September 7, 2012 at 2:13 P.M. President Obama delivered a stirring speech last night at the Democratic National Convention. Many of us on the Left have reservations about Mr. Obama's record on human rights issues and his continuation of Bush-era policies that should be discarded. I expected the first term of Mr. Obama's presidency to be devoted to correcting the economic catastrophe inherited from the previous administration. No surprise there.
Mr. Obama could not concern himself with domestic efforts to improve education and infrastructure, American competitiveness in science and engineering, continued U.S. preeminence in the arts of cinema and literature and elsewhere, until he had "dug us out of the Republican hole." I would prefer not to get into a bigger hole with Elder Mitt of the Mormon Church and Randian Paul Ryan.
I have read the newspapers every day and listened to Republican speeches. No specific suggestions are offered (except tax cuts for the rich and pain for the poor) by Republicans to deal with the crises that we face in the world and in terms of America's domestic economy.
For poor and working people, students and retired persons, middle class suburbanites there is only one choice in this election, Mr. Obama. For the 1% the choice is also clear, Mr. Romney. I will not make a final decision until I walk into the voting booth. Unless I become a member of the 1% by November 6, the choice should be easy.
No italics or bold script are available at blogger (for me) and I cannot print from public library computers. I will continue to write.
"No Penalty For Torture," (Editorial) in The New York Times, September 5, 2012, at p. A26. ("Not only have those responsible escaped criminal liability, but the administration has succeeded in denying victims of this harsh method any day in court ..." Please see: "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "New Jersey's Office of Attorney Ethics" then "New Jersey's 'Ethical' Legal System.")
Ronald Dworkin, "A Bigger Victory Than We Knew," in The New York Review of Books, August 16, 2012, at p. 6.
Paul Campos, "Did John Roberts Switch His Vote?," in Salon, June 28, 2012, at p. 1.
Joseph Lelyweld, "Obama: The Report Card," in The New York Review of Books, August 16, 2012, at p. 18.
Michael Tomasky, "How the House Really Works," in The New York Review of Books, August 16, 2012, at p. 27. (" ... before the new president had made one concrete proposal, most of the leading congressional Republicans already agreed that they would oppose him and would do so, to the extent possible, unanimously.")
Adam Liptak, "Approval Rating for Justices Hits 44% in Polls," in The New York Times, June 8, 2012, at p. A1. (September, 2012 the Court's approval rating hovers at 41%.)
The judiciary -- especially the nation's highest court -- depends crucially upon the respect and political-moral authority of its decisions for the general population.
Much of the right to CLAIM respect for its decisions has already been lost by the New Jersey Supreme Court and other tribunals in America's "Soprano State." ("Law and Ethics in the Soprano State" and "New Jersey's Unethical Judiciary" then "New Jersey Supreme Court's implosion.")
The tendency throughout the country and global community is decline in respect for our nation's Supreme Court which (mercifully) is still far from the appalling level of corruption and incompetence of New Jersey's soiled tribunals. (See: "New Jersey's Judges Take Care of Their Own" and the fothcoming "Decline in Respect For New Jersey's Supreme Court.")
The Court's power is based on legitimacy that is both perceived and granted, in fact, by persons affected by decisions as well as by their representatives, together with those indirectly affected by outcomes -- such as distinguished members of the legal profession who are uniquely identified with the workings of the tribunal responsible for the profession's legitimacy. The U.S. Supreme Court must be symbolic of the nation's commitment to the rule of law. ("Roberto Unger's Revolutionary Legal Theory" and "Richard A. Posner On Voluntary Actions and Criminal Responsibility.")
The Court's effectiveness or power requires responsibility based on adherence to the fundamental law of the land. In the "case" of the Supreme Court this necessitates respect for the text, the actual words of the document at the center of our society, but also inclusion within a "hermeneutic tradition" or "culture of interpretation" that makes some readings possible and others impossible.
There is no sane reading of the U.S. Constitution, in my judgment and in the opinion of most scholars, that makes torture permissible or that sanctions murder by the state outside the boundaries of law, that permits censorship or, after the Thirteenth and Fourteenth Amendments, slavery in any form. ("America's Holocaust" and "Foucault, Rose, Davis, and the Meanings of Prison.")
Furthermore, political considerations or policy rationales for decisions are highly suspect as they are "non-jurisprudential" when unconnected to the text and case law emerging under the Constitution. Political deal-making is appropriate in a legislative setting, not a judicial one.
Politics -- while sometimes unavoidable -- is deligitimating for Court decisions. New Jersey is the prime example of this catastrophe given the state's history of justices deciding how their fellow citizens should live by legislating from the bench. ("Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "New Jersey's Judges Disgrace America.")
The Supreme Court should be America's "forum of principle." Chief Justice Roberts is perceived by many Court observers as having caved-in to political pressures and considerations in his so-called "Obama-Care" ruling. This is independent of the result in the case. I agree that Obama's Health Care Initiative and Legislation is a good thing for the country.
What may not be a good thing for the country is a politicized Supreme Court legislating actions we approve of today then making rulings that we disapprove of tomorrow. The most likely outcome in the long term is that many of the "social policy" decisions or political results will be 5-4 decisions favoring the Republicans on the Court. An occasional decision by the Chief Justice for the liberals will not legitimate these outcomes, but such a "switch" may provide cover for future partisanship. Liberals will not be thrilled at such pro-Republican outcomes. ("Ronald Dworkin's Jurisprudence of Interpretation" and "Manifesto for the Unfinished American Revolution.")
