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October 27, 2008

New op-ed from Senator McCain talking about DOJ and judges

A helpful reader passed along this new op-ed authored by Senator John McCain in which he discusses the future of the Department of Justice and judicial appointments.  Here are snippets that might especially intrigue (and annoy) sentencing fans:

Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.

And now drugs are bringing waves of crime and organized gang activity to rural areas thought to be nearly immune from such problems.  The federal government must both support state and local law enforcement and effectively enforce federal laws designed to root out violent crime, organized gangs and other interstate criminal activity.

None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission.  Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion.  I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals.  I will appoint judges who will hold criminals accountable.

If allowed a follow-up question, I would ask how the Supreme Court's Heller Second Amendment ruling fits into all of this rhetoric.  Judges Posner and Wilkinson have described Heller as an example of legislating from the bench, and I believe that local DC police supported the gun ban struck down in Heller.

In addition, I am wondering exactly why John McCain believes that "Obama's judges would coddle criminals," given that most of the major pro-criminal rulings in recent years were authored by Supreme Court justices appointed by Ronald Reagan.  Justice Antonin Scalia coddled a brutal wife-beater with his decision in Blakely and an attempted murderer with his decision in Crawford; Justice Anthony Kennedy coddled a child rapist with his decision in the Kennedy child rape case and coddled a juve killer with his decision in Roper. 

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October 27, 2008 at 11:15 AM | Permalink


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Justice Anthony Kennedy coddled a child rapist with his decision in the Kennedy child rape case and coddled a juve killer with his decision in Roper

You're right about Scalia's decisions in the Apprendi line of cases, and of course you're right about the general point that McCain's op-ed is full of talking points and lacks the nuance (which isn't much) necessary to speak seriously about judges and sentencing.

That said, I think most of the conservatives who actually understand sentencing think that Justice Kennedy was a mistake and--to the extent that "legislating from the bench" and "coddling criminals" refer to anything that real judges actually do--those comments refer to Justice Kennedy's decisions in Roper and Kennedy. The fact that Justice Kennedy was appointed by a Republican is neither here nor there. So was Justice Stevens, but these days Stevens has more fans among the Democrats than the Republicans.

The more interesting question is what Obama's and McCain's actual views are on appointing judges. On McCain's side, this op-ed suggests that he doesn't understand what judges actually do and would just defer to his advisers. On the other hand, he was part of the "Gang of 14" and might be interested in trying to nominate the sorts of judges who would be confirmed by consensus instead of by a bare majority.

For Obama's part, he's said a bunch of different things. To his credit, he came out against Kennedy shortly after it was decided. On the other hand, he's said in his speeches that his primary criterion is empathy or something like that. If he wants judges who will decide cases based on their emotions, or judges who have interesting life stories but who aren't necessarily good at "law," then his ideal judge might just be Justice Douglas.

As S. Cotus would say, though, all we really have is the candidates' speeches made to non-lawyers, who are gullible and don't count, so take all of that with a grain of salt.

Posted by: | Oct 27, 2008 11:59:01 AM

Does anyone other than the theocractic fascists on the extreme far right take this whining recital of anti-rights, anti-liberty talking points seriously?

Behhhhhh liberal activist judges.... wahhhhhhh legislate from the bench...... mehhhhhhhhhhh soft of crime.... mmmwwwaaaaahhhh violent criminals out to hurt your children.... blarrrrrrrrrrrrrrr strictly interpret strictly interpret..... bahhhhhhhhh drugs bahhhhhhhhhhh gangs bahhhhhhhhhhh child rape bahhhhhhhhh sexual predators bahhhhhhhhhhhhhhhhhhhhhhh hold criminals accountable bahhhhhhhhhhhhhh bahhhhhhhh bahhh.

Being the loudest sheep in the room doesn't make you a leader. What a jackass. And I take S.Cotus's opinion a step further - candidates like McCain who are not lawyers have no business talking about legal issues. Obama has a law degree and a bar card - his opinion means something. McCain has not spent one day in law school, so his opinion on judging and constitutional interpretation is so meaningless that anyone who listens to what he has to say is committing intellectual malpractice. And of course, when you get a bunch of nonlawyers listening to the ranting of a nonlawyer about legal issues, you get the sort of nonsensical bullshit McCain's espoused right here.

