pageok
pageok
pageok
Judge Pryor on Criticisms of the Judiciary:
In today's Wall Street Journal, Eleventh Circuit Judge William Pryor responds to concerns that the judiciary today is under attack. I tend to think Judge Pryor has it about right. Thanks to Feddie for the link.
Daniel Chapman (mail):
His examples of modern-day criticism of judicial decisions are amusing, if understandable. Yes, some people disagree with criminal sentencing and tort law, but luckily those can always be corrected through legislation if the political will is there.

When I read "Many Americans today believe that more recent decisions of the court are also terribly wrong," I can almost hear a voice whispering "abortion" in the background, but he avoids it entirely. How... tactful.
10.4.2006 5:02pm
new lawyer (mail):
Pryor argues that courts have only the legitimacy of their opinions to rely on for power over the other branches of government. That's correct as far as it goes, but he doesn't really address the impact it has on the judiciary whenever partisans on the right and the left to scream "activist judge" whenever a decision comes down that they disagree with. Given that the judiciary's sole source of power is the legitimacy of its judgments and opinions, is it surprising when judges get defensive when that legitimacy comes under attack? Even if that attack is relatively minor in comparison with those in (either) Justice Marshall's day...
10.4.2006 5:09pm
LotharoftheHillPeople:
new lawyer,

But surely Justice O'Connor is a weird person to complain about this: She just did what she felt like for 25 years, without caring much about silly lawyer stuff like precedents and text.
10.4.2006 5:19pm
Rex:
I disagree both with the substance and the implication that this is a partisan issue. Regardless of whether it is true that the current threats against the federal judiciary are historically mild, I don't see that as a reason to criticize people like O'Connor speaking out against it. From jurisdiction stripping bills to casual death threats by radio personalities, there are presently unreasonable attacks on judges that should be condemned.
10.4.2006 5:43pm
SteveMG (mail):
As a relatively new resident of L.A. (that's Lower Alabama for you less sophisticated types), I can with some confidence state that even down here (as the saying goes) there is respect for judicial independence and the role of the courts in protecting liberties.

Remember, Judge Moore was removed from the bench by his associate justices. Public opinion polls of Alabamians at that time showed overwhelming support for his removal. And as Judge Pryor mentions in his piece, all - that is all - of Moore's acolytes have been soundly defeated in Republican primaries. That's the primaries and not the general election.

To be sure, there was a lot of discontent and grumbling over some of these federal courts rulings; but, again, polls showed that the vast majority of folks agreed that they had the final say in such matters and that Moore was wrong to ignore those rulings.

Grumblings do not equal a serious threat to judicial independence, notwithstanding Justice O'Connor's entreaties.

SMG
10.4.2006 5:52pm
Anderson (mail) (www):
She just did what she felt like for 25 years, without caring much about silly lawyer stuff like precedents and text.

That sounds like something written by someone who's heard about O'Connor on talk radio, not by someone who's actually read her opinions.
10.4.2006 5:52pm
LotharoftheHillPeople:
Rex, who says that it is a partisan issue?
10.4.2006 5:53pm
Houston Lawyer:
Some of our justices have been making law up for so long that they now believe that they should be above criticism as well. I guess we're luck to be able to look directly at them without suffering any penalty.
10.4.2006 5:59pm
Daniel Chapman (mail):
And who criticized Justice O'Conner for speaking out against "threats against the federal judiciary?"
10.4.2006 6:00pm
AF:
Pryor is right that the historical claims of Justice O'Connor (and Justice Alito) are questionable and that their cries of alarm are somewhat exaggerated. But he misses their basic point.

The issue is not, as Pryor seems to think, the appropriate tone with which to criticize judicial decisions. The issue is that some critics are going beyond mere criticism and attempting to enact structural changes to reduce the independence of the judiciary. The leading paragraphs of O'Connor's op-ed document some of these initiatives (eg, the Feeney Amendments, jurisdiction-stripping laws, etc.). O'Connor and Alito are opposing these policies and defending judicial independence as a political virtue; they aren't simply arguing that judges should be free from criticism.
10.4.2006 6:08pm
Jake (Guest):
Justices can either exercise political power, or be free from political influence. Not both.
10.4.2006 6:20pm
JohnO (mail):
I pretty much agree with Judge Pryor. I personally don't think that criticism of judges has gotten out of hand. I think it's okay for political types to criticize judicial decisions and to do so harshly, and even to openly criticize individual judges and to question their fitness for office. Judges criticize people all the time in their opinions, even, as Judge Pryor points out, each other.

