Eminent Domain

I don't like Dahlia Lithwick very much. I think that Slate's coverage of legal issues is... well, crap. D and Emily Bazelon are basically two sides of the same mouth. I'll give Lithwick credit for writing a great article though. Check this out. It's a comical take on the Democrats' view of the Federalist Society. Yes, the Federalists are human beings. They even feel pain. Some of them might even have emotions. These revelations might be shocking to some of the Democrats on the judiciary committee.

There has been a lot of rhetoric spewed about the Federalist Society recently. At the Alito hearings, Senator Durbin claimed that we didn't want to mention them (then did) because they go crazy or something whenever he talks about them. I'm not a member of the Federalist Society (I'm not big on groups in general, but I think I might make an exception next semester and join), but I don't think they really care when Durbin mentions them. "Oh no. Senator 'GITMO is Gulag' Durbin doesn't like us! Whatever will we do?!" Yeah, not so much.

Lithwick still gets her shots in though. Like this...

Supreme Court workers universally name Clarence Thomas as the kindest and warmest justice on the current court. That is irrelevant to how he decides cases. Very nice, very brilliant, and very well-respected jurists have sometimes been very wrong about what this country needs from its courts.

If you think that the courts should be agents of social change, then I guess you would agree with this. If you are like me and think that the courts should read and interpret the law and Constitution as written, then you probably disagree. Personally, I would rather not be ruled by a judicial oligarchy. Those of you who cannot get your goofy views accepted in the court of public opinion and passed by the legislative branch probably would prefer the judicial oligarchy. Well, you would prefer it as long as you've got the right people on the Court.

The great jurist Learned Hand once said to the equally great jurist Oliver Wendell Holmes, "Do justice, sir, do justice," as Holmes departed to take his seat on the Supreme Court. Holmes responded, "That is not my job. My job is to apply the law." While both of these men are brilliant, Holmes is right in this situation. It is not the role of a Supreme Court Justice to interject his or her ideal of "justice" into their rulings. Their personal feelings about "fairness" and "right and wrong" should not be part of the analysis. Read the text of the statute. Read the text of the Constitution. Then apply legal reasoning. That is the correct process.

There has been so much talk about "siding with the little guy" in the Alito hearings. This is absurd. You apply the law; you don't prefer one type of party to another. To claim otherwise is to thumb your nose at the very idea of the rule of law. As an aside, I would like to point out something. The analysis of Judge Alito's opinions and votes, concerning which type of party that he sided with in a case, is meaningless. First, it ignores the facts of the case and just looks at who was involved. This is not justice; this is prejudice. Second, it ignores the role of our federal appeals courts. At the appellate level, a decision is only reversed if special circumstances apply. The appeals court is not retrying the case from scratch. From the Hartley & Hartley website...

Witnesses will not testify, there will be no cross-examination, and new evidence cannot be presented. The appellate court's job is simple: to examine the underlying record for any legal errors which could have produced a different result had the errors not been made.

The appeals courts differ to the trial court in matters of fact. What is the standard of proof in an appeals court? Same website...

You will have to show not only that the court made a mistake, but that the error was prejudicial, that is, that it led to a reasonable likelihood that a different result would have been reached had the error not been made.

Keep this in mind when you look at the attacks on Judge Alito. Appeals courts are not supposed to reverse the lower courts simply if they disagree with their result. The standard is much, much higher. There has to be such a major mistake at the trial court level that the error would result in an entirely different outcome. As a rule, appeals courts do not like to second guess trial courts (who actually see witnesses, hear testimony, and base their rulings on those findings).

I really wish that the general public understood these issues. Someone who does not know these things could be easily swayed by the appeals to emotion that some of the senators have made at the Alito hearings. It's all politics. It's all a show. It's a shame.