Who judges the judges?

[Aimless]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

[Hazir]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

Roughly, yes.

[LittleFuzzy]

Btw, am I correct in my understanding that judges have super-powers but a judge's decision can be undone by a more super-powered judge provided you appeal to said superduper-powered judge? So basically if you get shafted by one judge your only real hope of getting unshafted is to have the time, the money and the energy to go through an appeals process?

As far as individuals go, your understanding is correct. There may be some wiggle room arising from noncompliance and penalties for the same but they wouldn't materially alter that understanding. Conglomerate entities like large corporations and NGOs or government might be able to widen that wiggle room to something that is material, and have greater capacity to get the law changed which can alter later decisions though such efforts are constrained from doing anything but altering present or future conditions.

[EyeKhan]

I voted against this way back when. I also declined to sign a petition to get it on the ballot to begin with. Personally I have mixed feelings about affirmative action - I've had to suffer wtih incompetant management because of it. I don't have any reaon to believe I've been passed over because of it, however. I've been passed over because the other candidate was a son-in-law of a manager, because the other candidate was a gen-1 polish student of the gen-1 polish supervisor, because the other candidate played golf with the manager, because I had very long hair.... but not specifically over race or gender (at least so far as I know). But the idea a less qualified candidate gets the job or the promotion strictly to get the number of minorities up, regardless of qualifications, is fundamentally distasteful.

Hiring and promotion, as far as I've seen, is either determined (all other things being more or less equal) ultimately via personal relationships, even those once or twice removed, or by the comfort level with the candidate the hiring authority has. In both cases this makes getting hired pretty difficult for minorities, especially those negatively stereotyped. Once white folks and black folks spend a lot of time working together, theoretically the comfort level will even out so that black folks have more opportunity to get hired by whites (when all other things are more or less equal). And then preferences can be dropped, right?

As a rule I think racial or sexual preference in hiring, or any preference not related to qualifications, is wrong no matter who is practicing it. At my employer promotions are largely determined before the position is opened. A manager knows who he wants then the process is put through the paces of posting the job, interviewing a series of candidates, then awarding the position to the manager's pre-pick. I've been one of those 'filler' candidates used to make the process appear fair. I didn't like it. I've also been tipped off by inside people about a postion that would be opening and who would get the job. Then I watched a friend of mine get a chance to interview, with a hald dozen others, listend to him talk nervously about it beforehand, and then of course the hand picked pre-candidate gets the job, just as the tip-off indicated. Nice.

But then there's the social problem of an underclass of black people who can't get a decent job not because they wouldn't do it well but because a hiring manager isn't comfortable around black people. How do you fix that? How do you prove that's the reason the black folks aren't getting hired so you can take the least first step in fixing it?

Anyway, I didn't sign the petition and I voted against the proposal because: A. there may be some need for this sort of thing and this was a blanket ban and B. a constitutional ammendment? Seriously? Was that really necessary? What if clear problems result from the ban and you want to bring just a little bit of affirmative action back in special cases? You can't because the blanket ban constitutional ammendment is too hard to change.

As far as the court ruling is concerned, I don't have an opinion. On the one hand I think the judges were right, this is a bit of Tyranny by Majority. On the other it doesn't appear to be a legal basis for overturning the law. Also, I don't like the news talking about how many minorities that have been denied positions at the University of Michigan because of this law without acknowledging that if the law weren't in place it would be a bunch of white people's kids that, though qualified, would be denied positions for the benefit of less qualified people. Listenting to the news you'd think there were a bunch of empty seats that could be filled by poor inner city blacks.

So, how do you fix this sorry situation anyway? It feels like a no-win scenario.

Also - I found the thread title a bit off kilter from the content.

[Dreadnaught]

Again, Aimless. Precision is the area of regulations. Those define precisely what is meant by the laws.

I disagree. Laws that aren't precise enough leave extraordinary powers in the hands of unelected and entrenched bureaucrats. We've had a lot of controversy over here with our new banking laws, which across 1000 pages of legislation manage to say very little beyond setting up agencies with enormous powers and no accountability.

Obviously regulators must have some purview. But in general society benefits from laws that are clear and precise, not subjectively interpreted.

I voted against this way back when. I also declined to sign a petition to get it on the ballot to begin with. Personally I have mixed feelings about affirmative action - I've had to suffer wtih incompetant management because of it. I don't have any reaon to believe I've been passed over because of it, however. I've been passed over because the other candidate was a son-in-law of a manager, because the other candidate was a gen-1 polish student of the gen-1 polish supervisor, because the other candidate played golf with the manager, because I had very long hair.... but not specifically over race or gender (at least so far as I know). But the idea a less qualified candidate gets the job or the promotion strictly to get the number of minorities up, regardless of qualifications, is fundamentally distasteful.