I don't think it's okay for members of coordinate branches of government or state officials to suggest that they will not comply with the orders of federal courts, or to suggest violence against judges.

As for court-stripping and similar measures, the Constitution places much of the federal courts' jurisdiction subject to the democratic, political process. I don't think there is anything wrong, from a structural and moral standpoint, with Congress deciding that it will attempt to deprive the federal courts of jurisdiction over certaion classes of issues. Whether that is good policy is another matter altogether, but I don't view such attempts as illegitimate in any way.

And, to be clear, my view is the same regardless of the target. We all heard the things members of Congress and various interest groups said about Judges Roberts and Alito during their confirmation hearings. Some of the things said were (in my view) misleading and disgusting. While I think it is perfectly reasonable to criticize those who strike unfair blows in commenting on judges' performance, the notion of striking hard, but fair, blows in criticizing the judiciary doesn't strike me as the slightest bit illegitimate. Thus, to me, it was the substance of some of the criticisms of Judges Roberts and Alito that I had a problem with, but not so much the notion that people would criticize their views and decisions themselves.
10.4.2006 6:37pm
Insider:
When I read "Many Americans today believe that more recent decisions of the court are also terribly wrong," I can almost hear a voice whispering "abortion" in the background, but he avoids it entirely. How... tactful.

Most tactful. Especially if one is campaigning discreetly in the pages of the Wall Street Journal for a future Supreme Court appointment that might require the votes of a few Democrat Senators.
10.4.2006 6:42pm
margate (mail):
Insider said:
<blockquote>
. . . that might require the votes of a few <i><b>Democrat</b></i> Senators.
</blockquote>

I thought the word was "Democratic," not Democrat, as used in that context.

So what's your point in droping the "ic"?
10.4.2006 6:46pm
margate (mail):
[don't know what happened there. here it is reposted.]

Insider said:

<blockquote>
. . . that might require the votes of a few <b>Democrat</b><i></i> Senators.
</blockquote>


I thought the word was "Democratic," not Democrat, as used in that context.

So what's your point in droping the "ic"?
10.4.2006 6:48pm
Steve Lubet (mail):
Regarding the dropped "ic." many partisan republicans typically refer to the "democrat" party as sort of an in joke, because they cannot bring themselves to call it "democratic."

the justification is that a "republican," as in "republican party," is a person, and therefore the correct analog is "democrat party."

that's a bunch of hooey, of course, because a political party has the right to choose its own name -- there are no rules or style books -- and the party of FDR and JFK is officially the "Democratic Party," whether republicans like it or not.

to illustrate how juvenile (many, though not all) republicans are about this, just imagine a british conservatives insisting that tony blair belongs to "laborer party." it would never happen, but i guess british conservatives are more sophisticated than american republicans.
10.4.2006 7:12pm
Nom (mail):
Saying that jurisdiction stripping is a threat to the constitutional independence of the courts is like saying that presidential vetoes are a threat to the constitutional function of Congress. Jurisdiction-stripping, like the veto, is a method explicitly granted in the Constitution to check another branch.

One could easily turn it around and say people like O'Connor who vocally whine about jurisdiction-stripping are "threatening" the role of Congress to exercise its constitutional function.
10.4.2006 7:21pm
Daniel Chapman (mail):
I think you're reading a little too much into it, Steve.

Btw: I notice you didn't capitalize "Republican." How petty :)
10.4.2006 7:30pm
Steve Lubet (mail):
what do you read into it, daniel? if it isn't a silly in-joke, why do so many Republicans do it?

(sorry about my erratic capitalization, though. i'll try to improve.)
10.4.2006 7:51pm
Daniel Chapman (mail):
First of all, why do you think Insider is a Republican? I think you're assuming his political affiliation because you have a preconceived notion that Republicans leave off the "ic" as a "silly in-joke." Either way, it's silly and harmless, and I obviously didn't mean to start (continue?) a serious discussion.

