Tuesday, March 01, 2005

Judging Judges, Part One; 

Today, the US Supreme Court pulled the plug on the execution of teenagers.

Here's the shocker. The decision was only five to four.

Think about that for a moment. Can you guess who dissented? Rehnquist, Scalia, and Thomas, of course; the fourth? Justice Sandra Day O'Connor. I say "of course" to Scalia and Thomas, despite the fact that both can, on occasion, surprise one. But those are usually "free speech" cases. Rehnquist is also not entirely predictable. But when it comes to state control over the physical bodies of its citizens, all three are depressingly predictable. I wonder what part of "secure in their persons" they don't understand. Oh yes, the constitution does appear to explicitly allow the death penalty, as it does lopping off an arm or a leg as punishment, but would any Justice claim, were a state to start removing the hand or hands of a thief that it was not a punishment both cruel and unusual? As to Justice O'Connor? Can't figure out how anyone who has raised children would think it okay to execute someone who'd committed however terrible a crime at the age of sixteen or seventeen.

Justice Kennedy wrote the majority opinion which makes it unconstitutional to execute anyone whose crime was committed before they were eighteen. The Court had previously made it unconstitutional to execute anyone whose crime was committed at fifteen or younger. The decision affects 19 states where it is legal to execute someone for a crime committed when they were under the age at which they can legally vote, buy a pack of cigarettes or have an alcoholic drink; there are seventy of such master criminals on death rows in those states. From Reuters:

"The U was the only country openly admitting and claiming for itself the right to do this. So the fact that the U.S. has now ended it by this ruling really is a huge step toward global abolition for the death penalty for children," said Amnesty International researcher Rob Freer in London.

He said the United States had carried out 19 of the 39 executions of child offenders that Amnesty has recorded world wide since 1990.

The other countries that carried out such executions were Iran, Nigeria, Pakistan, Saudi Arabia, China, Yemen and the Democratic Republic of Congo. But Freer said even those countries now consider the practice illegal, although they have not all succeeded in halting it.

Using the death penalty against offenders who were under 18 when they committed a crime is explicitly banned by the UN's Convention on the Rights of the Child, ratified by 192 countries -- every country in the world except the United States and Somalia.

"But Somalia has no recognized government. The United States certainly has a recognized government," Freer said.

"It's one of the clearest principles around, which is why it is so shocking that the U.S. has until this time refused to do it," he added.

Thirty eight U.S. states and the federal government have the death penalty, of which 19 and the federal government have an age minimum of 18 for capital punishment, the Death Penalty Information Center, which opposes capital punishment, said.

It said the other 19 states allow the death penalty for juvenile offenders, with five states setting age 17 as the minimum and with 14 states using age 16 as the minimum. In 1988, the Supreme Court barred the death penalty for those 15 or younger at the time of their crime.

The group said 22 inmates have been executed for murders committed at ages 16 or 17 since the Supreme Court reinstated the death penalty in 1976. These executions make up about 2 percent of the total number of executions.

The justices agreed to revisit the juvenile death penalty after the Missouri Supreme Court declared it unconstitutional.

You can read the minimal gist of both the majority and minority opinions here.

I wonder if President Bush is pleased? He should be. If he wants to lead a world wide campaign on behalf of human rights, he should be, because democracy, liberty, and freedom are nowhere more absent around the world than among its children. But then, President Bush isn't really talking about human rights. That would mean recognizing, even just rhetorically, that an international movement on behalf of human rights movement existed well before President Bush's ideas on the subject were born in the molten horror of 9/11. (more on this in a subsequent post)

Take the time to read those little snippets of the dissenting opinion linked to above; they'll tell you a lot about the inability of a certain judicial cast of conservative mind to think in terms of broad principles. I know that is suppose to be their strong suit. I would argue otherwise. For them, to acknowledge that we know enough about human psychology to know that sixteen and seventeen year old kids still have minds that operate differently from those of adults is not enough upon which to stand on principle, they still want juries and judges to have the right to decide if any particular sixteen or seventeen year old might not qualify as sufficiently vicious and/or adult to be sentenced to death.

It's significant that Amnesty refers to the affected defendants as "children." That will undoubtedly give ammunition to those on the right who will rail against activist judges. That's why I used the word "teens." They'll still rail, I know, and teens are part of the larger category of "children," so don't take this as a criticism of Amnesty or any other human rights workers. I just think we're better off, as citizen advocates, trying to speak a language that doesn't provide as many easy bullseyes for those who are making those counter arguments, often to the same set of other citizens that we hope to influence. And this post is the first in what I hope will be a series devoted to developing a way to talk about judges, courts, and judicial appointments that begins to take back more of the argument for our side.

It's not as if we have all that much time. Coming up fast - the first of those re-submitted judicial candidates that the Democrats successfully filibustered. And he's a pip, a veritable Platonic ideal of someone unfit for a federal appellate appointment.

Meet William J Myers. In Salon, where you will learn of the intense and expensive campaign planned by industrial and business interests on behalf of Mr. Myers, who used to lobby on behalf of industrial and business interests, and against advocates of the environment. (Mr. Myers appears to have never met an environment that couldn't be improved by the addition of a little industrial something here and there): In The Progress Report from CAP: (scroll down)

The Senate is scheduled tomorrow to hold a hearing on the nomination of "anti-environmental activist" William G. Myers III to a seat on the 9th Circuit of the federal judiciary. Conservatives are calling efforts to block this nomination "obstructionist." In reality, Myers is an unqualified choice with a long record of hostility toward environmental protections. Myers has drawn opposition from nearly every corner; last year his nomination was blocked after 180 different groups – civil rights, labor, Native American and virtually every environmental organization across the board – came out against his appointment. Here's a look at the Myers activist record:

THE HOSTILE ACTIVIST: Myers has made numerous public statements regarding his philosophy on the federal government's role in protecting the environment. He also attacked the 1994 California Desert Protection Act, which set aside land for two national parks and protected millions of acres of wilderness, as "an example of legislative hubris." In 1996, he also charged that federal management of public lands was comparable with "'the tyrannical actions of King George in levying taxes' on American colonists." He has said there's "no constitutional basis" to protect wetlands. He also railed that "environmentalists are mountain biking to the courthouse as never before, bent on stopping human activity whenever it may promote health, safety and welfare." The cases he was talking about "involved logging on national forests, racial discrimination in the placement of waste treatment plants and protection of irrigation canals from toxic chemicals."

Note that here's a potential appellate judge who doesn't even believe that legislatures have the right to legislate on behalf of the American polity when a tiny sub-section of that polity decides they'd like to do something like deposit industrial waste in the mighty Hudson, which turned out not to be all that mighty, you may remember.

As always, you'll find lots more links there. And for a great analysis of Mr. Myers burnished credentials, you can't do better than this Grist profile from last year, when Myers' first nomination came up, by Amanda Griscom.

Read, think, prepare for action. Bush's assault on the Federal Judiciary is more wide-spread and profound than anything FDR ever dreamed about. So come back again, and let's start the dialogue about how to talk about judging judges.

Next installment: let's talk about the Bork nomination; have liberals forgotten we won that one, or have they been beaten into submission by the SCLM and accepted the ridiculous idea that winning on Bork was somehow an embarrassment?

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