But the bottom line, for all you nonlawyers, is that "coddling criminals" is just another way of saying "preserving the rights and liberties of American citizens." The latter sounds better, to be sure, but they're equivalent. The harder it is for police to catch criminals, the harder it is for prosecutors to secure convictions against the accused, and the harder it is to impose harsh sentences all mean the stronger our rights are from government intrusion and abuse.

The evil theo-fascists like McCain want to take those rights from us, and they use our perennial "fear of crime" to convince us that we should voluntarily relinquish our rights to help reduce crime and save the lives of our children. Remember, once rights are given up, they are never given back.

As I always say, my right against, say, unreasonable searches and seizures is worth well over 100,000 murdered, raped, and tortured children. In other words, I wouldn't give up one iota of Fourth Amendment protection to save 100,000 cute, blond-haired, blue-eyed, rosey cheeked children from being tortured, raped, and murdered. Neither should you. Do I want any children to suffer such a fate? No, of course not. But that doesn't mean I'd give up any of my legal rights to prevent it. And think of all the crime (not just crime against children) we could prevent by allowing the police to search any place they want at any time without requiring probable cause/warrants.

I value my rights far more than I value my safety from crime. We all should. If you don't, then you're horribly unamerican. Rights trump children's safety in a free society. It can't work any other way.

Posted by: BruceM | Oct 27, 2008 2:33:41 PM

I had a post prepared for this, but now that I see that Bruce has not only made my point but credited me, I will save you guys a long post. Instead, here is a short post.

If there is any “coddling” of criminals, it isn’t by judges. It is probably, I would argue, by prosecutors. And it isn’t “coddling” it is the exercise of “discretion” which is what prosecutors love to talk about so much. Most of the major “victories” for the defense bar in the past few years (Blakely, Apprendi, Crawford, etc.) are really just procedures, and a prosecutor can simply exert the extra effort to comply with them. This isn’t coddling.

Strangely, the “substantive” rulings on criminal law are rarely associated with coddling. The biggest one in the past few years is Lawrence v. Texas. This statute actually invalidated a Texas criminal statute, and people that were formerly criminals under Texas law will be allowed to cavort around and have non-commercial gay sex with consenting adults (though whether it applies to non-gays is a gray area). Somehow, McCain doesn’t mention that this actually changes the substantive law.

And, somehow McCain fails to mention that laws banning consensual oral sex between straight people are likely (but not certainly) invalid. After all, it is clear that in the wake of Lawrence v. Texas, many married couples in Virginia started engaged in oral sex (which is still on the books as a felony in Virginia) and the economy thereafter tanked. McCain didn’t mention that, when there is clearly a relationship, and the economy wouldn’t suck if the SCOTUS had not allowed straight people to do this.

And fourth amendment issues: the cops can simply do a better job and investigate things the right way. It might take more money, but nobody said that keeping us safe and our rights preserved was cheap.

Kennedy isn’t coddling anyone. Someone will spend the rest of his life in jail. If the best that people can do is complain that a Democrat will prefer life in prison to the death penalty, then, with all respect, I think you people are arguing over nothing.

Posted by: S.cotus | Oct 27, 2008 4:20:00 PM

S.Cotus surely you are smart enough to see through McCain's talking points to see it's nothing more than code for "I disagree with Roe v. Wade and I will do everything in my power to get it overturned." All these talking points are about abortion, nothing more. If people can be reminded that criminals are out to get their children with the same talking points, even better. It's saying he's extreme pro-life without actually saying it. As you and everyone with half a brain cell points out, there is no consistent definition of "activist" judge or "interpret the law not legislate from the bench." There is no such thing as a school of constitutional jurisprudence that will satisfy either end of the political spectrum 100% of the time. Thus, hypocrisy reigns.

