Tuesday, February 24, 2009

I Don't Think That Word Means What You Think It Means

This is easily the dumbest thing I've read this month:

For at least a decade Republicans have been shrieking and ranting about activist judges. Judges who will ignore law and precedent. Who will interpret our laws and our Constitution instead of upholding them. We all know the truth is that they just want judges who will rule in their favor.

So isn't it interesting to see Governor Tim Pawlenty suggesting that former Senator Norm Coleman's best chance of weaseling his old job back is via activist judges overruling Minnesota law and precedent?
[emphasis mine]

(Blockquoted) "I know some people have grown weary of this, but I think Norm Coleman has a good chance to get this turned over in the courts . . . The bulk of the dispute is over absentee ballots and which ones should be in and which ones shouldn't be in, or shouldn't have been in to begin with. Coleman is appealing about 3800 ballots, and Franken allegedly has about 900 ballots they're going through. The universe that they're dealing with is less than 5000 ballots, and Franken leads by 225 or so. So there are still a lot of ballots to sort out. But we may not know for a month, or for several months . . . It puts [Minnesotans] at a disadvantage when you only have one senator, and major legislation is being considered and debated. I would appoint someone temporarily, but the law doesn't allow it, I can only appoint someone for a permanent vacancy." [emphasis added by moron] (National Review)

It should surprise nobody that I found this nugget on the compendium of local left-wing lunacy, Minnesota Progressive Project (or as I like to call it "MN PP"). I actually think that the creation of this blog is a good thing, for I am certain that at some future time, the technology will exist that will allow us to take all of this self-isolated stupidity and launch it into the sun, disposing of it forever.

Anyway, if you carefully read the above quoted assertion (not recommended unless you are insane, like me) you can only reach the following 2 conclusions about the writer's view:

1) Republicans cannot avail themselves of the courts without being hypocrites &

2) He has no idea what the definitions of "law" and "precedent" are.

In Coleman's case, he is asserting that some absentee ballots were rejected for statutorily impermissible reasons. Or, alternatively, compliance with the statute was rendered impossible by the state (for example, signature lines being covered by address stickers. They may may win on these facts, they may lose on these facts. But there is a case or controversy there, and they are within their rights (and well within common decency) to pursue them. They have - as we law talkin' guys like to say - an argument.

Judges generally do two things when rendering decisions. First, they make findings of fact. That is, they simply try to answer the question, "what happened." Which testimony was believable and relevant? If a Jury was involved, was its verdict supported by evidence? And so on.

The second thing a judge does is advance conclusions of law. What statutes, precedents and other primary law are relevant to the issues of the case? How are they to be interpreted? How much discretion is the court afforded by the applicable law?

And at the nexus of the facts and the law, lies the decision. How does the law as discerned by the court apply the facts found in the case.

Where judicial activism comes in, is where a judge refuses to find a critical fact, or refuses to apply the applicable law because of his or her own individual notion of what justice is. This is especially odious to the conservative since judges are (at least at the federal level) appointed and therefore not accountable to the people. This gives them an awful lot of power, something we as Americans (at least the sane ones) have traditionally balked at.

Secondly, a free ranging judge subverts the will of the people; something that flies in the face of democracy as we know it. When a judge or a court willfully ignores a duly enacted statute by the legislature, or finds some creative reasoning for invalidating it, they are in effect substituting their own capricious judgement for that of a lawmaking body elected by the people.

Given this definition of "judicial activism" (which I think are totally uncontroversial and commonly accepted), reread the blurb above. The only conclusion you can reach is that this kool aid-addled partisan hatchet man honestly believes (though he may not even know it) that any time a conservative avails herself of the courts, she is being a hypocrite and ought to be shamed out of it.

Seriously. Coleman's theory is nothing more than an assertion that Minnesota's absentee ballot law (specifically, section 203B.12 - see if you get any citations at MN PP!) was misapplied by some election judges. They'll either win or lose on that argument. But that's a long way from his team "hoping" that an "activist judge" will rule in their favor based on some capricious application of the law. If they are, MN PP doesn't cite any examples. But like I've said before about these people: the truth doesn't matter to them - only winning and power. Fascists.

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