Justice Anthony Kennedy is a passionate man. He was a passionate judge and now je is a passionate Justice. But while one may want zealousness in one’s representation in the legal arena, passion in deciding law is dangerous, if not outright foolishness. Passions are swayed. Passions are fired up. Passions are capricious. On April 18, 2007, Ms. Bazelon’s colleague, Dahlia Lthwick, bemoaned Kennedy’s passionate decision in Gonzales v. Carhart upholding the federal partial-birth abortion ban. He was consistent in his behavior as a jurist in that his judgment was passionate but not well reasoned.

The laws, to best serve the public, need to be written with clear vision. If, and too often when, our legislators, through cowardice, convenience, malfeasance, or any other weakness of mind or spirit, write laws that are unclear in wording or purpose, the courts are responsible for clarifying these confused and confusing laws. Again, logic is the rational tool to find the meaning and purpose of law. Passions only serve to cloud issues. The question of who will be disappointed or thrilled is not to be entertained. The question of who is best served is secondary to the intent of the legislation. If the writers of laws cannot or will not be clear in their intent, the court can dispassionately decide the meaning of the law or kick it back to the legislature, where the law makers, who answer to the people, can be held accountable for their decisions. Too often judges, and certainly tenured for life Justices, are not or cannot be held accountable for their passionate decisions and interpretations.

Drexel law professor David S. Cohen remarks, “If you look at Justice Kennedy's entire record, he has very traditional notions about gender, particularly the family.” What do Kennedy’s notions about anything but the law have to do with making decisions? The idea that any agent in the judiciary comes to the court without history and bias is naive, but the public is best served when these notions are held in check. If a fair referee has been a life long NY Giants fan, he can still officiate a game involving them as long as he understands and puts in check his predilections towards all things New York. Unchecked passions can only cause misjudgments and false calls.

The problem with Justice O’Connor was that her intuiting the law, as opposed to strictly interpreting it, was that her decisions were often inconsistent. Her creating law may have righted wrongs, but righting wrongs is not the business of the court. The public pays politicians through our taxes; we have a right and responsibility to ensure that they do their job, passing just and constituently sound law.

Ms. Bazelton applauds Kennedy’s decision in Boumediene v. Bush. O’Connor laid down case law previously on detainees, and like her decisions, this is a decision that the American public will some day rue. It is a decision that is based completely on passion. Yale law professor Judith calls the decision, "a sustained scholarly opinion that includes moving statements about the meaning of habeas and of constitutional limitations on power." (My emphasis added.) Extending the human beings held at Guantanamo feels good, but is it justice? When you are merciful to the unjust, you are unjust to the merciful.

Logic and examination of the facts demonstrate that the prisoners of war are exactly that. They are not civilians; they are irregular military personnel who fall into a gray area of warfare. It is not logical, or even feasible to “detain” them during military action; and the right to be detained is what the SCOTUS decision bestows on them with its habeas corpus ruling; our military be damned. They will have to protect the very terrorists who attack them. The military being of a pragmatic, though not malevolent mindset, may find that it taking hostages to be brought for civilian trials is impractical. This may tilt command decisions in the direction of more intense fighting, to press battles beyond where they might otherwise need. A military commander paramount interest is the mission. Sacrificing his own troops in battle is always a possibility. To demand that he sacrifice even one of his men to protect the nemeses’ rights is unrealistic and unctuous.

“While he gets points for his concurrence in last year's school-integration decisions, which saved "race-conscious" student assignment plans, O'Connor might have been more sympathetic to the school districts in the end,” opines Ms. Bazelton. (My emphasis added.) Being sympathetic, feeling another’s pain, is a wonderful thing in teachers, social workers and human beings in general, but sympathy is not a logical basis for judicial standards. Many remedies for creating sympathies exist, such as protests and news releases. Let the masses be stirred to forcing the legislature to do its work and do it well, but let judges base their rulings on existing laws.

