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The federal judiciary is a vitally important part of the national government.  Though nominees to the Supreme Court rightfully receive the heaviest scrutiny, judges on the circuit and district courts can greatly affect the rights and welfare of many.  Progressives need to make a stronger effort to show how a conservative federal judiciary can negatively affect the lives of ordinary Americans - and it is not an impossible job.


The Supreme Court is extremely important - remember the great strides under the Warren Court and the long delay of the New Deal with the Four Horsemen - but lower federal courts should not be brushed aside.  

Federal courts are courts of limited jurisdiction, yet for various reasons they often end up hearing important environmental, civil rights, consumer protection, worker protection, and a variety of other types of cases that may have serious consequences for individuals.  The vast majority of the time, cases are effectively decided at the district or circuit court level - well before they reach the Supreme Court.  This is for a variety of reasons.  One party may not have the money or time to appeal an unfavorable decision.  As well, an upper court will often defer to a lower court's findings of fact, so what the lower court lets in as evidence may in effect decide the outcome of a case on appeal.  As well, the many cases that are not reviewed by the Supreme Court stand as valid law in the districts or circuits in which they are decided.  Thus, having judges who will apply the law fairly and justly matters at all levels.  


I think that many people tend to associate the courts with hihg-profile decisions that actually have fairly little substantive impact on their daily lives.  Decisions about Ten Commandments monunments, campaign finance reform, Guantanamo detainees, etc.  These decisions obvsiously matter to those involved.  And some people take these decisions very seriously who are not directly involved.  But courts also make more relevant decisions that can affect people on a more basic level.  It is these cases, that involve issues of economics or fundamental fairness, that the left should publicize and explicitly link to the right.  In other words, the left should not be afraid to use some of the tactics of the right when it comes to criticizing the judiciary as we will find that there are many cases that reflect poorly on conservative judges.  This is subject to one important caveat however.  We should not make the mistake of demonizing judges on a personal level and we should not criticize the institution of the federal judiciary.  

Two cases are listed below in which should be fairly easy to publicize in order for progressives to connect with citizens who might not currently care about the courts or who have bought the conservative talking-points about activist, liberal judges.  

Slentz v. City of Republic, 2006 U.S. App. LEXIS 11746 (8th Cir. 2006)

Slentz was a police officer with the City of Republic.  He injured his shoulder and underwent surgery to repair it.  The police department told him that he would be placed on leave pursuant to the Family Medical Leave Act (FMLA) and that he could not return to work until his doctor certified him as fit for duty.  By the time his FMLA leave had expired Slentz was not yet certified to return to work and he was forced to resign from the force.  At that time Slentz still had unused paid sick leave that he had accrued during the course of his employment.  Slentz sued, claiming that the city had wrongfully interfered with his rights under the FMLA.  The district court granted summary judgment for the city.

Judges Benton and Smith, two G.W. Bush appointees, formed the majority and affirmed the district court's grant of summary judgment.  The court held that the FMLA required employers to grant employees twelve weeks of leave - no more and no less, and even if they have more than twelve weeks of accrued sick leave the employer is not required to let them use the excess.  In this case Slentz took twelve weeks off under the FMLA and after that time his employer could fire him regardless of the fact that he had unused sick time remaining.  

The dissenting judge accused the majority of disregarding "both the plain language and the plain purpose of the FMLA."  He argued that the FMLA could not be used to deny Slentz's benefits that he earned before taking his leave.  Even if Slentz's sick leave had run concurrently with his FMLA leave he still would have had over 200 hours left at the end of the twelve week period.  That would have been enough time for him to heal and be certified to return to duty.  

This ruling potentially affects the rights of all workers.  You may think that by working hard and not taking time off you are saving time for a future rainy day should you ever need it.  But in the Eighth Circuit it does not matter how much sick time you have not used over the years, your employer can basically rob you of it.  

Doran v. Eckold, 409 F.3d 958 (8th Cir. 2005) (en banc)

The events that gave rise to this case are as follows.  The Kansas City Police Department received an anonymous tip from an untested source that David Doran was manufacturing methamphetamine in his house, that drugs were stashed in dresser drawers throughout the house, and that Doran was selling methamphetamine and crack cocaine out of the front of his house.  The tipster also told police that Doran's son, who lived in the house, had recently been arrested for possessing a sawed-off shotgun and that guns were kept in Doran's bedroom (this turned out to be false).  After receiving this information an officer searched through Doran's trash and reportedly found bags containing methamphetamine residue as well as one empty box of cold medicine, which in larger quantity can be used in the manufacture of methamphetamine.  Based on this evidence the police got a regular search warrant (they did not get a "no-knock" search warrant).  At 10 p.m. police officers broke down Doran's door.  Doran awoke at the sound, and believing (correctly as it turned out) that somebody was breaking in to his house or fighting on his front porch, grabbed a pistol and ran towards the door.  He testified that he realized it was the police and was shot twice as he was setting down his gun.  The officers testified that they yelled at him and shot when he failed to put down his gun.  Doran sustained serious injury.  The police completed their search of the house and did not find a meth lab or evidence of drug dealing.  

Doran sued the police department and the officers involved in obtaining and executing the warrant for violating his civil rights.  At trial the jury returned a verdict in excess of two million dollars for Doran.  The court entered the judgment.  The officers then appealed and a panel court of the Eighth Circuit affirmed the judgment against them.  The Eighth Circuit then agreed to rehear the case en banc.  Sitting en banc the Eighth Circuit, in an 8-6 judgment joined by Bush-appointees Benton, Colloton, Gruender, Melloy, and Riley, vacated the holding of the panel court and reversed the judgment of the district court, denying Doran any damages.  

