Re: Swinging with Passion Makes for Bad Case Law
by
IMKessel
06/20/2008, 11:44 PM
b0nnylass,
Thank you for an intelligent and cogent response.
Self-editing is similar to self-lawyering, fool for a client.
My meaning would have been clear if I had written the following:
Extending constitutional right to non citizens, any human being, including the prisoners being held at Guantanamo, feels good, but is it justice?
The question is not one of ascertaining who is guilty and who is not. The prisoners at Gitmo were not picked up at random on city streets or hanging out around pastures sheepherding sheep. They were captured during hostile action against American troops. The proper way to process them is through military investigation and tribunals. American civilian courts are not set up for this.
Laws are often unjust but as I stated previously, it is for the legislature to rewrite or eliminate unfair laws. Another tactic is civil disobedience. Laws can be ruled constitutionally sound and still be unjust, e.g., the interment of American citizenry who were of Japanese heritage. The Supremes allowed FDR to round up said people. They knew full well that internment did not pass the smell test, but they allowed it for reasons of national security. American citizens could have taken up protest against this, but they (before my time or I would say “we”) did not. The Founding Fathers placed the responsibility of keeping the government from becoming tyrannical in our hands. We are to work for “a more perfect union,” but we are a work in progress.
A judge without compassion is like a lighthouse without a light; a stony edifice that serves blindly. The argument was not that judges can’t be human but that they must use their skills, including intelligence and compassion within the confines of the law as it is written, not as they might wish it to be.
As for Justice O’Connor, she was not a pragmatist; she was a handy (wo)man. Her decisions were too often based on circumstances and not principles. Her judgments may have answered the immediate question but they often did not establish a clear and guiding principle as precedent; her decisions frequently left the waters more muddied because she did not look at the natural entailments of those decisions. One may admire a doctor who has a 100% cure rate, but if the cure is death, one would be well served by finding a doctor who thought about the long term