. I view precision as meaning that the law is very clear in its formulation and in its purpose so that the outcomes of its application to different situations are predictable and reproducible (rather than being contingent on the fickle natures of judges).

Physicists, mathematicians and statisticians also need to go to uni and then specialise. Is it because those disciplines are "vague" to the expert?

[earthJoker]

Do you know how big the code of law would become if we didn't have "vague" laws?

According to Gödel, infinitely large.

[Khendraja'aro]

Again, Aimless. Precision is the area of regulations. Those define precisely what is meant by the laws.

And I also don't believe you. Take a criminal deed. Don't even dare to tell me that you don't have a law which says "5 to 10 years for..." You can't do precise. Because then you'd have to include each and every special case which might or might not happen. And then comes along something you did not include - blam, you're sitting on your prat because the law doesn't cover that special case. Well, damn. Do you honestly want to apply "nulla poena sine lege" just because you want your laws to be "precise"? Or do you realize that you can't cover all the bases and thus write your laws in a more general way - and thus make their intent open to debate?

And yes, physics and maths and other areas are also "vague" in the sense that they don't depicture reality perfectly. I distinctly remember having to explain why our experimental data was different from what theory predicted - several times.

[Aimless]

Again, Aimless. Precision is the area of regulations. Those define precisely what is meant by the laws.

And I also don't believe you. Take a criminal deed. Don't even dare to tell me that you don't have a law which says "5 to 10 years for..."

Sure we do, but how is that vague? This would be vague: "A reasonable number of years for rape-ish shenanigans." Provided that "rape-ish" was poorly defined (allowing prosecutors to claim that Fox rapes people's brains with their articles) and there were no guidelines for determining approximately where on the (undefined) scale the sentence should land (allowing judges to jail everyone at Fox news for 20 years for brain-rape through ignorance). "5 - 10 years" is precise. Otherwise you might have brain-rapers getting sentences of anything between 1 to 150 years. But now we know that you (probably) can't (really) rape brains with articles and even if you could it'd get you between 5 - 10 years.

You can't do precise. Because then you'd have to include each and every special case which might or might not happen. And then comes along something you did not include - blam, you're sitting on your prat because the law doesn't cover that special case.

How does that prevent you from applying relevant laws to a case? If Fox brain-rapes me using atrocious articles typeset in comic sans and the law doesn't mention comic sans or any other typeface then does that mean I can't apply the brain-rape law? Of course it doesn't. It just means that using comic sans isn't a valid reason for increasing Fox's sentence from 8 years to 10 years. In the next revision of the law, that might change.

And yes, physics and maths and other areas are also "vague" in the sense that they don't depicture reality perfectly.

That's not vagueness, it just reflects constraints on accuracy. Accuracy isn't the same as precision. Even with its constraints, physics and maths are both very accurate and precise. Refer back to Hazir's remark about degrees. Physics isn't 100% accurate or precise, but it's a damned sight more of both than talk radio. People don't just study physics at uni to "interpret physics", they also spend a great deal of their time learning a large body of very precise theories and their applications.

You can't have a legal system that's perfectly precise but you can probably have a legal system that's more precise than eg. the one in the US, and you can also have a legal system that has better safeguards against the dangerous consequences of vagueness in laws. Loki's complaint and Hazir's proposal address with the latter, I suppose.