The majority held that the district court erred in emphasizing the lack of authority in the warrant for the officers to conduct a no-knock search.  The court argued that the Constitution does not require judicial pre-approval for the method by which a search warrant is carried out so long as it is not "unreasonable."  In this case the dynamic entry was reasonable because the officers believed that there was dangerous illegal activity occurring in the house and that there were also weapons in the house.  One of the officers testified that meth labs were generally dangerous and were generally surrounded by armed and dangerous people. As well, the court said, the officers who conducted the search reasonably relied on the information given to them by the officer who obtained the warrant, and that officer did sufficiently investigate the information from the tipster from which he reasonably concluded that it was accurate.  Thus, the court held that exigent circumstances justified the entry into Doran's house and the officers could not be liable for it or the subsequent shooting.  

Judge Heaney, a Johnson appointee, and five other judges who joined him in dissent agreed with the judgment of the panel that the police should be required to make a showing that a no-knock entry is justified whenever it is challenged.  This burden is not high, yet still it was not met in this case.  The dissent pointed to the totally inadequate investigation done by the police to justify the warrant.  The tip about the Doran house came from an anonymous source "with no previous record of reliability" and there was an "utter failure" to confirm the truth of the tip.  The officers failed to corroborate the tip that Doran was dealing drugs out of the front of his house during the day; they failed to see if Doran's son even had an arrest record or lived in the house; and they failed to observe anything that would suggest the presence of a meth lab.  

Judge Heaney concluded:

"I find no reasonableness in the "dynamic entry" into the Dorans' home in the dead of night.  The executing officers knew that the purported exigency was based on stale, unvarying, and largely uncorroborated information, which turned out to be entirely untrue.  Their suspicions were based upon inference built upon inference, with no true factual basis. Moreover, there was no information specific to the Doran home that permitted a no-knock entry.  The officers' view that cases involving drugs and weapons should be excepted from the knock-and-announce principle finds no support in the Constitution.  Nonetheless, it has now been adopted by the majority in this case.  This stands at odds with the Supreme Court's knock-and-announce jurisprudence, and leaves an innocent man with no redress for clearly unreasonable and unconstitutional governmental conduct. I cannot accept the fairness of such a result."

This case upsets common notions of fairness and decency.  What happened to Doran could conceivably happen to any law-abiding citizen and this decision provides no incentive for these officers to change their methods.  Now, anyone who happens to live in the Eighth Circuit and lose the security-from-wrongful-police-home-invasion lottery will have to bear the cost individually.  This should outrage people on many levels.  Little can be done to stop a miffed neighbor from making anonymous, baseless accusations to the police, but the police must at least legally investigate the charges before breaking into a person's home and shooting him.  

By publicizing these cases and cases like it I think the left could counter the message of the right and show that on very important issues that matter to working people a conservative judiciary, which is a result of a conservative government, is detrimental to the interests of the most citizens and that rows over flag burning, and commandments displays are screens put up often to obscure more relevant areas of law where rights and benefits are being eroded.

Originally posted to Gambrinus on Tue Jul 18, 2006 at 08:48 AM PDT.

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Comment Preferences

  •  Despair. (0+ / 0-)

    One too many conversations at the supermarket this week. They don't even understand that Dems are in the minority and what that means. I really do despair any more. But I go back and talk to them some more.

  •  75% of the Judiciary (0+ / 0-)

    That is right, 75% of the Judiciary has been appointed by Republicans, and probably more since Bush took office thanks to that stat being just a few years old.  The lower courts are filled with these appointments and their decisions permeate throughout American's daily lives.  If you actually want to stand up to conservatism and take back the branch, one of the first steps is to take back the courts, a multi-decade process thanks to the idea of office-for-life.  

  •  Important point made (0+ / 0-)

    The writer of the diary is right on.  

    Our family personally was dissed by a state circuit court judge.  It was a gang rape.  One of the criminals was a repeat offender of the same charge,  2nd degree assault to a minor under 16.  
    The judge, not elected, but appointed by the governor to finish out a retiring judge's term, had a yen for poor criminals who owned a pipe.  He believed that they weren't capable of behaving properly because they needed emotional treatment and drug treatment.  
    The sentencing range set by law was 0-10 years for the convictions.  All got ZERO years in jail for the rape charge.  ALL got parole.  All got tax-dollar- paid-for therapies.  
    What did our family get?  A big slap in the face.  Twenty (our insurance paid for) sessions with a counselor.  A lifetime of grief and anxiety.
    Anorexia, low self esteem. No medical help.  Fear.
    What did the public get?  Rapists back on the street, only now they were medicated rapists.  A lower expense at the overstuffed jail because new people weren't needing to be housed.      

    The judge then was elected 2 to 1 in the county!
    The reason...he had money to buy bigger signs and he took out his nomination papers 1st, therefore first on the ballot.
    The voters ennie mennie minny moed the ballot.

    The question is...How can the voters be aware of crappy judges????  This case wasn't in the papers because Jennifer Aniston getting a divorce took up all the print space.  The only ones who knew anything about the judge were the people involved with our case...a handful.  

    The media does the public an injustice when they don't report each and every case as if it were important.

    Another thing...Why a range at all?  0 to 10 years ?
    Why not manditory jail time no matter what?  

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