Round Table Disscussion - Part IV

[Nightshade]

Me and Rust had an interesting debate about the role of judges in relation to the law. There is definitively a difference of judicial philosophy that would make a good round table discussion. So with that said here are the following questions put forward in the round table.

Do you think judges create policy or shape the policy through their court decisions, or a little bit of both?

What do you think the proper role of a judge is in making their decision regarding case law?

As always all questions are esoteric, there is no right or wrong answer to the question, just what you think.

[Rust]

I'll go ahead and agree with the long list of other legal scholars on the issue that Judges, in particular those judges in the court of appeals which is what we (and Sotomayor) were talking about, do make policy. "Make" here meaning that while the legislation passed by the Legislative branch and not the Judicial branch, what exactly that legislation entails or doesn't entail in practice is born out of the judge's decision.


"Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals ... It is thoroughly uncontroversial to anyone other than a determined demagogue."


"It's unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said. "To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist," Garrow said."


"She's not wrong," said Jeffrey Segal, a professor of law at Stony Brook University. "Of course they make policy ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."


"The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty-five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy-making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post-1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion."

-- Oxford Companion to the Supreme Court of the United States


"... it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along."

[The Better Version]

I would say it's a little bit of both. For the most part, though, I would say they shape policy more so than make policies given the fact that it's the Executive branches job to do that. However, in cases where it is more or less beneficial for most people or if they are pressured into ruling in a certain way, they may create policy, which to me is a shame. It's really not their job to create policy. That should be left up to the Executive branch if it is in their jurisdiction....otherwise, it should be left to the states.

[Nightshade]

I'll go ahead and agree with the long list of other legal scholars on the issue that Judges, in particular those judges in the court of appeals which is what we (and Sotomayor) were talking about, do make policy. "Make" here meaning that while the legislation passed by the Legislative branch and not the Judicial branch, what exactly that legislation entails or doesn't entail in practice is born out of the judge's decision.


"Eric Freedman, a law professor at Hofstra University, was equally dismissive of this emerging conservative talking point. "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals ... It is thoroughly uncontroversial to anyone other than a determined demagogue."


"It's unfair to extrapolate that comment to suggest Sotomayor would mandate policy, he said. "To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist," Garrow said."


"She's not wrong," said Jeffrey Segal, a professor of law at Stony Brook University. "Of course they make policy ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."


"The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty-five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy-making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post-1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion."

-- Oxford Companion to the Supreme Court of the United States


"... it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along."

So are you gonna tell us what YOU think or what some scholars think? Or did stupid me (in your opinion) miss that. :rolleyes:

[Rust]

So are you gonna tell us what YOU think or what some scholars think? Or did stupid me (in your opinion) miss that. :rolleyes:

I already told you what I though. I'll highlight it for you if you want:

"I'll go ahead and agree with the long list of other legal scholars on the issue that Judges, in particular those judges in the court of appeals which is what we (and Sotomayor) were talking about, do make policy. "Make" here meaning that while the legislation passed by the Legislative branch and not the Judicial branch, what exactly that legislation entails or doesn't entail in practice is born out of the judge's decision"

If you want me to go more in depth, then ask. But please don't imply that I didn't post what I thought on the matter, when I certainly did. It only helps me prove my point that you're a moron.

[Nightshade]

So why did you have to post what other people think to support what you think? What's the matter, can't think on your own or form your own opinions?

Hmm...guess not. Which BTW is what the round table is all about, telling us what you think, nothing more and nothing less. It ain't my fault you can't follow simple directions. Maybe you should take a look at how The Better Version posted as an example. But all means go into depth as to why you think that way. Let your thinking and opinions stand on their own merit.

[Rust]

And here I thought there was no right or wrong answer to the question... Oh that's right you're still butthurt so you're trying to find reasons to complain. Hilarious! :lol:

I posted what other people think because what the role of the judiciary is in reality is something we can actually verify. We can verify whether the judiciary does in fact make policy in reality. It does. The experts I provided agree and bolster that fact.


Anything else?

[Nightshade]

You know what think whatever you want, it is obvious that you feed off this and get some sick twisted pleasure from it so I am cutting you off. Go find someone else to feed off of.