The capitalization thing WAS a joke. Lighten up!
10.4.2006 8:00pm
OrinKerr:
Steve Lubet writes:

Regarding the dropped "ic." many partisan republicans typically refer to the "democrat" party as sort of an in joke, because they cannot bring themselves to call it "democratic."

Steve, do you have any particular examples of this in mind? I have never heard of this before.
10.4.2006 8:16pm
Steve:
Prof. Kerr: Good summary here.
10.4.2006 8:23pm
billb:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


Can someone who is a constitutional scholar point me to references (cases, Federalist Papers, etc.) that say that the above means the that Supreme Court can have apellate jursidiction removed from it for "...all other cases before mentioned?" I can see how the above could be read to mean that there are types of cases that weren't cosidered at the time of the Constitution's writing where the Supreme Court should have original jurisdiction, or that there are cases in which the Supreme Court only has apellate jurisdiction with respect to either law or fact but not both.
10.4.2006 8:47pm
Master Shake:
Also, a good article on the history of the "ic" removal here


In the conservative media, the phenomenon feeds more voraciously the closer you get to the mucky, sludgy bottom. "Democrat Party" is standard jargon on right-wing talk radio and common on winger Web sites like NewsMax.com, which blue-pencils Associated Press dispatches to de-"ic" references to the Party of F.D.R. and J.F.K. (The resulting impression that "Democrat Party" is O.K. with the A.P. is as phony as a North Korean travel brochure.) The respectable conservative journals of opinion sprinkle the phrase around their Web sites but go light on it in their print editions. William F. Buckley, Jr., the Miss Manners cum Dr. Johnson of modern conservatism, dealt with the question in a 2000 column in National Review, the magazine he had founded forty-five years before. "I have an aversion to 'Democrat' as an adjective," Buckley began.
10.4.2006 8:51pm
Master Shake:
Here is an article written by a NewsMax senior editor and columnist in December 2000 explaining to Republics (I mean Republicans) (and presumably to fellow NewsMax writers) why they should cease using "Democrat" as an adjective. Here's a great part:

A trifling nit-pick?

Not really, when you reflect on how the unflattering practice got started and its grating effect on those Democrats who, nauseated by eight awful years of Clinton-Gore-ism, may well have voted Republican this year and would like to see George W. Bush succeed in the manner he says he wants, as the president of all Americans.
(emphasis added) Man, those were innocent times.
10.4.2006 9:12pm
Appellate Attorney (mail):
Not to perpetuate the off-topic discussion, but I do think there is another reason some people use "Democrat" instead of "Democratic" -- to underscore the fact that the Party is far from democratic in its operations (e.g. the very limited grass-roots influence on the usual top-down control; the undemocratic targeted minority, women, and gay quotas for conventions; etc.).
10.4.2006 9:34pm
Daniel Chapman (mail):
billb: I didn't feel like doing original research, but I figured someone had already done it for me. I googled "Jurisdiction stripping precedent" and got this:

http://www.law.ucla.edu/volokh/blog_data/jurisdiction.htm

I hope you'll find the information helpful and the source acceptable.
10.4.2006 9:38pm
Greedy Clerk (mail):
I agree with Judge Pryor's basic premise: people should not confuse vehement and heated attacks on the judicial decisions (no matter how misguided the attacks are) for calls for violence against the judiciary. The former, including jurisdiction-stripping legislation (that I do not support) are entirely legitimate and are a part of being a public official; judges are not beyond heated criticism. The latter, i.e. calls for violence, are clearly wrong. Luckily, these have been rare, for the most part. But people should stand vigilent against some very real calls for violence: and many prominent Republicans called for violence against the judiciary in the wake of the Terry Schiavo matter, and the Republican Judge who presided over the Schiavo case was for some time under police guard. Thus, those who confuse legitimate and passionate disagreement with judicial decisions with these very real calls for violence do the judiciary no favor by allowing the latter to go ignored and to be defended under the guise of "free speech."

