I contend that the statement below, "Judges should not commit judicial nullification.", is too broad. The bench, like the jury, is asked to decide conflicts of laws (whether they know it or not), which, when a constitution is in conflict with a statute, judicial rule, or other official act, must be in favor of the constitution. That, when it has the effect of "nullifying" that conflicting act, is not only permissible for the bench or the jury, it is their duty. Now I suspect Clay means nullifying on policy grounds, and I would agree with him on that, but I find most of the problems with the way "law" is given in courts is that what is given is not law at all. It only has the appearance of law. It might have the support of the bench, to the extent that he excludes from argument the constitution (or statutes) as "misstatements of law" and then invents his own. That is the problem of the judiciary today. As a recent example, just consider the conviction of "Scooter" Libby. I suspect the jury was correct that he did the deed of which is accused, but is there constitutional authority in federal court for the charges? If the alleged offenses were committed on the grounds of federal enclaves created under Art. I Sec. 8 Cl. 17, then I would say yes, but were they? Was his testimony to the grand jury, or his statements to FBI agents, made on federal ground, or state ground? Makes all the difference. Congress does not have authority to make "obstruction of justice", "perjury", or "lying to federal investigators", a crime on state territory. None whatsoever. A state does, and if the acts occurred on state territory, he could be prosecuted under state law, even by a federal prosecutor, but he was prosecuted in federal court. That jury needed to ask on which kind of territory did the acts occur, and demand that all issues of law be argued in their presence, and acquit if the territory was not federal, or the law was not argued in their presence. If the law is not argued in the presence of a jury asked to render a general verdict, it is not a jury trial as required by the Constitution, and the due process rights of the accused have been violated in a way that requires acquittal. The bench should have made that ruling, but if it doesn't it is up to the jury to do it.
Clay Conrad <[EMAIL PROTECTED]> wrote: > Judges frequently disagree with each other. That is where dissents > come from. > > As someone who plans on running for a seat on a Texas Court of Appeals > in 2008 -- as a Democrat who is also a member of the DFC, a > libertarian-leaning Democratic caucus -- I am particularly sensitive > to the assertions from the right of "judicial activism." If the last > few years haven't seen rampant judicial activism from the right, I > don't know what the term means. Texas has subjected almost all error > (no matter how blatant, deliberate or egregious) to "harmless error" > review - putting the onus on the appellant to show how the case would > have come out absent the error. Of course, this is an impossible (and > arguably unconstitutional) test in most cases. That hasn't slowed the > courts down in this crusade one iota. > > A judge must NOT be an ideologue. A judge SHOULD be fair and neutral > first, last and in between. A judge should read everything filed, be > willing to do the research, and let the law work regardless of who > wins or loses. If the outcome is distasteful, he can criticize the > law in his opinion, show how and why the outcome is abhorrent, etc. -- > but the law, not his sensitivities, should decide the case. This > approach is almost extinct on both the right and the left. It is the > approach I intend to use. Where I disagree with the law I will still > apply it, yet make sure that my concurrence includes a criticism of > the law in the most scathing terms I can muster: fodder, hopefully, > for a change in the law at a later date. > > Judges should not commit judicial nullification. Judges are the > agent, not the principal. They do not have the autonomy of jurors. I > believe judges who commit judicial nullification are on an entirely > different moral footing from jurors who commit jury nullification: > they do not work as part of a committee of divergent views. Instead > of subjecting the law to the consensus judgment of the community, they > take the law into their own hands. Funny how judicial nullification > is so accepted, yet jury nullification so widely condemned. > > Both the left and the right are guilty of the sin of judicial > activism, but the right is probably worse as they are more numerous > (thus capable of more harm) and generally less interested in > preserving and protecting civil liberties. > > Clay S. Conrad > Conrad, Marteeny & Looney > 11767 Katy Freeway, Ste. 740 > Houston, TX 77079 > tel: 281-597-8818 > fax: 281-597-8284 > www.jurygeek.blogspot.com <http://www.jurygeek.blogspot.com/> > www.buyneworleans.blogspot.com <http://www.buyneworleans.blogspot.com/> > > > In a message dated 3/7/2007 5:50:18 P.M. Central Standard Time, > [EMAIL PROTECTED] writes: > > You should direct your criticisms to Larry Pratt, who is copied on > this message. He might agree with you after further thought. In > this case, it being so unusual for a judge of any persuasion to > break ranks with his tribe, it is worthy of a read. Now we need to > find some lefties to attack from the other side. Of course, we > libertarians do it all the time, but there are no libertarian > judges as far as I know, or at least none willing to speak out. > > Informed Citizens wrote: > >> EXACTLY. My thoughts, as well, when I read the article. >> >> Larry Pratt made some good points but lost credibility when he >> made reference to "liberal" or "Left Wing". LIBERTY and THE RULE >> OF LAW (Individual and private property rights) are being >> attacked most viciously by the so-called "conservatives" and >> "Right Wing" among us and among our Judiciary. > > > > > -- ---------------------------------------------------------------- Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/299-5001 www.constitution.org [EMAIL PROTECTED] ---------------------------------------------------------------- [Non-text portions of this message have been removed]