Still, it is clear you did not grasp what the concept of the round table is. You posted your thoughts in three lines and then buried them in twenty one lines of what other people think. Worse yet, you didn't even surround what the other people said in quote brackets to separate what you think and what other people have thought. That is not what the round table is all about. So with that said here is what the round table is all about.

The round table is a place where free thought reins. It is a place where people can think about the question and post what they think about it for other people to see what other people think. Hence why the questions I post are esoteric, and have no right or wrong answers. Debate on the round table is okay so long as the debater does not imply that debatee is right or wrong. Rather what they think of the other person's point of view and thoughts of the question at hand.

Keep that in mind when posting in the round table. That is all and thank you.

[Rust]

You know what think whatever you want, it is obvious that you feed off this and get some sick twisted pleasure from it so I am cutting you off. Go find someone else to feed off of.

Please, not need to get melodramatic. This is just a case of me being entertained by you making a fool out of yourself. It's that simple.


Still, it is clear you did not grasp what the concept of the round table is. You posted your thoughts in three lines and then buried them in twenty one lines of what other people think. Worse yet, you didn't even surround what the other people said in quote brackets to separate what you think and what other people have thought. That is not what the round table is all about. So with that said here is what the round table is all about.

1a. You don't decide what other people can post. That's up to them. You might want an ideal situation, and you can express that wish all you want, but ultimately you have no say on what they can or cannot post in a threas unless what they are doing is against the rules. Quoting experts on the field isn't against the rules.

1b. I didn't "bury" anything. It was the first paragraph in my post! It was the first thing people would read. And it was about as long as the post The Better Version made, which you apparently had no problems with...

1c. I didn't just "post what other people think" for the hell of it, I posted the opinion of legal experts to illuminate and bolster my own point.

You are merely complaining because you're still butthurt about an argument that happened in another thread. It's getting pathetic now. I suggest you do yourself a favor and shut the fuck up.


2. You should read my post again because not only did I italicize the text I was quoting, but did in fact use quotation marks on the text as well. That's plainly visible in my post. Again, I reiterate my suggestion that you shut the fuck up because you're only adding to the long list of reasons for why you're a moron.

[The Better Version]

Wow this round table discussion got ruined fast. Will you guys stop bickering at one another over something so stupid.

Nightshade:

You have a very good point when you say that he's expressing his opinion through too much quotations and secondary sources. In the academic realm this is looked down upon and is seen as being lazy and not really thinking for themselves. At the same time this is a forum and as long as he is following the rules of this forum and not this topic then it's a perfectly acceptable response, though not well thought out by himself but rather through others.

Rust:

You bring up excellent points, even though they are of someone else's ideas. If you were writing a scholarly essay then it would be considered shit, but this is a forum and is really just a place to express both ideas of your own and of others. If you don't have any ideas of your own on this subject and you full heartedly agree with the experts, then your response is fine and is indirectly expressing how you feel.

Regardless, you guys are diverting away from the whole purpose of this topic. Rust said how he feels and even though it's not necessarily his own ideas (like anyones ideas are of their own these days) they should still count as an opinion and should just be left alone. If you don't like his ideas or his method of expressing his ideas, then just ignore it. By doing that at least you'll spare the thread from being bombarded with bull shit so we can move on and discuss the topic further.

Now.....anyone else have an opinion on the matter?

[Nightshade]

Yeah I have an opinion on the matter, and here it is.

After much thinking, and a crap load of research on this I am in the category of a little bit of both on this one.

When I was saying that judges don't create policy that is true in the aspect that Federal and State courts only hear cases or controversies involving disputes over federal and state law. Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply create policy. We have a legislative branch to draft laws and a Supreme Court to interpret the constitutionality of these laws, as it should be.

However there are times where the federal appellate courts, and to a lesser extent the Supreme Court, hear cases on "grey" areas of the law. A good example of this would be discrimination cases such as Ricci vs. DeStefano. This puts the courts in a necessary position of creating policy within the context of the law by applying precedent, thus shaping and building the law. This to be honest I fault the lawmakers and executives, the creators of law and policy, for passing either accidentally, intentionally, or unknowingly vague laws. Now the thing this is where activist judges on both sides of the spectrum can abuse their power by legislating from the bench. Fortunately it is hard to find concrete examples of this. The only examples I could think of is the Roe v. Wade and Bush v. Gore.

[The Better Version]

Don't forget Hamdan V. Rumsfeld and Hamdi V. Bush.