Re: 4th Amendment - Cops are too lazy to investigate. For example, say the cops know you have a prescription for Oxycontin (they can look up the pharmacy records for controlled substances) and they get an anonymous tip you're selling the drugs. They can arrest you, cite the anonymous tip and argue that it's corroborated by the pharmacy records, and charge you with distributing controlled substances. OR the cops could stake you out, investigate your actions, and determine if you actually are selling Oxycontin. The latter takes work and interferes with donut-eating time. The former will likely secure a conviction these days with our former-prosecutor judges and scared-shitless-of-crime jury pools. Why bother doing real police work when you can get a conviction by being lazy? I almost have to take the cop's side on this - the only difference between laziness and efficiency is the end result, as I always say. However, the key difference, of course, is in protecting liberty. A real investigation can not only secure evidence to convict, but it can be exculpatory. Of course cops no longer see their job as finding the TRUTH (including exculpating suspects if that is indeed the case), but rather finding people to convict. Someone in jail = job well done. Doesn't matter if it's the right person. Society sees it as the right person because they're in jail. Circular logic runs modern day america. They're in jail because they're bad, and they're bad because they're in jail. Drugs are bad because they're illegal, and drugs are illegal because they're bad.

Posted by: BruceM | Oct 27, 2008 5:37:38 PM

Bruce M:

It is good to know that you would condone the killing of innocents and all kinds of social disorder rather than give up one iota of Fourth Amendment protection.

It is also good to know that you think anyone who disagrees with you is horribly unamerican.

It is reassuring to note that you are not in a position of authority.

Posted by: mjs | Oct 27, 2008 9:29:26 PM


Ahh the false dichotomy, the logical fallacy that rules modern American discourse.

It is good to know that you would condone the killing of innocents and all kinds of social disorder rather than give up one iota of Fourth Amendment protection.

As I clearly stated: "Do I want any children to suffer such a fate? No, of course not." Clearly I do not "condone the killing of innocents" based on my very own words. Chosing the lesser of two evils does not mean I support that evil.

mjs I know you agree with me. Think how many children we could save each year by lowering all speed limits nationwide to 5 MPH. There would be hardly any traffic accidents, and the few which did somehow occur would not be fatal. We'd save tens of thousands of lives per year, including many children. It would make driving incredibly inefficient, a ten-mile drive to work would take at least two hours. Constant traffic, everywhere, at all times of day, on all streets. But think of all the lives that would be saved. Traffic accidents are a leading cause of death amongst all age groups. Yet I know you are not in favor of saving those lives. I know you would not be willing to get speeding tickets for going 6 MPH on the freeway. And we're not even talking about sacred RIGHTS like the sanctity of one's home - we're talking about the mere privilege of driving.

Since you're not willing to drive no faster than 5mph, you "condone" traffic accidents and the horrible, bloody, mangled bodies of dead children that result from our dangerous roads. You're a horrible person. Horrible.

Ahh the false dichotomy. Yet I'm on record as specifically saying I do not condone children being raped and tortured, only that I won't give up any of my constitutional rights to prevent it from happening. Yet since little minds like yours see issues in binary, you're incapable of comprehending the nuance of middle ground, third (or more) alternate positions. If you vote against a pork-laden, legally flawed bill that would, among other things, provide some funding for prostate cancer research, then you are in favor of prostate cancer. That's how your mind works. It's how most modern american minds work. Poor eduation, no reason to think critically on a daily basis, impaired mentation. "If you're not against it then you're for it" / "If your'e not for it then you're against it."

And yes, anyone who is willing to give up their constitutionally protected rights is horribly unamerican. Our rights are protections from the government. All governments throughout the ages, including our own, have tried to minimize and negate the rights of the citizens in the name of fighting crime and protecting the children. You can have your rights or you can have safer children (or, at least, the illusion of safer children). You can't have both. That is one thing that is a dichotomy, and most certainly not a false one. Freedom and some dead children, or no freedom and safer children. Take your pick. A real american will choose freedom; a coward will choose safer children at the expense of freedom.

Why is it that people no longer recognize that there are costs to living in a free society? Serious costs (I don't mean taxes). Think how many lives we could save from criminals if we repealed the Fourth, Fifth, and Sixth (and 14th) Amendments. According to your logic, either you're in favor of those lives being lost, or your value your rights. Let's say that's the case and ignore the middle ground. Are you in favor of repealing those Amendments to our Constitution? If not, why?

Posted by: BruceM | Oct 27, 2008 10:30:28 PM

Bruce, I don't know if McCain is playing to the abortion nuts. ("Nuts" is a term used by both Democrats and Republicans to refer to the kind of loon that really cares whether some girl gets to have an abortion or not.) Whatever the case, abortion will always be available to the daughters of people that matter.