Hiring and promotion, as far as I've seen, is either determined (all other things being more or less equal) ultimately via personal relationships, even those once or twice removed, or by the comfort level with the candidate the hiring authority has. In both cases this makes getting hired pretty difficult for minorities, especially those negatively stereotyped. Once white folks and black folks spend a lot of time working together, theoretically the comfort level will even out so that black folks have more opportunity to get hired by whites (when all other things are more or less equal). And then preferences can be dropped, right?

As a rule I think racial or sexual preference in hiring, or any preference not related to qualifications, is wrong no matter who is practicing it. At my employer promotions are largely determined before the position is opened. A manager knows who he wants then the process is put through the paces of posting the job, interviewing a series of candidates, then awarding the position to the manager's pre-pick. I've been one of those 'filler' candidates used to make the process appear fair. I didn't like it. I've also been tipped off by inside people about a postion that would be opening and who would get the job. Then I watched a friend of mine get a chance to interview, with a hald dozen others, listend to him talk nervously about it beforehand, and then of course the hand picked pre-candidate gets the job, just as the tip-off indicated. Nice.

But then there's the social problem of an underclass of black people who can't get a decent job not because they wouldn't do it well but because a hiring manager isn't comfortable around black people. How do you fix that? How do you prove that's the reason the black folks aren't getting hired so you can take the least first step in fixing it?

Anyway, I didn't sign the petition and I voted against the proposal because: A. there may be some need for this sort of thing and this was a blanket ban and B. a constitutional ammendment? Seriously? Was that really necessary? What if clear problems result from the ban and you want to bring just a little bit of affirmative action back in special cases? You can't because the blanket ban constitutional ammendment is too hard to change.

As far as the court ruling is concerned, I don't have an opinion. On the one hand I think the judges were right, this is a bit of Tyranny by Majority. On the other it doesn't appear to be a legal basis for overturning the law. Also, I don't like the news talking about how many minorities that have been denied positions at the University of Michigan because of this law without acknowledging that if the law weren't in place it would be a bunch of white people's kids that, though qualified, would be denied positions for the benefit of less qualified people. Listenting to the news you'd think there were a bunch of empty seats that could be filled by poor inner city blacks.

So, how do you fix this sorry situation anyway? It feels like a no-win scenario.

Also - I found the thread title a bit off kilter from the content.

You should see what it's like in government. Half of the contracts are awarded based on racial/gender preferences. The other half are awarded after administrators spend thousands of man hours working on paperwork to get around racial/gender preferences in contracting.

But why is a state-level constitutional amendment so terrible? Any law would could been overthrown as being unconstitutional at the state level (it's certainly happened before).

[Khendraja'aro]

I disagree. Laws that aren't precise enough leave extraordinary powers in the hands of unelected and entrenched bureaucrats. We've had a lot of controversy over here with our new banking laws, which across 1000 pages of legislation manage to say very little beyond setting up agencies with enormous powers and no accountability.

Obviously regulators must have some purview. But in general society benefits from laws that are clear and precise, not subjectively interpreted.

Right. Have fun in your world with purely objective interpretations of laws. Oh, wait, that world does not exist. Too bad.

It's exactly the same thing with school grades. You people like to think that there's such a thing as "objectivity" when in fact you can only curtail subjectivity. Yes, of course, the wonder weapon of "standardized tests". That's a flawed approach as well on the order of "one size fits all".

Again, laws cannot be precise. You always have leeway. I mean, murder in the 1st? The 2nd? Or just manslaughter? If we had precise laws, the question would not even come up. If we had precise laws, we wouldn't have to debate whether 10 or 15 years are appropriate. And so on. Since the cases we argue about are rarely defined precisely, with exact and known boundary conditions, we also cannot have precise laws.

That's why we have laws and why we have regulations. That's why we need judges and lawyers - if laws were precise we wouldn't need them. What would be the point?

10 to 15 years is not precise.

[Aimless]

Again, laws cannot be precise. You always have leeway. I mean, murder in the 1st? The 2nd? Or just manslaughter? If we had precise laws, the question would not even come up.

We have precise laws, and the question comes up precisely because those laws are pretty specific about what separates manslaughter from murder. Much of a murder trial in eg. Sweden and Germany consists of uncovering the facts necessary to determine whether or not a person should be considered guilty of murder or manslaughter.

