Thursday, February 11, 2010

Balls & Strikes & The Federalist Papers

A police officer is chasing a guy he thinks ran a red light. Guy pulls around a corner into a driveway, jumps out, and runs into the house to the left of the driveway. The officer gets there just after the guy's gone inside. The officer wrongly thinks that the driveway is for the house to its right, pounds on that door. The homeowner answers, and the cop shoots him, cuffs the bleeding guy, tosses him in the back of his cruiser. He dies from the gunshot. Meanwhile, the guy who ran the light is taking a nap next door. The occupant, who you'll recall was shot, dies from the wound.

OK, this seems pretty clear. The cop really did exceed all lawful authority. He used excessive force. He violated, and grossly, the constitutional rights of the now-dead occupant. There are whole bunches of Supreme Court cases that say so. Even Scalia, who believes that police now exercise a "new professionalism," is appalled when he reads the story in the newspaper. "That cop," Scalia says to his wife over coffee in the morning, "should have to pay serious damages."

So the lawsuit is filed.

Now, imagine that this all happened in Iowa, the lawsuit was filed in state court, and HF2313 has been enacted. "What is HF2313?" you ask. It's a bill introduced on February 5 by Representative Jason Schultz, a farmer serving his first term in the Iowa House of Representatives. Roughly, what it does it give plenary power to judges to make decisions about the law without meaningful reference to much of anything else. In fact, it requires judges to make it up, from scratch, every day.

Specifically, Schultz proposed
1 An Act relating to judicial authority, and making penalties
2 applicable.
1 1 Section 1. NEW SECTION. 602.1100 Judicial authority.
1 2 1. A judicial officer shall not use judicial precedent,
1 3 case law, penumbras, or international law as a basis for
1 4 rulings. A judicial officer shall only use the Constitution
1 5 of the United States, the Constitution of the State of Iowa,
1 6 and the Code of Iowa as the basis for any ruling issued by such
1 7 judicial officer. The only source material that may be used
1 8 for interpreting the Constitution of the United States by a
1 9 judicial officer in this state shall be the Federalist papers
1 10 and other writings of the founding fathers to describe the
1 11 intent of the founding fathers, and if such source material is
1 12 used, the full context of the source material must be used by
1 13 the judicial officer.
1 14 2. This section is not reviewable by the court.
1 15 3. A violation of this section by a judicial officer shall
1 16 be considered malfeasance in office and subjects the judicial
1 17 officer to impeachment under chapter 68.
Got that? The judge must make it up from scratch. Every judge. Every time. Can't look to the past for whatever wisdom might be there. Can't consider what anyone today might say. Just make it up.

Of course, if you believe that the law is absolutely clear on all points, that there's never any ambiguity or uncertainty, that the world is all black and white and that even tree stumps always know the right answer - and are never wrong - then it's just fine. That's the balls and strikes idea of judging, after all: Pay attention and be honest and you'll always get the right answer.

Which raises the question of why have judges at all. If Schultz really wants to make sure that every legal question is decided mechanically, he ought to be calling for the abolition of the judiciary rather than what he is calling for - complete and unreviewable discretion. In his universe (not the one he wants, the one he's actually creating, his Frankenstein's monster of a universe) there are no rules except for mandated anarchy.

None of this would matter much if it weren't for the fact that Schultz isn't just a lone looney. Oh, his proposed law won't be enacted (at least, I trust it won't). But he represents a disturbing trend of people who mistake their ignorance for knowledge, who think that the answer to every question is self-evident and that they cannot be wrong:
Ignorant. And proud of it!
It's easy to fear what you don't understand and to think you can abolish it. Easier than actually trying to understand. And of course, despite the false platitudes offered by everyone (Democratic and Republican Senators as well as the nominee herself) at Sotomayor's confirmation hearing, judging (and especially justicing) actually involves, er, judgment. It's not mechanical. And we can be unhappy with the outcome.

The shame of Schultz's response is that it would virtually guarantee that everyone - including him - will routinely be unhappy with what judges decide.

Schultz can declare all he wants that the world is simple and all decisions easy if you just have the courage to do what's right. But like it or not, he lives in a world of nuance. We all do. And we all do well to recognize it.

h/t Turley

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