There are some lazy police departments and some lazy cops and some prosecutors that don't encourage their behavior. There are some hard-working cops and some prosecutors that demand the best from the cops. This varies by jurisdiction and I am not going to make generalizations. prosecutors-turned-judges are not inherently pro-prosecution, nor is the opposite true for judges that used to do defense work. In fact, most close calls I can attribute to the judge's personality or need to achieve some other goal (which can be really ugly no matter what is on his resume). And this goes both ways: sometimes a judge wants to bring the prosecutors in "line" with his worldview and the only way he can do this is making some rulings.

MJS, The Fourth Amendment is not something to be "given up" in the name of something you consider to trump it. If you want to give up some of its protection in exchange for something else, you are welcome to propose a constitutional amendment. However, be advised the the people have little tolerance for any new amendments, and rejected the last two (on gay marriage and flag burning). So, people like things the way they are and you should trying to change the constitution via legislation from the bench.

Roe v. Wade does not so much have anything to do with "killing" of "innocents" but rather what kind of regulation by a state is possible. States are free to allow for all sort of abortions (and even eliminate repeal laws against murder).

Posted by: S.cotus | Oct 28, 2008 12:27:27 AM

S.cotus, I've devised a simple solution to the whole abortion debate - market some drug which causes abortions (an abortifactant) for a benign purpose, such as stomach pains or headaches or allergies, and provide loud, bold-letter warnings about how pregnant women should not take, handle, or touch the drug as it may cause seriou risk of miscarriage/fetal termination. They already market Avodart (for enlarged prostate) with such warnings regarding serious risk of birth defect. Birth defects are close, but what we need is miscarriage. The only thing worse than an unwanted child is an unwanted child with a birth defect. I've discussed this issue here. The right wing abortion nuts (whether democrat or republican) can whine, but they can't get a headache medicine taken off the market because they don't approve of a side effect, which is clearly warned of in all marketing literature, advertisements, drug inserts, and in big bold letters on the bottle. "PREGNANT WOMEN SHOULD NOT HANDLE THIS DRUG AS IT MAY CAUSE AN ABORTION." Oopsie, guess I accidentally handled it... had an old prescription for it, and I forgot about the side effects. No abortion doctors needed. Nothing to make illegal. Nothing to regulate by trimester.

The very notion that the state has an "interest" in an unborn taxpayer/soldier is so disgustingly offensive that it makes me sick every time I hear of it. I want to end this abortion debate once and for all. The whole issue is based on nothing more than racism anyway. Nobody gave a flying fuck about abortion back when black people were slaves. Once slavery was abolished and the black people were freed, they started to reproduce like rabbits while white women could afford the luxury of family planning, i.e. abortion. Once the (free) black population started to grow at a rate faster than that of the white population, all the white racist christians got all scared and uppity and decided something had to be done. If they couldn't own the black people, and if they couldn't force the black people to have abortions, then the only remaining option is to prevent the white women from having abortions - even the playing field. No way they're gonna let white women terminate a future white voter while Mrs. Negro is squirting out her 15th black child on the other side of the railroad tracks. So suddenly it was decided that abortion = murder, abortion bad. No more white abortions. It wouldn't make any difference to black people, as they were not having abortions anyway since they could not afford them.

A century and a half later, and people act like abortion has always been considered "murder" and contrary to the teachings of the Bible. In fact that couldn't be further from the truth. The whole "abortion debate" has its roots in Jim Crow racism - just like drug prohibition (which I could explain too, but that's another long post).

Anyway, on another note... very few judges I've encountered ever did defense work. Here in Harris County, Texas, the death penalty capital of America, all 29 criminal district court judges are former Harris County prosecutors. District Judge is the highest position in the DA's office. The judges go out of their way to secure convictions and prejudice the jurors against the defendant - who must be guilty because he/she is there. They see their job as to get a conviction that will be upheld by the appellate courts. That's their singular goal. An acquittal is every state court judge's worst nightmare - it means they fucked up and it will be held against them come election time - they were "soft on crime" and "allowed a _____ (type of criminal) to walk back out on the street against the wishes of the victim." I much prefer judges appointed for life - in my opinion it is a blatant violation of public policy to allow judges who hear criminal cases to be elected. It's not a job for politicians, and until every voter has been to law school and has a law degree and bar card, it will never be a job for politicians. If we only let lawyers vote for judges, I might be willing to give that a try (must show bar card to get judicial ballot on election day).