That's why we have laws and why we have regulations. That's why we need judges and lawyers - if laws were precise we wouldn't need them. What would be the point?

The point would be to determine which laws are applicable, to determine what facts need to come to light, and then bring forth those facts. It's the garbage in/garbage out problem in disguise. Like many other tools, laws are precise but need to be wielded correctly.

10 to 15 years is not precise.

Of course it's precise. Undefined to Undefined years would be imprecise. In a world where you can get anything from fines to life in prison (or death ), 10 - 15 years is very precise.

[Dreadnaught]

Exactly, Aimless is correct. We have laws that specify lots of things, EG the definition of various criminal acts. The existence of specific laws doesn't negate the value of judges or regulators. But judges and regulators are not lawmakers and should not hold massive power over society as de-facto lawmakers.

[Aimless]

But I suppose none of this really gets to the heart of the issue of some judges abusing their power to make a mockery of the interpretation and the application of laws. Bit, then again, perhaps that's not really what happened in this case?

[Loki]

You don't think making a ruling based on the assumption that any exercise of majority rights is unconstitutional is not an abuse of power? At the very least, it demonstrates that these judges are incapable of thinking beyond this case and seeing what the implication of this verdict would be if it was allowed to stand. This reminds me of the case in NYC where a court ruled that New York had to spend far more money per student in its school system because the NY constitution grants New Yorkers a right to an education. How one can interpret that constitutional protection to mean that New York, which already spends more than a vast majority of states, should substantially increase its funding is beyond me. And again, what happens to these judges? Absolutely nothing. Why do we even bother to have legislators and executives if the courts can basically do whatever they want with no consequence? In the Michigan case, they even went after the constitution, which is the only document that courts should theoretically be overruled by.

Here's a thought experiment for you: what would happen if a federal court ruled tomorrow that homosexuals do not have the right to vote because God said so? What would happen if this ruling was made by the Supreme Court?

[Aimless]

well there are guidelines for how they should to about interpreting laws and justifying their decisions, aren't there? Would be nice to get a detailed account of this case. The discussion here on the forum doesn't paint a picture of blatant abuse of power, although there are clearly legitimate objections to the decision. I dunno about all cases of majority votes, the natural extension of their reasoning should be all cases of majority votes about laws that were intended to protect minorities as a group or groups.

Re. your other question, I'm not sure what to say. How would you solve it? What if a majority vote deprived homosexuals of voting rights? If your supreme court represents the final arbiter of justice, how would you prevent jackassery on its part? If you want to be able to punish judges then you must be damned clear on what would get them punished or risk shooting your justice system in the foot. Can you do that? I get that there's a problem but I don't really see a clear definition of it, just illustrations of different aspects of it.

[Aimless]

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

http://www.cfequity.org/static.php?p...gory=resources

[Loki]

That's the price of having a democracy. Why bother letting people vote when their decisions can be reversed by unelected officials with virtually no chance of reversing those rulings?

Ideally, I'd want a mechanism which rewards judges for ruling in a clearly defensible legal manner and being punished for failing to do so. I like a political system that has checks and balances, and the judiciary simply isn't checked in this country. It can basically do whatever it wants for whatever reason it wants with no consequences. The president can overrule Congress, Congress can overrule the president, and the Supreme Court can overrule both; yet, nothing short of a constitutional amendment, which is incredibly difficult to pass, can overrule the Supreme Court. Even then, there's no way to make sure the courts don't find a way around that amendment. The only practical solution would be to pack the court if the Supreme Court tries this, but that has many negative consequences in itself. The only thing I can think of is to create some other body that decides which kind of cases can actually go to the courts.

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

www.cfequity.org/static.php?page=historyoflawsuit&category=resource s

I'd like to know which legal document gives the judiciary the right to unilaterally decide what a "sound education" costs, and why being one of the highest spenders on education in the country doesn't meet the "soundness" BS they pulled out of their behind. There are certainly political arguments to be made here, and the legislature would be within its right to increase (or decrease) education funding. My problem isn't with the increase in funding, but rather the fact that the courts think they have the right to legislate policy out of thin air.

[Hazir]

Come on there is a very obvious check on the power of the judiciary; they can not to anything whatsoever to enforce their rulings. Without the full support of the executive a ruling is nothing more than a piece of paper.

[Loki]

Come on there is a very obvious check on the power of the judiciary; they can not to anything whatsoever to enforce their rulings. Without the full support of the executive a ruling is nothing more than a piece of paper.

