Arrayed against the policy of the elected government of Poland (which ran for election twice on this policy) is: the EU Commission (not elected), the decisions of the European Court of Human Rights (not elected), the Council of Europe / Venice Commission (not elected), and any number of Polish judges — all appointed by a process wholly insulated from democratic control. But I repeat myself.
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I cannot prove this, but I expect if during our domestic squabbles involving the elected arms of the government manipulating the federal courts (circa 1802, and again circa 1863, or even today in relation to court packing) a bunch of international organisations told us what to do, such interventions would not have been (and will not be in the future) very welcomed, and might very well have made (and will make in the future) normal political compromise less likely.
“Purge”. If you want more Trump … but I repeat myself.
Law
Seth Barrett Tillman: The Tale of the Swedish Prosecutor, the Citizen, and the Human Being
See: The Case Against Deporting Immigrants Convicted of Crimes
Then see:
The prosecutor made a recommendation against deportation.
The prosecutor reasoned that the defendant was unlikely to be rehabilitated by confinement, and therefore, the defendant was likely to commit the same crime again. The prosecutor’s position was that whether the defendant goes on to rape a Swede (or a non-Swede in Sweden) or someone in the defendant’s own home country should not be considered because the health, safety, and lives of all potential future victims should be valued equally. And equality is a value upon which we all do or should agree.
Did the prosecutor act rightly or wrongly?
“. . . the significant, blood-sport destruction of my business . . .”
Leon Cooperman: Two changes that could help fix what is wrong with our regulatory process:
It seems logically manifest to me that something transpired between September 2016 and March 2017 that led to the Commission’s dramatically downwardly-revised settlement offer. Despite numerous attempts to ferret it out, I have been unsuccessful in getting a response, either from the current chairman or from his predecessor who oversaw my case (and who told me, when I saw her at a conference after she left office, that even innocent people often find settling with the government preferable to hazarding the system). As an American taxpayer, I believe that I deserve an answer to my question. And as an analytical person, it is hard for me to reconcile the significant, blood-sport destruction of my business that this matter has occasioned without understanding the dynamics behind the resolution from the Commission’s perspective.
“Something transpired between September 2016 and March 2017” that led the SEC to dial back the brutality of its regulatory attack on Mr. Cooperman’s firm. I wonder what that something could have been?
Elections have consequences. The Obama administration was so openly hostile to business, and so casually willing to use its power to reward allies and punish critics, that prominent business people were reluctant to criticize the Administration publicly, especially in the early days before the 2010 elections. If I recall, Mr. Cooperman was more courageous than most of his contemporaries in expressing public concern about Mr. Obama’s policies.
As the man said, this is how you get more Trump.
Should Law Yield to a Judge’s Personal Beliefs?
Linda Greenhouse, writing about the late federal judge Stephen Reinhardt, also mentions Supreme Court justice William Brennan, and says “Doctrinal purity mattered less to him than extracting even the most gossamer claim to a favorable result.” She evidently sees this as a good thing.
I’m reminded of something written by Sebastian Haffner, who at the time of the Nazi takeover of Germany was a young lawyer working at the Prussian Supreme Court, the Kammergericht:
It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.
The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”
We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.
There were, however, other casescases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.
“The meaning was more important than the letter of the law”…Linda Greenhouse’s approving gloss on Brennan’s judicial strategy is in my view uncomfortably close to the methodology of this newly-assigned Kammergerichtrat. I am not saying, of course, that Greenhouse is a Nazi; I am, however, saying that the judicial interpretation approach that she prefers is highly dangerous.
(I discussed Haffner’s experiences at the Kammergericht, and their relevance to American today, in 2013 at Chicago Boyz, where an interesting comment thread developed)
Also highly dangerous: the attitudes and behavior of those CUNY law students…law students, mind you…who recently tried to shout down a talk being given by law professor Josh Blackman. See also Blackman’s own article about his experience at CUNY.
The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary, and is moving rapidly toward the approval of politics by mob action. The prospect of Democratic control of Congress and/or the Presidency…even of Democratic dominance following a crippling of the Trump presidency…should be absolutely terrifying to all who value American institutions.
Haffner’s memoir is an important and well-written document; I reviewed it here.
(The above was also posted at Ricochet, in slightly different form; so far, it is only on the Member feed)