People like MJS are too dumb to understand the value of abstract rights. The average person sees rights as abstract, whereas 100,000 raped, tortured, murdered blond haired, blue-eyed, rosey cheeked children covered in blood and semen is not abstract at all - it's tangible and emotionally jarring. Most people, especially those who are not lawyers and don't really know what their rights are would happily trade away any right requested of them to save 100,000 cute, precious little children from being raped, beaten, and murdered. They see it as the right thing to do. In fact, since they are incapable of thinking beyond a false dichotomy, they see the choice as either giving up their rights or supporting the rape/torture/murder of these hypothetical white children.

Incidentally, I use white children in my example because there are well over 100,000 children being raped, beaten, tortured, and murdered in Africa right this very minute. But they're black... not only are the MSJ's of the world not willing to give up their rights to prevent such atrocities, they're not even willing to donate $5 to help mitigate it. Moreover, whenever an "Amber Alert" is issued, or whenever the American media goes nuts with 24/7 coverage of a missing child, it is always a cute white kid with blond hair and blue eyes. Amber alerts don't apply to black kids for some reason. It's such blatant racism I don't see how people don't get riled up by it. (But they'll probably call me a racist just for pointing it out!)

Posted by: BruceM | Oct 28, 2008 4:04:54 AM

>>>The very notion that the state has an "interest" in an unborn taxpayer/soldier is so disgustingly offensive that it makes me sick every time I hear of it.

You know, I am about as pro-abortion as it comes. I think abortions eliminate unwanted kids who would otherwise commit crimes or not become lawyers. But as a tax lawyer, you actually convinced me that there is a good reason to recognize such an interest: in theory these kids might pay taxes. In practice, they won’t.

>>>Anyway, on another note... very few judges I've encountered ever did defense work.

Not my experience.

The rest of your post shows that you never practiced as a lawyer. Even in Texas people are acquitted and there is a vibrant defense bar. Sure, Texans has a few problems, but I attribute this to Texans culture of criminality and lawlessness. Moreover, if I recall correctly, not all the judges in Harris county went directly from the DA’s office to the bench. Many of them were in private practice first, which means often means representing you people in criminal matters.

Posted by: S.cotus | Oct 28, 2008 12:14:54 PM

S.Cotus, I'm probably more pro-abortion than you - I think abortion should be subsidized by the government - free abortion clinics on every street corner. And some abortions should be mandatory. I also believe abortion should be legal until the fetus turns 18 years old (up to the 75th trimester). Before you tell me that teenagers are not fetuses... go spend 10 minutes with one and get back to me.

Before going off into corporate law I spent 3 years doing nothing but state and federal criminal defense in Houston. I'm extremely cynical about the process - even when I got acquittals (no thanks to the judges). There is a vibrant defense bar in Houston (Harris County), but that doesn't negate the fact that every single state criminal court judge in the county is a former prosecutor from the Harris County DA's office. All 29 of them. Every single one spent years locking up people. I know one county court (not district court) judge who spent a few months between the DA's office and being an AUSA doing white collar defense work. Big deal. None of these judges has ever defended a client accused of something horribly unpopular. All of them want to see the defendant locked up and will do everything short of directly contradicting clear, bright-line caselaw to ensure that the defendant is, in fact, convicted. A few other judges were in private practice before or after joining the DA's office as a prosecutor, but not doing criminal defense - one of them I know practiced oil and gas law at Baker Botts.

Right now every judge on the Harris County criminal bench is a former prosecutor. Every single one of them. There's a reason Harris County is the death penalty capital of Texas (and thus the world).

Now, once you leave Harris County and go to some smaller counties like Liberty County, for example, you can actually find some judges who are not former prosecutors and who will give your client a fair trial. Hell, the fairest state-court trial I ever had was up in Liberty, Texas.

Posted by: BruceM | Oct 28, 2008 4:30:17 PM

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