We'd be a banana republic if our government didn't enforce our courts' rulings.

[LittleFuzzy]

We'd be a banana republic if our government didn't enforce our courts' rulings.

I fail to see the relevance, you effectively claim we already are one because the judiciary isn't accountable.

And Loki, do us all a favor and just shut up about court rulings? You always make this claim, but you never both to read even the full decision, much less the cited precedents. Having gone over the ruling a third time, and after having checked the primary precedents, I'm no longer sure the 6th Circuit is totally wrong in its ruling at least with regard to the letter of the law. I still feel they are somewhat at odds with the spirit of rulings in prior cases *and one of those cases was, IMHO, wrong in its own extension of the other case's precedent* and am absolutely sure the current Supreme Court would overturn this 6th Circuit ruling if they chose to grant certiori, but that doesn't mean they're engaging in any abuse of their office.

[Loki]

I fail to see the relevance, you effectively claim we already are one because the judiciary isn't accountable.

An unaccountable judiciary is preferable to not having a functioning judiciary.

And Loki, do us all a favor and just shut up about court rulings? You always make this claim, but you never both to read even the full decision, much less the cited precedents. Having gone over the ruling a third time, and after having checked the primary precedents, I'm no longer sure the 6th Circuit is wrong in its ruling at least with regard to the letter of the law. I still feel they are somewhat at odds with the spirit of rulings in prior cases *and one of those cases was, IMHO, wrong in its own extension of the other case's precedent* and am absolutely sure the current Supreme Court would overturn this 6th Circuit ruling if they chose to grant certiori, but that doesn't mean they're engaging in any abuse of their office.

On what basis did they arrive at this ruling? Was it through an objective analysis of constitutional law and precedent? Or was it by twisting law and taking extremely generous interpretations of precedent to arrive at the decision they wanted for political reasons?

Edit: Here's a model of the current situation:

Let's assume that judges, like most other people, care both about their career prospects and the implementation of their political/ideological preferences.

What does this mean? First, if their career prospects are not affected, judges will decide in a manner that's most consistent with their political preferences. Second, judges will expand the reach of the judiciary to the greater possible level in order to have the ability to implement their political preferences. Third, judges on higher courts have an incentive to overturn decisions of lower courts if their preferences diverge, but they have no incentive to limit the reach of the judiciary. And fourth, if judges want to maintain their privileged position in society, they cannot so blatantly ignore existing law that the public would fully turn on them. This means that all verdicts will be justified by some application of law and precedent.

Is this a tolerable situation?

[Hazir]

We'd be a banana republic if our government didn't enforce our courts' rulings.

Well, and that would be entirely irrelevant if we'd need a banana republic to defend the rights of the people against judicial tyranny, which was the problem you were addressing.

[Dreadnaught]

That education funding case is interesting. Here's a brief account from the plaintiff that might clarify things:

http://www.cfequity.org/static.php?p...gory=resources

I believe they work in tandem with the teacher's union in our state.

Though I don't see anything in that background that really helps explain much beyond that they spend a decade or two in the courts trying to get more money for schools (even though our state spends just-about the most on education per student in the country).

In other words, they have spent all their time fighting for more money. When money isn't the problem. But that's sort of a side track from the issue we're discussing.

[Aimless]

Wow, it scares me to think that nine wizened old men and women bear a great deal of the responsibility for curtailed stem cell research, NCLB, and the Iraq War :-S

[Loki]

Well, and that would be entirely irrelevant if we'd need a banana republic to defend the rights of the people against judicial tyranny, which was the problem you were addressing.

It's the lesser of two evils.

[LittleFuzzy]

An unaccountable judiciary is preferable to not having a functioning judiciary.

Then your ridiculous assertion defeats itself.

On what basis did they arrive at this ruling? Was it through an objective analysis of constitutional law and precedent? Or was it by twisting law and taking extremely generous interpretations of precedent to arrive at the decision they wanted for political reasons?

I'm not going to waste my time exhaustively explaining and justifying a ruling I don't agree with to defend it from your hysterical and baseless allegations, since it would put me in the position of having to try and prove a negative, all for something you won't even read read!

Edit: Here's a model of the current situation:
*snip*
Is this a tolerable situation?

Didn't read anything in there, don't care. It can have no accuracy or validity, prima facie, since you won't make any effort to actually research the rulings which make up the material you're opining on.

[Loki]

Um, incentives faced by judges are not suddenly altered just because a given ruling is valid or not. Do you disagree that those are the incentives faced by judges?