I would also take issue with this statement by Judge Pryor: "The judgment of history has been equally unkind to the decision in Korematsu v. United States." Clearly, Judge Pryor does not read right wing blogs or he would know that one of the most prominent bloggers on the right basically made her name by arguing that Korematsu was not only correctly decided but was good policy.
10.4.2006 9:39pm
LotharoftheHillPeople:
That sounds like something written by someone who's heard about O'Connor on talk radio, not by someone who's actually read her opinions.

Anderson, you often write very insightful comments. And you may be technically correct that this is what the idiots on talk radio say. However, it also happens to be true. If you don't know this, you know less than you think you know.
10.4.2006 9:43pm
Greedy Clerk (mail):
biilb -- I would also refer you to Marbury v. Madison. One of the lesser known, but nevertheless very important, holdings of that case is that the Exceptions Clause (" . . . the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make") does not mean that Congress can expand the original jurisdiction of the Supreme Court -- i.e., make an "exception" to appellate jurisdiction by creating original jurisdiction. By implication, many (including me) believe that the Exceptions Clause means that Congress can remove certain types of cases from the Supreme Court's appellate jurisdiction altogether. And the Supreme Court has so held in a Civil War-era case, though some argue that that case is either (a) no longer good law, or (b) did not actually decide the issue.

Congress's power to create "exceptions" to the Supreme Court's appellate jurisdiction is, of course, limited by all other affirmative limitations on its power -- i.e., the Bill of Rights, etc. So, Congress could not constitutionally make an "exception" to the Supreme Court's jurisdiction for cases brought by Black People or by Jewish People as such legislation would violate the Due Process Clause of the 5th Amendment and the Religion Clauses of the 1st Amendment, respectively. This is my view at least (and many others').
10.4.2006 9:50pm
Greedy Clerk (mail):
Saying that jurisdiction stripping is a threat to the constitutional independence of the courts is like saying that presidential vetoes are a threat to the constitutional function of Congress. Jurisdiction-stripping, like the veto, is a method explicitly granted in the Constitution to check another branch.

Agree, see above.

One could easily turn it around and say people like O'Connor who vocally whine about jurisdiction-stripping are "threatening" the role of Congress to exercise its constitutional function.

Disagree, vehemently. One can believe that jurisdiction-stripping is wrong and a threat to the independence of the judiciary and still believe that it is generally constitutional. I do. To use an example, I believe that it would be constitutional for Congress to impeach and convict Supreme Court justices for decisions that Congress does not agree with --- if, however, Congress decided to start doing that, I would be very much against it, and I think everyone would agree that such impeachment would constitute a threat to the independence of the Judiciary. Using your own words, would you argue that being against the impeachment and conviction of President Bush is a "'threat' [to] the role of Congress to exercise its constitutional function"? I assume not.

By the way, every jurisdiction stripping proposal that I have seen put forward in the last few years are not just incredibly stupid ideas but are in fact threatening to the function of the judiciary -- the jurisdiction stripping provisions on abortion cases, for example, would leave a disparate body of federal constitutional law in the States and in the Circuits on certain controversial issues, where there needs to be clarity. It would further invite people like Tom Parker to ignore binding Supreme Court precedent, such as Casey and Roe.
10.4.2006 10:00pm
Bryan DB:
I don't think the criticism is as mild as Pryor says. Not even a week ago, Newt Gingrich said: "[T]he other two branches have an absolute obligation to render independent judgment [in cases that are] at variance with the national will."

So, every unpopular decision upholding, for example, the First Amendment rights of an unpopular minority should be subject to the overriding desires of the Legislative and the Executive branches? What, exactly, would be the purpose of enforcing the Bill of Rights in that case?
10.4.2006 10:01pm
Mark Field (mail):

Congress's power to create "exceptions" to the Supreme Court's appellate jurisdiction is, of course, limited by all other affirmative limitations on its power -- i.e., the Bill of Rights, etc. So, Congress could not constitutionally make an "exception" to the Supreme Court's jurisdiction for cases brought by Black People or by Jewish People as such legislation would violate the Due Process Clause of the 5th Amendment and the Religion Clauses of the 1st Amendment, respectively. This is my view at least (and many others').