Judges do not have command of the army (fortunately!) nor, usually, do they have their own police force. Enforcing the laws and effectuating judicial decrees is a responsibility left to the Executive.
This division of responsibilities creates "discretion" among police officers or their superiors concerning the extent to which judicial decress will be enforced -- particularly when police officers do not understand Court decisions very well -- or whether they will be enforced at all. Sometimes the technicality in Supreme Court decisions is such that to expect police officers to abide by them with exactitude is absurb.
A population can nullify or chip away or insist constantly that judges revisit controversies -- depending on the fluctuating currents of public opinion -- in all areas of Constitutional jurisprudence: for example, racial justice and abortion rights continue to be sources of festering controversy where there is little satisfaction by any faction that disputes have been settled wisely or definitively. ("What is Law?" then "A Commencement Address by Secretary of State Hillary Rodham-Clinton.")
The Court's failure to decide clearly or fairly in contested areas -- like illicit killings of American citizens or killing without judicial process, robot bombs, and all other failures to resolve human rights controversies -- have deligitimized all Court decisions for many students of U.S. law. ("America's Holocaust" and "Justice for Mumia Abu-Jamal" then "Albert Florence and New Jersey's Racism.")
Please compare David E. Sanger, Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power (London & New York: Crown, 2012) with James Mann, The Obamians: The Struggle Inside the White House to Redefine American Power (New York: Viking, 2012).
"Bush v. Gore" is the classic example of a Supreme Court decision unsupported by existing law or sound reasoning. Along with the infamous "Dredd-Scott" decision, "Bush v. Gore" represents a low point in American law because political partisanship was obvious as were rationalizations and obfuscations that sought to DECEIVE readers of the opinion concerning the genuine rationale for the result. No other interpretation seems rational or plausible to me.
One senses in reading the "Bush v. Gore" opinions -- and there are many of them -- that several of the justices were humiliated and angered by what had been committed to parchment in a moment of ideological passion and poor reasoning that, clearly, wounded the Court (severely) and will continue to do so for many years to come.
I suspect that much the same may be true in New Jersey, both with regard to the decision to allow for the crimes to which I have been subjected and the continuing cover-up of those crimes or their perpetuation in ongoing cyberwarfare. ("Is America's Legal Ethics a Lie?" and "American Doctors and Torture" then "An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")
I urge readers to study the agonized opinion by Justice John Paul Stevens in "Bush v. Gore." ("Charles Fried and William Shakespeare On Interpretation" and "Duncan Kennedy, Peter Gable, and Critical Legal Studies.")
Ignoring the real issue in a case because it is too controversial or rendering partisan, politically-motivated decisions, as in "Bush v. Gore" -- where the split between the justices is exclusively on Republican versus Democrat lines -- undermines the Court's authority, deservedly undermines that authority.
Justices at the state or federal level must not be political hacks or paid servants of the political power-structure, nor should they be concerned with self-interest (or self-preservation) at the expense of their duties and society's demand for legal justice. A corrupt or partisan judiciary violates legal ethics. ("Legal Ethics and Legality" and "Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "New Jersey's Feces-Covered Supreme Court" and "New Jersey's Unethical Judiciary" and "New Jersey Supreme Court's Implosion" then "No More Cover-Ups and Lies, Chief Justice Rabner!")
The Court has failed to address adequately Constitutional crises (torture, assassination of Americans without due process of law, sanctioned state censorship of opinions that is content-based as seen at these blogs) while protecting conspiracies by police and judges to violate civil rights and deferring too much to the president's war powers.
The justices have reasoned poorly and written barely adequate or competent opinions in too many important cases. Lawyers are often intimidated about saying these things in America out of a fear of reprisals, despite the First Amendment. However, in the age of Abu Ghraib and Guantanamo this criticism must be spoken publicly: The U.S. Supreme Court has often failed to provide justice or uphold due process of law as required under the Constitution.
Albert Florence is a recent example of smart judges making foolish choices for political reasons of expediency. Maybe a better term is "cowardly" decisions, Mr. Rabner, rather than expedient or merely foolish choices. We need brave Supreme Court justices, like Justices Brennan and Marshall. To ignore the real Constitutional issue raised in a case is not to make the issue go away. New Jersey, please do not continue to ignore my pleas for the truth. ("What is it like to be tortured?" and "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and someday "What is it like to be raped?")
Racial justice questions, for example, will not vanish if ignored by courts. They will resurface in American society and prisons with greater intensity than we have seen so far. I prefer that such issues be debated and fought over in America's one "forum of principle." No justice, no peace. ("Justice For Mumia Abu-Jamal.")
"Just 44% of Americans approve of the job the Supreme Court is doing and [many persons] say the justices' decisions are sometimes influenced by their personal or political views, [cash in an envelope may work better in New Jersey] according to a poll conducted by The New York Times and CBS news."
I am sure that the disapproval rate is higher and satisfaction with the Court's work is even lower than this statistic suggests. American judges and justices should trouble themselves to discover why this is so and to do something about it while they still can.