A Jewish prayer goes, “Justice. Justice. Always pursue justice.” Deciding what is just calls forward passions, but that passion must be tempered with reason or justice will never be done.

You say a lot of things here...but there seem to be some contradictions in your arguments.

"Extending the human beings held at Guantanamo feels good, but is it justice? When you are merciful to the unjust, you are unjust to the merciful."

I assume you've made some kind of typo here; extending the rights of human beings perhaps? The problem here is that we need to find out which of the detainees actually are unjust; apparently half were not, since they've already been released. Do you consider it just to punish the innocent along with the guilty? You are acting as if the Supreme Court has ordered the immediate release of all prisoners in Guantanamo. Surely you've done your homework enough to know that your argument here is incomplete, and a bit dishonest.

"let judges base their rulings on existing laws."

“Justice. Justice. Always pursue justice.”

The problem here is that sometimes existing laws are unjust. To me, O'Connor's great strength is that she truly did seem to pursue justice at all times. I think sympathy is a crucial component of determining what is just; and I certainly don't consider it to be a weakness in a judge. Sandra Day O'Connor was a pragmatist and a champion of women's rights, and we would be lucky to have another like her on the Supreme Court some day.

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.

It loks to me as if passion may be getting in the way of logic and reason in your opinion here... correct me if I misread you...

The graf that begins with "Logic and examination..." is a bit confused. Are the detainees at Gitmo "prisoners of war," or not? If they are, then the Laws of War -- both by custom and convention[Haugue & Geneva] -- demand that captured "military personnel" be detained humanely. And that "detention" of POWs is customary practice is not in dispute -- being held in POW camps is "detention" for the purpose of keeping combatants from returning the the field of battle. It is the Administration -- not the detainees, nor the courts -- that has relied upon this customary power to detain for the duration of the conflict in justification for the current detentions.

Are the detainees "irregular military personnel who fall into a gray area of warfare"? That blanket assertion doesn't seem to be supported by the facts as we know them[stipulating that we've not full knowledge]. Some of those persons are clearly not members of any military force regular or irregular. Those detainees who might make a legal claim to be members of an irregular military force (i.e. Taliban militia members) will have problems advancing the claim in the U.S. -- we objected to the language in Geneva's Protocol I that extends POW status to folks who don't wear uniforms.

Nothing in the Supreme Court's recent ruling added a "right to be detained." Further, if these folks are POWs, then they've rights to protections under the Geneva Conventions that antedate anything the Supreme Court did recently.

Now, what the Supreme Court did was to hold that these detainees have a constitutional right to habeas corpus review of their detentions. I think this makes perfect sense because, in fact, most of these folks are "civilians" who are either (a) innocent and should never have been detained in the first place, or (b) criminals who need charging, trial, and sentencing if convicted. The Administration may even benefit from a review of the detention of those folks who are arguabley subject to detention as POWs -- lets clear up some of the gray area....

What I find most curious is the Administration's incongruous argument that some of these folks are both "combatants" -- a term having specific legal meaning under the Laws of War -- and "criminals." As I understand the law a criminal loses combatant status and the specific protections accorded POWs.

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Tzedek Tzedek Tirdof

Yes, justice... but how do you get at justice through unjust means? You can't!

I can't disagree more strongly that "[w]hen you are merciful to the unjust, you are unjust to the merciful" -- it seems to me a non sequitor. But the question isn't on "mercy," so I don't get where it fits in the argument. What we've been debating is "justice" alone. So, would you agree there's an imperative toward "justice" even for those we believe to be unmerciful? Isn't it true that to deny justice to any of us is a denial of justice to all?

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.

This is an incorrect statement of the facts, and leads to what I believe is an incorrect conclusion. It is simply not true for lots of these folks that "[t]hey were captured during hostile action against American troops." My understanding is that the majority of those still being detained were captured in either post-combat security operations, or picked up in third-party countries[i.e. Pakistan] where U.S. forces were never engaged in hostilities. Of those suspected Afghan terrorists picked in security oprations there is reason to believe that U.S. made lots of captures based on bad intel from untruthful sources -- that is, innocent people not engaged in any hostilities were detained unlawfully.

