I've been banging this drum since hearing Scalito's tesimony yesterday. I hope today you, dear readers, will bang it along with me. Discuss it, do LTE's about it, shout it from the rooftops:
it's huge, it's real.
First of all, I caught Judge Alito's at least twice contradicting himself in his yesterday's testimony, we're talking under oath here, people.
Second, where he contradicted himself was not on some "technicality", but regarding a fundamental issue in, and problem with, American Jurisprudence over the past 20-25 years: Right Wing Judicial Activism.
Third, he busted himself, and needs to be called on it.
Keep going . . .
I Law Enforcement Excessive Force Case
When testifying regarding the case involving the U.S. Marshall's (allegedly) using "excessive force" on a family who were later been sued civily by that family, Alito testified that he opined that the case should not even be allowed to go to a jury because the officers had "qualified immunity" -- in sum: Alito believed that subjectively these Marshall's believed they had the right to do everything from point guns at this unarmed farm family, to chambering a round in the gun, to knocking the unarmed wife to the ground, on and on. Well, that's all well and fine, except these are facts that were in dispute.
The law (both state and federal) says that if there are "genuine issues of material fact" in dispute, then the case (those disputed facts) must go to a jury to let the jury decide the facts -- whether for or against the Plaintiff, the Defendant. Another way the doctrine (and Rule of Law) is often put by the Court's is "whether a reasonable jury could find for the Plaintiff" -- if the answer is "yes" then the case must go to the jury for the jury to decide. Alito testified that the case should not have gone to the jury because he decided what the facts were.
Busted
Well, here's where Sen. Kennedy, in his questioning, perhaps unwittingly busted Alito on his hypocrisy and RW Activist ways: a little bit flustered, as I recall, by Kennedy's pressing him on the egregiousness of what the Marshalls did, Alito finally admitted that (I quote):
"Reasonable people can view these things differently"
And, yes, the context of that was regarding the FACTS of the case. Busted.
II Race Discrimination in Employment Case
Testifying before Biden (also known as the "The Iron Marshmallow"), regarding the Bray, I think, case, where Scalito once again (as a 3rd Circuit Appellate Judge voted to keep this race discrimination in employment case away from a Jury -- to grant Summary Judgment and have the case thrown out of Court) Alito again admitted:
Busted
"These are facts over which reasonable people could disagree." <--- !!!!!
And, of course, The Iron Marshmallow did not say: "What the hell?! You admit that the facts of the case were such that 'reasonable people could disagree' but that a reasonable jury could not find for the Plaintiff??? What Cracker Jack box did you get your law degree from, sir?!"
Double Standard in Plain View
Alito and his GOP apologists love to go on and on and on about how a Judge "Shouldn't substitute their own opinion for Constitutional Law". Well, besides the banality of this on its face (uh, perhaps your subjective view of what "Constitutional Law or Standards or Doctrine is differs from another persons, dontcha think? Sheesh, what a vacuous and tautological "standard" their upon which their "judicial philosophy" is founded!), they never, never, never, seem to see how unabashedly those words contradict what Right Wingnut judges do in practice by time and time again substituting their own, subjective and agenda-filling and outcome-oriented view of case facts for that of the Jury!
Let's review: Law is to be decided by Judges. They are sort of the referees (or, uh, umpires perhaps? heh) of the judicial process.
Facts are within the sole province of Juries.
When a judge substitutes his or her (Owens) agenda regarding, or opinion of, the facts for that of the jury it's called "invading the (sacrosanct) province of the jury.".
You practicing attorneys out there know EXACTLY what I'm talking about when I say that over the past 10-15 years (the trend started in the early 80's with more RW Judges getting on both State and Federal Benches, but has really picked up steam lately) it is more, and more, and more difficult to get a case to a jury, or keeping a jury verdict in a civil case from being overturned by a panel of RW judges who simply say "the jury got the facts wrong". Infuriating and contrary to the Rule of Law
Context. You all case see, from the cases above, that the practical affect of this is that cops now feel more empowered to use excessive force (True Conservatives and Libertarians should be horrified by this trend and stand up against Alito!) and employers with a proclivity to discriminate know that if they are a little more subtle and cagey in their discriminatory or harassing or retaliatory practices, then RW judges are gonna say, "Don't worry, gotcha back!" Also, these days in the areas of products liability and insurance fraud and medical malpractice RW appellate courts are unabashed in invading the province of the jury.
This is an awful trend. It's already wrought much damage, not only to individuals across our nation, but also to the integrity of our Legal System. Alito is the Poster Child for this Movement and seems to be very "up front" about his unblinking proclivity to invade the province of the Jury, a sacred institution in Anglo-American Jurisprudence.
Alito and his ilk should be "called out" on this: starting with Senators of Conscience on the Judiciary Committee. I know, I know -- I shouldn't hold our breath. Well, then, maybe starting with us.
BenGoshi
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UPDATE: Re the Law Enforcement excessive force case. Some apologist for RW Nutters like Alito has, in the comments, stated that I ignored or did not understand the "Objective" component of the analysis of "qualified immunity." That's bunk. What I noted was that Alito concluded that /subjectively/ the Marshalls in question were just ducky with what they thought they were doing. Well, gee, would you think that they'd take any /other/ stance than that??? As for the *Objective* element of the anaylsis, I admit that I did not address it directly but, in sum, will do so here: Alito opined that /Objectively/ these Marshalls were conducting themselves as "reasonable law enforcement officers" would in the same or similar circumstances.
Here's the deal people: while a judge /*can*/ make that call on the "Objective Standard", in a -- As Alito Himself Admitted -- "close case", a judge who tanks such a case is *admitting* that a case that could go "either way" (or, that "reasonable people could disagree" on what a "reasonable cop would do"), he is demonstrating his proclivity to say: "Stupid juries, I'm afraid that they'd to the "unreasonable" thing and find that (get this) the case could come down on the side that's not /my/ side and, therefore, NO SOUP (Trial, whatever) FOR YOU!
It's the height of disingenousness to declare a "close case" on the facts like this, should not go to a jury. If it's close, then that means reasonable people could disagree, and, if reasonable people could disagree, then, dammit, that's for a *JURY* to untangle.
BG