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 ?

[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.

[Loki]

Soldiers already can't be active in politics.

[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.

[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?

[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.

[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.

[earthJoker]

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

According to Gödel, infinitely large.

[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?

[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]

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

[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]

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?

[Aimless]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

[Hazir]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

Roughly, yes.

[LittleFuzzy]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

As far as individuals go, your understanding is correct. There may be some wiggle room arising from noncompliance and penalties for the same but they wouldn't materially alter that understanding. Conglomerate entities like large corporations and NGOs or government might be able to widen that wiggle room to something that is material, and have greater capacity to get the law changed which can alter later decisions though such efforts are constrained from doing anything but altering present or future conditions.

[Dreadnaught]

Exactly, Aimless is correct. We have laws that specify lots of things, EG the definition of various criminal acts. The existence of specific laws doesn't negate the value of judges or regulators. But judges and regulators are not lawmakers and should not hold massive power over society as de-facto lawmakers.

[Aimless]

But I suppose none of this really gets to the heart of the issue of some judges abusing their power to make a mockery of the interpretation and the application of laws. Bit, then again, perhaps that's not really what happened in this case?

[Loki]

You don't think making a ruling based on the assumption that any exercise of majority rights is unconstitutional is not an abuse of power? At the very least, it demonstrates that these judges are incapable of thinking beyond this case and seeing what the implication of this verdict would be if it was allowed to stand. This reminds me of the case in NYC where a court ruled that New York had to spend far more money per student in its school system because the NY constitution grants New Yorkers a right to an education. How one can interpret that constitutional protection to mean that New York, which already spends more than a vast majority of states, should substantially increase its funding is beyond me. And again, what happens to these judges? Absolutely nothing. Why do we even bother to have legislators and executives if the courts can basically do whatever they want with no consequence? In the Michigan case, they even went after the constitution, which is the only document that courts should theoretically be overruled by.

Here's a thought experiment for you: what would happen if a federal court ruled tomorrow that homosexuals do not have the right to vote because God said so? What would happen if this ruling was made by the Supreme Court?

[Aimless]

well there are guidelines for how they should to about interpreting laws and justifying their decisions, aren't there? Would be nice to get a detailed account of this case. The discussion here on the forum doesn't paint a picture of blatant abuse of power, although there are clearly legitimate objections to the decision. I dunno about all cases of majority votes, the natural extension of their reasoning should be all cases of majority votes about laws that were intended to protect minorities as a group or groups.

Re. your other question, I'm not sure what to say. How would you solve it? What if a majority vote deprived homosexuals of voting rights? If your supreme court represents the final arbiter of justice, how would you prevent jackassery on its part? If you want to be able to punish judges then you must be damned clear on what would get them punished or risk shooting your justice system in the foot. Can you do that? I get that there's a problem but I don't really see a clear definition of it, just illustrations of different aspects of it.

[Aimless]

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

http://www.cfequity.org/static.php?p...gory=resources

[Dreadnaught]

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

http://www.cfequity.org/static.php?p...gory=resources

I believe they work in tandem with the teacher's union in our state.

Though I don't see anything in that background that really helps explain much beyond that they spend a decade or two in the courts trying to get more money for schools (even though our state spends just-about the most on education per student in the country).

In other words, they have spent all their time fighting for more money. When money isn't the problem. But that's sort of a side track from the issue we're discussing.

[Loki]

That's the price of having a democracy. Why bother letting people vote when their decisions can be reversed by unelected officials with virtually no chance of reversing those rulings?

Ideally, I'd want a mechanism which rewards judges for ruling in a clearly defensible legal manner and being punished for failing to do so. I like a political system that has checks and balances, and the judiciary simply isn't checked in this country. It can basically do whatever it wants for whatever reason it wants with no consequences. The president can overrule Congress, Congress can overrule the president, and the Supreme Court can overrule both; yet, nothing short of a constitutional amendment, which is incredibly difficult to pass, can overrule the Supreme Court. Even then, there's no way to make sure the courts don't find a way around that amendment. The only practical solution would be to pack the court if the Supreme Court tries this, but that has many negative consequences in itself. The only thing I can think of is to create some other body that decides which kind of cases can actually go to the courts.

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

www.cfequity.org/static.php?page=historyoflawsuit&category=resource s

I'd like to know which legal document gives the judiciary the right to unilaterally decide what a "sound education" costs, and why being one of the highest spenders on education in the country doesn't meet the "soundness" BS they pulled out of their behind. There are certainly political arguments to be made here, and the legislature would be within its right to increase (or decrease) education funding. My problem isn't with the increase in funding, but rather the fact that the courts think they have the right to legislate policy out of thin air.