Some have argued that habeas serves as form of due process. That theory would preclude any jurisdiction stripping.
10.4.2006 10:13pm
Daniel Chapman (mail):
We're not talking about habeus corpus, Mark. We're talking about Article III appellate jurisdiction of the Supreme Court.
10.4.2006 10:15pm
Greedy Clerk (mail):
Mark -- Suspension of habeas is dealt with in Section 9 of Article I of the Constitution. It can only be suspended by Congress in times of rebellion and invasion (this is from memory). It is not really an Exceptions Clause issue, as habeas is generally initiated in the lower courts as an original action and the Supreme Court has appellate jurisdiction over habeas cases. In fact, the Civil War-era case I refer to dealt with an appeal from a habeas action.
10.4.2006 10:19pm
SteveMG (mail):
Greedy Clerk:
Re the Blumenthal link and that "many prominent Republicans called for violence against the judiciary".

Which "prominent Republicans" does Blumenthal says advocated "violence against the judiciary"?

Just one name, please. Violence?

SMG
10.4.2006 10:26pm
Appellate Attorney (mail):
I don't think the criticism is as mild as Pryor says. Not even a week ago, Newt Gingrich said: "[T]he other two branches have an absolute obligation to render independent judgment [in cases that are] at variance with the national will."

If the other two branches can't render independent judgments, just what is the purpose of taking an oath to support or defend the Constitution -- as Congress and the President do? After all, you have to know what the Constitution is and says to defend it, and if it needs defense against unconstitutional acts by another branch, you better have rendered that independent judgment or you have violated your oath and betrayed your constituents.
10.4.2006 11:04pm
Greedy Clerk (mail):
Appellate attorney -- Gingrich's statement was more than what you think it was as I heard it. He actually meant to say that Congress and the President can simply ignore a decision if they both agree that it was wrongly decided and pass a law to that effect. That is a radical interpretation of the Constitution, inconsistent with both Article III and with 200 years of precedent from all three branches. Nevertheless, Gingrich's view is hardly an "attack" on the judiciary with which we should be concerned. Many have stated this (very erroneous) view before, including President Lincoln I believe.
10.4.2006 11:08pm
Greedy Clerk (mail):
Stevemg — From the third paragraph of the article:


"Ronald Reagan said the Soviet Union was the focus of evil during the cold war. I believe that the judiciary is the focus of evil in our society today," Keyes declared, slapping the lectern for emphasis.



You can pretend that's not a call for violence, but let's get real. I suggest you continue reading the article, and about the other characters in there (one of whom, quoting none other than [sarcasm] prominent Republican [/sarcasm] Josef Stalin, states re Judges "No man, no problem." The full Stalin quote is "Death solves all problems: no man, no problem." Although the man is technically a member of the "Constitution Party", he somehow finds himself at a lot of Republican dinners and hanging out with a lot of supporters of prominent Republicans like Tom DeLay. Keep reading the article. Also recall Senator Cornyn's (R - Texas) statement in the wake of the Schiavo mess: "I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in - engage in violence." Gee, substitute "judges" for "Muslims" and we all (me included) would go apesh1t.

Thanks for coming out; it was nice knowing you. In the words of the internet of days gone by: you just got "pwn3d."
10.4.2006 11:18pm
Daniel Chapman (mail):
To continue with the internet slang... "lol"
10.4.2006 11:20pm
billb:
Greedy Clerk: Thanks for the Marbury reminder. Not being a lawyer, I haven't had the drilling on it that I probably deserve. :)

Daniel Chapman: Not only does Google know all, but it points us back to one of our illustrious hosts!
10.4.2006 11:21pm
Appellate Attorney (mail):
Greedy Clerk, I don't understand the distinction you are trying to make. The "absolute obligation to render independent judgment" without the ability to act on it in same way seems meaningless to me. Either it means what you say Gingrich says it means or it means no more than "the absolute obligation to have an opinion." But that can't be right, because then there would be no distinction between elected officials in those branches and ordinary citizens, for very view people lack opinions. There is a distinction, one which includes the ability to act; otherwise, no need for the oath of office.
10.4.2006 11:27pm
Steve:
I think full-blown jurisdiction stripping, where Congress purports to remove the ability for any court in the federal judiciary to declare a statute unconstitutional, is a tad more problematic than the textualists suggests. Sure, there's a literal interpretation of the text that would permit it, but the same can be said for the conservative fantasy of eliminating the Ninth Circuit and reconstituting it the next day with a whole new slate of judges.

