Bride of Chefjef on Judicial Nominations

***
Sorry for paltry blogging of late--have been TDY and on leave with no WiFi. In this post, Chefjef continues our ongoing conversation concerning judicial nominations. My comments follow his.
Monk
***

I understand your point. Personally, I find conservative activism a broader danger than liberal activism. Yes, liberal activism tends to be softer on crime than I care for, and a little to quick to redistribute my miniscule wealth. But more alarming to me, conservative activism tends to give the government too much power in restricting personal freedoms, paves the way for corporate bodies to abuse the market, the consumer and its employees and gives law enforcement WAY too much power.

Also, while I honestly do understand your concern for that judges implicit argument that the defendant should receive a lighter sentence because he saw the murders as some sort of social justice, that is not a “wacky leftist” idea. An extreme emotional state (I’m not saying that defendant had one) has been a basis for lighter sentence for centuries. For example, a “heat of passion” murder – e.g. you catch your wife in bed with some other guy and in an immediate rage kill them both – is classified in most states as voluntary manslaughter, not murder, and has a lighter sentence than murder. Furthermore, this sort of mercy comes not from the left, but is an indirect by-product of the old equity courts – ecclesiastical bodies (which we’ve previously discussed).

Still, whatever the precise legal definition, it's clear that the phrase “activist judge” has become a conservative code-word for "liberal" judges whose decisions don't toe the conservative ideological line.

Supreme Court Justice William Rehnquist has for years been railing against the alleged dangers presented by "judicial activism." But recently, as was seen with the Terri Schiavo case, many conservatives have ratcheted up the rhetoric, giving the impression that the American legal system is being run by liberal neo-Nazis who are so evil that they want to starve the disabled. Since I never weighed in on the issue, I’ll use it as an example.

First, a 1990 Supreme Court decision established that a person in a "consistent vegetative state" has a right to be removed from a feeding tube. That decision dealt with the case of Nancy Cruzan and was supported by liberal and conservative judges.

In a 1997 case, Mr. Originalist himself, Chief Justice William H. Rehnquist, wrote that the Constitution protected "the traditional right to refuse unwanted lifesaving medical treatment." (where is this in the Constitution? Must be one of those liberal penumbras). Liberal judicial activism? "The district court's carefully thought-out decision to deny temporary relief is not an abuse of discretion," wrote appellate judges Ed Carnes, an appointee of President George H.W. Bush, and Clinton appointee Frank M. Hull.

Who was the dissenting judge? Charles R. Wilson, a Clinton appointee, who wrote, "I fail to see any harm in reinserting the feeding tube."

The full appeals court, by a 10-2 vote, also declined her parents' pleas.

Chefjef

********

Of course you think "conservative activism" is a greater threat than "liberal activism"--You're a liberal! There's a larger context here, though, that transcends "conservative" and "liberal" labels, except in the most short-term sense. The left's current errors of commission in our courts and underlying judicial philosophy are motivated to a large extent by relativistic materialism and this worries me far more than partisan specifics--who's on what side of which issue and who "wins"--do. This is not a problem that is unique to the left. Every fascist in history--including Saddam Hussein, who, we should be reminded, was an enemy born of the "right," not the "left" (if those terms have in meaning in this context)--has looked at the world from a similarly Godless, relatvist perspective. I've made a point of examining others from time to time.

As to "extreme emotional states"--I'm sorry, but in common-sense terms the idea that a perp should get a lighter sentence because he killed in the name of his pet social cause is patently absurd. If anything, he should get a stiffer sentence (I know, I know: how? electrocute him, then dig him up and hang him?). This is not the same as killing "in the heat of the moment," however. Crimes of passion I grant. The perp in question killed in cold blood, made colder by his notions of "social justice" (which seem to have amounted to, "kill whitey"). If this is a defense that gets the murderer any lenience, then Hitler, Stalin, Mao, and Pol Pot should have a shot at insanity defenses. If anything, in modern touchy-feely, warm-squishy parlance, this was a "hate crime."

The judge who wrote the opinion and his concurring associate put on the Urim and Thummim of relativism to somehow translate what should have exacerbated the crime into something that argued for leniency. I don't care what the letter of precedent says, this is clearly contrary to the spirit of the law. "Whacky leftist" or "rightist," it's ridiculous.

Of course, as a military man, I would prefer a more direct solution: take the rat-bastard out behind the courthouse and shoot him. Issue Resolved. Questions? Sadly, we can't even do that in the military any more. What's the world coming to?

With respect to Terri Schiavo, I've never doubted that the various courts were right within the strict letter of the law. Further, no sane person on the pro-Terri side of that debate questioned the right of a third party to terminate feeding of an individual who truly was in a "persistent vegitative state." My concern throughout was simply that she might not be in such a state and that no court had ever taken the time to rationally and professionally re-examine whether she was, given that there were doubts about the husband's motives and the doctor's stake in saving his reputation if his diagnosis was amiss. If it came back from qualified professionals (which the judges weren't) that she was a flatline, then fine: pull the plug. If she was just a severely retarded individual, however, then the courts should have erred--note that word carefully--on the side of life, regardless of relativist judgments concerning her "quality of life" or lack thereof.

Make no mistake--relativists on left and right saw the issue perfectly. The case was about the maleability of man and the definitions of "human" and "non-human." They sought some leyway, however small, in being allowed to redefine "human." All relativist materialism eventually involves an exercise in redefining humanity into "mine" and "not-mine" groups. Of course, everyone does this, but relativists often enthrone the philosophy behind the "mine-not mine" decision as a god and thus give the categories the cachet of divinity, whereas our God tries to restrain us from acting on these self-defined categories. He loves us all equally--even that murderer--and thus we are all joined in a fundamental sense--and enjoined not to devalue the life of another--at least not without damn good reason.

And finally, no...I don't see any inconsistency between shooting the perp and saving Terri, although you can certainly hold a morally defensible position that killing both was wrong. See C.S. Lewis' Humanitarian Theory of Punishment for my position on the subject.

Monk