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The detainees are to be treated as POWs since they are members of a military force, an irregular militia, acting against the interests and military of a sovereign government, ours. My phrasing of, “the right to be detained” was used to draw a distinction between being captured by a military force vice being detained in a police enforcement action. The SCOTUS decision comes down clearly for the latter. This pronouncement from the bench, granting the right of habeas corpus review to non-US combatants severely hamstrings American military operations. (What is a combatant? This is a difficult issue even for academics sitting in a quiet classroom; making that decision with bullets flying, bombs bursting and your comrades with blood and organs outside of their bodies is near impossible but our fine military personnel make this decision with a high degree of correctness on a daily basis. How does the civilian world know the decisions are correct? Impartial military reviews. Our fine men and women are held to the highest of standards.) Men and equipment must be sacrificed to “detain” the “non-combatants”, even during battles. Then they are to be diverted off the battle fields to the nearest court in a most timely manner; the Constitution does guarantee a “fair and speedy” trial for American citizens; the recent SCOTUS decision is extending the umbrella of that protection to not only noncitizens of the US but to the very people who wish to destroy American and for all which we stand. . POWs are subject to the protection of our Constitution; they are, as you pointed out, protected under the articles of Geneva conventions, which all recruits, including myself, are required to learn at boot camp. U.S. military personal know how to treat our POWs – though, sadly, some have foolishly, and with incalculable damage, disregarded this knowledge of proper conduct.

Your argument with this administration is exactly that. I cannot in good faith argue for the conduct of the President’s foreign policies. While I have supported his decision to enforce UN sanctions and resolutions, I have disagreed with this administrations handling of operations, but you fight wars with the administration you have not the one you wish you had.

Tzedek Tzedek Tirdof -- Shhhhhhhhh. Don’t speak Hebrew in front of the Goyim. It confuses them. J

Your a priori assumption is not a given. You ask, “... but how do you get at justice through unjust means?” Agreed, unjust means do not lead to a just end, but you have not established that the means are unjust.

The inclusion of my observation, made by Denis Prager, if memory serves for both the author and quote, is not a non sequitur; it was tangential. The connection being justice, the direct subject, to mercy. In general the statement means that people, all people, must be held responsible for their choice, but when some people, in order to be merciful, allow some other people to be held unaccountable, the ones who do right are the ones who are punished; e.g., if I allow a student to cheat and face no consequences for the choice, he may receive the same grade as someone who has studied for the test. This is clearly and inherently unfair to the student who prepared, even if it does no damage to the test grade he received. In particular to our discussion, by extending rights of US citizens to non-American combatants, regular or irregular militias, SCOTUS does damage to those who have defended the Constriction by giving what was earned righteously to those who did nothing to earn the rewards of freedom.

“Isn't it true that to deny justice to any of us is a denial of justice to all?” You may be confusing Camus’ argument that no man is free while even one is enslaved. But to answer your question, no. Justice is an imperfect device. It is nor possible to assure justice for every person. If we truly wish to be certain that no innocent is ever punished, we could live as the Amish do and not proscute anyone, but this will only assure injustice since some will pray on others. The Amish believe that God will grant justice in Heaven, but if we all, but a few, followed this pattern, the honest and ethical would first have to endure hell on earth.

Again, your argument on battlefield detentions makes no sense historically or as a matter of law. It has always been true that combatants on the field of battle are legitimate targets while still actively engaged in hostilities, and the recent Supreme Court decision did nothing to change the law in that respect.

It has also long been true that combatants made ineffective by reason of capture are "detained," removed from the field of conflict, and treated humanely[as a matter of law, anyway].see Genva Convention IIIs usage of "Detaining Powers" and the specific obligation at Article 19 that " Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger." This contradicts the assertion the recent decission establishes a "detention" requirement that is new.