Can Congress constitutionally pass a statute that says "no federal court may find this statute unconstitutional"? Can they put the same language in every statute, if they choose? Let's hope these theories never get put to the test.
10.4.2006 11:31pm
Mark Field (mail):

We're not talking about habeus corpus, Mark. We're talking about Article III appellate jurisdiction of the Supreme Court.



Mark -- Suspension of habeas is dealt with in Section 9 of Article I of the Constitution. It can only be suspended by Congress in times of rebellion and invasion (this is from memory). It is not really an Exceptions Clause issue, as habeas is generally initiated in the lower courts as an original action and the Supreme Court has appellate jurisdiction over habeas cases. In fact, the Civil War-era case I refer to dealt with an appeal from a habeas action.


Sorry, I left way too much reasoning unstated.

What triggered my comment was Ex Parte McCardle. If habeas is fundamental to due process, then stripping the Supreme Court of jurisdiction to hear a habeas appeal should not have been possible under GC's theory (which, btw, I'm inclined to agree with). Yet the Supreme Court upheld it in McCardle. Whether McCardle is still good law is, of course, debatable.
10.5.2006 12:21am
Jay Myers:

Stevemg — From the third paragraph of the article:

"Ronald Reagan said the Soviet Union was the focus of evil during the cold war. I believe that the judiciary is the focus of evil in our society today," Keyes declared, slapping the lectern for emphasis.

You can pretend that's not a call for violence,

Or we can look at what is quoted and see if there are any imperatives there. Nope, no imperatives so no call to any action, whether violent or not. Perhaps it is in another section but you only chose to quote this section.

One can render a judgement that something is "evil" without automatically asserting that it must be assailed with violence. MLK repeatedly called discrimination evil but he was explicitly against the use of violence. Even Reagan refrained from actually using or urging violence against the Soviet Union. Thus, there is no neccessary connection between such a declaration and a call for violence. That means you'll have to actually submit evidence of a Republican calling for violence against judges in order to support your claim.

Although the man is technically a member of the "Constitution Party",

Then he is not an example of a Republican doing anything. Showing that a Republican has done something means actually using Republicans as your evidence. Guilt by association does not count.

Also recall Senator Cornyn's (R - Texas) statement in the wake of the Schiavo mess: "I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in - engage in violence."

He is in no way advocating violence. He is speculating as to the cause of some people engaging in violence. If I speculate as to why people commit crimes does that mean I am advocating crime? This is such an absurd example for you to resort to that you must have a really lousy argument.

Gee, substitute "judges" for "Muslims" and we all (me included) would go apesh1t.

Why in the world would you do a silly thing like that?


I wonder whether there may be some connection between the perception in some quarters on some occasions where muslims are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in - engage in violence.

Are you now "apeshit"?

Thanks for coming out; it was nice knowing you. In the words of the internet of days gone by: you just got "pwn3d."

Ah, that explains much.
10.5.2006 2:48am
David M. Nieporent (www):
The "ic" "evidence" cited above is rather strange. The Hertzberg column (which is the basis for the MediaMatters one) says that it goes back as far as Harding... and yet somehow manages to skip right over almost every Republican between him and... tada! Joseph McCarthy. (Because obviously there were no other Republicans worth noting between Harding and Bob Dole.)

Then it jumps to Gingrich, but the only concrete evidence it cites about Gingrich is that he wrote a memo in 1990 which instructed Republicans about what language to use. Guess what? Not only does that memo in no way tell Republicans to use the word "Democrat" as an adjective, but the memo itself uses "Democratic".
10.5.2006 3:22am
Lev:

In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish.


Yeah, and that means a judiciary that knows its place in the Constitutional scheme of things.
10.5.2006 4:15am
Appellate Attorney:
[A]s Judge Pryor mentions in his piece, all - that is all - of Moore's acolytes have been soundly defeated in Republican primaries. That's the primaries and not the general election.