[LittleFuzzy]

Um, incentives faced by judges are not suddenly altered just because a given ruling is valid or not. Do you disagree that those are the incentives faced by judges?

I'm not going to agree with anything you say. I'm applying to you the reasoning and judgement you're trying to apply to judges, and I'm not about to accept the ridiculous games you attempt to play with examples and frameworks. If you want to have a discussion, fine. Be prepared to base it in the relevant material, and refrain from trying to lead my by the nose through a logic chain with severe GIGO problems.

[Loki]

If you read the first post, you'd see the case in question was meant to illustrate the problem; the thread isn't about that case (or any case).

[LittleFuzzy]

If you read the first post, you'd see the case in question was meant to illustrate the problem; the thread isn't about that case (or any case).

And if you read my reply last reply from yesterday evening, you'd see I pointed out that this behavior of yours has held every time cases or judges come up. How do you expect me or anyone else to listen to a thing you say about how judges make decisions when you never actually read their decisions? If you're not talking about cases at all I can see your point in rejecting my comments, but if that's true then what are you talking about? In what other way are judges relevant at all if not through their decisions in and for cases.

[Aimless]

Loki's many faults aside, it looks like judicial activism has been a concern for many many years, and--at least occasionally--for good reason.

Are there any studies on this sort of thing? Eg. how often decisions are overturned by a higher court, what influences the outcomes of appeals, etc?

And, btw, are there really no checks on the power of the Supreme Court? All I have to go on is the wiki article and, while it paints a slightly scary picture, the court's power to engage in judicial activism doesn't exactly seem limitless.

How important is this business of being bound by precedent anyway?

[Aimless]

I'd like to know which legal document gives the judiciary the right to unilaterally decide what a "sound education" costs, and why being one of the highest spenders on education in the country doesn't meet the "soundness" BS they pulled out of their behind. There are certainly political arguments to be made here, and the legislature would be within its right to increase (or decrease) education funding. My problem isn't with the increase in funding, but rather the fact that the courts think they have the right to legislate policy out of thin air.

I don't know how this sort of thing works. If you keep appealing a lawsuit long enough then sooner or later you'll end up at the state supreme court, right? If it's a matter of constitutionality then it's not surprising if it ends up at the state supreme court, right? I dunno 'bout courts abusing their power or unilaterally deciding anything. From the looks of it, some judges have sided with the plaintiff and some haven't. There's also been an investigation into the matter to try to ascertain relevant facts (eg. are all NY kids getting a sound education/is the funding adequate for ensuring that they get a sound education). And someone argued that a "sound education" is an eighth grade education It's great that NY spends more than everyone on education, although my impression is that the problem here was more with inequalities in how that funding is being used.

[LittleFuzzy]

Loki's many faults aside, it looks like judicial activism has been a concern for many many years, and--at least occasionally--for good reason.

Meh. May or may be an issue but at this point it's really hard to tell. Judicial activism has become like the Socialism! pejorative on here. If a court makes a decision someone doesn't like, well that's judicial activism. If it is an issue, it's much more esoteric than it is made out to be.

Are there any studies on this sort of thing? Eg. how often decisions are overturned by a higher court, what influences the outcomes of appeals, etc?

Almost certainly but I'm not familiar with any.

And, btw, are there really no checks on the power of the Supreme Court? All I have to go on is the wiki article and, while it paints a slightly scary picture, the court's power to engage in judicial activism doesn't exactly seem limitless.

It depends. The only formal check is that, as was pointed out here, the courts have no enforcement power. They rely entirely on the other branches. Loki tries to claim this is a red herring because no modern state can ignore its judiciary, but the courts are most certainly aware of that check and are heavily influenced by it, and just as importantly, they're well aware of their limits to get the general public to do anything. The battle to desegregate demonstrates how HARD it is for the courts to get an unwelcome decision accepted, and it had the active support of Congress and the executive for that.

How important is this business of being bound by precedent anyway?

Really hard to get a solid hold on. It is profoundly cultural, a classic example of 'soft power.'

[Hazir]

It's the lesser of two evils.

Which is why we have this Trias Politica thing written into most constitutions; the powers of all branches are limited from the get go. What you call a failure (banana republic tactics) is an actual and intended check on the power of the judicial branch.

@aimless; that also answers your question. Government has the option of treating every single ruling as casuistic and changing the law to deny a ruling having further reaching effects. It would be open warfare and undesirable, but within the constitutional framework.