What is arguably new is the means by which persons not falling into one of Article 4's categories or whose status is unclear, might have their dententions reviewed. That Geneva esablishes a right to review for these folks is conceded by the administration -- that's why we have CSRTs. The Supreme Court decided that those reviews don't satisfy minimal standards exepected of a "competent tribunal." see Article 5. The remedy ordered is habeas review by a federal district court -- this is neither an extreme remedy, nor does it have an impact in any way on the ability of soldiers in the field to make captures of combatants actively engaged in hostilites. It may, however -- and I think this appropriate -- cause forces involved in security operations to take more care deciding the whos and hows of apprehending and detaining.

The decision does nothing to require that prisoners be "diverted off the battle fields to the nearest court in a most timely manner...[for] a 'fair and speedy' trial." It does require persons who are disputing their status, and those whom the Administration is charging as criminals, have a right to petition for habeas review. Habeas is not a "trial" speedy or otherwise -- it's merely[though importantly] a hearing where cause for dentention must be shown. And it's important to note that this is just a right "to petition" -- there's no requirement that courts grant review, and certainly no requirement that a particular remedy be impose in any case.

Now, I again dispute your blanket factual assertion that the detainees are POWs. It's clearly not the case that "terrorists" are "combatants" entitled to POW status & protection under Geneva III. "Justice" demands that these folks be fairly tried & sentenced to punishment. Punishement might justly involve indefinite detention -- life sentences -- but only after conviction for crimes.

It's also not clear that members of Taliban militias & Iraqi militants are entitled to POW status -- the U.S. has expressed reservations viz. Art. 44 paragraphs 3 thru 5 of Additional Protocol I and we have therefore not ratified this protocol. "Justice" here demands that we at least allow them what conventional law requires -- a chance to prove their claim to protected status.

It is, however, very clear that some innocent civilians have been caught up in our "Global War on Terrorism" dentention regime... No matter how you define "justice," the continued languishing of these folks is clearly unjust.

In any event, it is the President who has refused to accord these detainees what protections Geneva requires -- the coercive interrogation practices at Gitmo among other places have been defended by the Administration. It is members of our military who have engaged in this conduct not as "bad apple" individuals in the case of Gitmo, but with reliance on legal memoranda signed off on by Mr. Rumsfeld and with the President's knowledge. So, yes, I do have an argument with the President. But, it's not personal -- it's about how this veteran[U.S. Navy] strongly disagrees with the Preident's conduct of the war and it's about how the military which I greatly respect has been misused and abused.

I do, however, still have an argument with you... actually, it's not so much an "argument" as an attempt to maybe clear up your mistaken factual assertions and give you an opportunity to revise your conclusions. There may be good reasons to disfavour the Supreme Court's decision, but your disagreement is based on mistatements of fact and law...

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Your justice and mercy language in the first instance was "When you are merciful to the unjust, you are unjust to the merciful." But then you give me a hypothical involving a "cheater"[unjust], a "non-cheater"[just], and a teacher who has a choice to be "merciful" or "just" with full knowledge of the cheating that took place. In that scenario I would agree that to give the cheater a grade equal to the non-cheater is "unjust". But, for your justice and mercy language to apply here you must assume that the cheater is "unmerciful" and that the non-cheater is "merciful" -- it must be an assumption because the only thing we know from the scenario is the condition of each viz. "justice".

Let's try another hypothetical: A person kills without mercy. The jury & judge excercise some compassion -- and judges may act with compassion, as you cede above so long as the exercise is "within the confines of the law as it is written." Not finding the person not guilty, nor refusing to impose some consequences, but acting mercifully in not impossing the maximum punishment allowed by law -- let's say the hypothetical jurisdiction allows the death penalty for the charged crime. Does this expression of mercy result in being "unjust to the merciful"? Do we know what kind of an individual the victim or his family was -- that no one deserves to be the victim of a crime is in no way dependent upon whether they were "just" or "merciful".

You see how your justice and mercy quotation makes a conclusion that doesn't necessarily follow?