It's clear you are pleased at the outcome of Alabama's Republican judicial primaries this past spring. But like Judge Pryor you omit information that undermines your shared conclusion. The so-called Moore acolytes (who were not recruited by Moore at all but were linked with him in spin by their opponents) were all challengers who were outspent by many multiples.

Anyone who has been around the block a few times knows that primary challenges to incumbents are almost always hopeless without a major scandal on the part of the incumbents and big money to support the challenge. Neither was present in Alabama, so concluding that the people of Alabama rejected the challengers because of their supposed backward judicial philosophy is just pounding the table.
10.5.2006 8:29am
chris s (mail):
Greedy Clerk - I think you're off on two of your comments.

First, you say re Pryor - "The judgment of history has been equally unkind to the decision in Korematsu v. United States." Clearly, Judge Pryor does not read right wing blogs. . ."

since when do right wing blogs = judgment of history?

Second, you claim prominent GOPers have called for violence vs judges, and then cite A Keyes, some guy in something called the Constitution Party who hangs out at TX GOP functions, and an elliptical comment by Sen Cornyn. this is pretty weak.

also - S Blumenthal is about as credible to folks who don't share your pol views as M Malkin is to you. cite away, but no one not already convinced will be swayed.

finally, as to the commenters claiming Pryor is lying low on Roe in hopes of the S Ct - I believe at his confirmation hearing he told Sen Kennedy that he believed Roe was wrongly decided. it's not like he's made that view a secret.
10.5.2006 11:30am
Ex parte McCardle:
I chose my screen name here pretty much as a joke (although I'm happy to recommend William Van Alstyne's "A Critical Guide to Ex parte McCardle" to anyone interested in the legal history of this case in its post-Civil War context).

Should I change it to "U.S. v. Klein"?
10.5.2006 2:59pm
whit:
Everybody knows that judges, much like test pilots, surgeons, etc. think they are one step closer to god.

This is totally apparent in how offended so many are by an "attack on judges". What is viewed as valid criticism in regards to other branches of govt. is viewed as "attacking" the vaunted holy judiciary, that is above criticism at all times (except in the 2000 election).

This is america. We are SuPPOSED to attack (verbally) ideas, and actions that we think are wrong, and to work within the system to change what we see as wrong. Personally, i disagree with a lot of what OReilly says, but he *has* opened a lot of judges up for SCRUTINY. That is not a bad thing. In my state, judges are elected, but realistically speaking - few people have much insight into their day to day decisions.

There is a lot of elitism from judges that see their field (law) and their decisions as somehow mostly beyond the public's understanding - that the public shouldn't criticize, let alone "attack" judges when they can;t understand all the complex nuanced issues that these great men in black take into consideration.

gag me.
10.5.2006 3:32pm
Lev:

Everybody knows that judges, much like test pilots, surgeons, etc. think they are one step closer to god.


Absolutely, positively, not true.

Everybody knows that god, much like test pilots, surgeons etc. thinks he is one step closer to judges.
10.6.2006 12:44am
Too much:
"Most tactful. Especially if one is campaigning discreetly in the pages of the Wall Street Journal for a future Supreme Court appointment that might require the votes of a few Democrat Senators."

If you read the op-ed closely you will see that Judge Pryor makes a point to frequently and favorably quote liberal Democrat Supreme Court Justices. The people of Alabama must be embarrassed by such indiscreet pandering by a native son, who as a federal judge, should instead display gravitas.
10.6.2006 1:15pm
Larry Fafarman (mail) (www):
One of the problems is that judges will use the "judicial independence" argument to duck legitimate criticism of their decisions. One example is Judge John E. Jones III, the judge who made the controversial Kitzmiller v. Dover decision on intelligent design in science classrooms. The "judicial independence" argument now seems to be his sole defense of the decision. A few days ago he gave a speech about judicial independence at Kansas University followed by a dialogue session, and he agreed to come to KU only on condition that he would not discuss the contents of his ruling or the process of the trial.
10.7.2006 3:47am
james (mail):
10.10.2006 12:08pm