Sheridan: Con-Law

VAYA CON DIOS

California's population is becoming less and less white, "below the replacement level" according to one demographics expert. 

Ay, por Dios!

What are we going to do?

I already order the Burrito Super de carne asada, con frijoles negros, por lunch at Pancho Villa's on 16th a couple of doors down from Valencia when I'm in the area.  And sometimes a cold Dos Equis with a slice of lime stuck into the long-neck to wash it down.

A friend in Arizona is unhappy with all the Mexicans in his pueblo, as though he has a prior right, considering how long Spanish has been spoken around Phoenix.  Well, he does, actually, legally, but he claims the moral high ground because although his Norwegian sailor father jumped ship in a U.S. port in the 1920s, and was sent home, the man reapplied properly, was admitted legally to the U.S., settled down, became a U.S. citizen, and raised a family.  All have thus lived happily ever after, right?

Well, not quite right.  There are all these Mexicans, you see, who have hopped the border and burrowed into "our" economy.  My friend is a retired used-bond salesman who didn't exactly make his way cleaning up people's yards.  Border jumping to him is wrong, so these people have little, if any, claim to his sympathies.  Let them go back and apply properly, seems to be his attitude.

Like many Arizonans, he supports the new anti-Immigrant law, which I don't.

"You see, Thor," I think as I walk, "even though they've violated our border laws, we must still respect their humanity."  We can't treat mothers and fathers and kids like throw-away tissues, good for one use only, then discard.

Those Mexicans, all fifteen million of them (the number varies according to whose speaking but the numbers I keep seeing are eleven or twelve million so I figure that if it isn't fifteen today, it will be tomorrow) are indistinguishable from me.  If my parents couldn't feed me as a child where they were, I would expect them to lie, cheat, and steal, to cross into someplace where they could.  My child would expect that from me.

Yes, this is terrible, it's illegal, but it's also good and damn near perfect.

You see, I went to the State Department web-site the other day and downloaded their Visa Bulletin. 

Anyone interested in immigration matters needs to check this out because it tells you not only who may enter the U.S. under what regulations, but how many may enter.  When I checked last week, the Mexico quota was oversubscribed back to 1992, eighteen years.  This doesn't necessarily mean that if you file for your brother or sister today you only have to wait another eighteen years before you reach the head of the line.  It only means that if you filed eighteen years ago, you are approaching the head of the line.  For the Philippines the U.S. is processing applications filed seventeen years ago.  Then there is India and China.

I grant that we, meaning the U.S., cannot afford to accept freely anyone who wants to enter, work, and live here because the financial opportunities are greater in their homeland.  Our ability to accept newcomers depends on our ability to provide jobs, which brings us back to the Mexicans, by which I mean to include the OTMs, the Other Than Mexicans who cross our southern border without benefit of clergy, meaning without going through the inspection gates available for the legal visitors or immigrants and returning U.S. Citizens.

We've already lost, or should I say, won, that game.  Any time you have fifteen million people entering, settling down, and working, you have won.  But many Americans, likely most, can be expected to say we have lost because these people don't speak our language, don't obey our laws, use our facilities, commit crimes, etc.  Yes, this is true.  What a pity that these people pay taxes, have wages with-held, and don't collect because they fear deportation.  My guess is that the pluses and minuses even out, although the people in Arizona would beg to differ, pointing out some of the more egregious crimes committed by "aliens," as immigrants are called in U.S. law.  I know that.

I tend to see the way we treat our Mexicans, a funny way of expressing it, as "our" Mexicans as though we owned them through a lens that also enables us to see how Hitler treated "his" Jews.  Not very well.  The Nuremburg laws of Nazi Germany targeted Jews, mainly, but also Gypsies, Communists, the mentally ill, etc.  Get them out of our sight, was the philosophy.  Of course they had no place to go, accounting for the extermination of six million mothers, fathers, children, whatever, people we call them.  Not Jews, Gypsies, or Communists, or whatever, because as soon as you apply these labels, they conjure up people not like us, people who are somehow less worthy, unclean, not quite people, the morally impure (compared to us who are always much purer, of course) like those Communists, those Gypsies, and most of all, those Jews.  Oh, and don't forget the lame and mentally disabled, for who needs them?

The road may be long, but going down it leads to extermination camps, if history is any guide.

So we have to be really careful about what we say and do regarding legal measures affecting immigrants in our midst, to avoid going down this bad road, the one that Arizona has made an unfortunate mis-step on recently with it's new AZ-1070 law.  It makes being in Arizona without proper papers a crime and permits local police to round up the usual suspects, who shouldn't be too easy to spot, it not being very difficult to tell a descendant of Norway from a descendant of Spaniards, Aztecs, and los Indios.

My guess is that we had better take steps to reconcile our abstract beliefs in the alleged sanctity of the law, the immigration law no less, with the practicality, the reality, that we have at least fifteen million neighbors who are here to stay and not leaving any time soon.

Because they're not all going to head south and wait eighteen years or more while we process their papers.  This isn't the way life works and the sooner we realize it the better off we are.

In the meantime, we accept the benefits along with the burdens.  That's also part of life.

"Our" Mexicans became ours the moment they succeeded in crossing the border and settling in.  Our benefit, our problem.  In either case, they're here to stay and we need to realize it.

Welcome, amigos!

CHINESE JUSTICE

The best laid plans of mice and cops "gang aft agley"..bringing down the judge who relies too heavily on them:

Judge suspended in China coerced confession case

By CHRISTOPHER BODEEN (AP) – May 19, 2010

BEIJING — A Chinese provincial high court chief justice has been suspended over a case in which a man spent 11 years in jail after being tortured into confessing to a murder he did not commit, a court official said Wednesday.

Henan province Chief Justice Hu Ye is among four judges and three police officers under investigation in the case of Zhao Zuohai, who was released from prison this month after the man he was accused of killing reappeared alive.

Hu had reviewed Zhao's conviction and approved his suspended death sentence, according to a clerk at the Henan High Court's office of supervision, who identified herself only as Ms. Wang.

She declined to say what specific infraction Hu is being investigated over.

The Zhao case highlighted the frequent use of torture by Chinese police, as well as stuttering attempts to reform a Chinese legal system that is widely seen as corrupt and heavily subject to political influence.

Zhao, now 57, was arrested in 1999 after a neighbor disappeared following an argument between the two. A headless body believed to be the other man was later found.

Zhao says he confessed only after police beat him and deprived him of sleep over several days of interrogation.

After he went to prison, Zhao's wife remarried and two of his children were adopted by her new husband. The other two children left home to work as migrant laborers. Since his release, Zhao has been awarded $96,000 in government compensation from judicial officials.

Chinese police are under intense pressure to close cases quickly and coercing confessions is seen as a convenient alternative to investigative work for which officers lack the training and equipment.

Two of the officers in the Zhao case have been accused of carrying out the torture and have been detained. State media has reported that their families said they were ordered to carry out the abuse by their superior officer at the time. A third officer under investigation remains free.

Confessions are given enormous weight in court, virtually guaranteeing conviction, and it wasn't clear in what way the judges involved in the case could be found liable.

The other three judges under investigation had presided at Zhao's trial in the Henan city of Shangqiu and passed the suspended death sentence on him.

In recent years, China has taken gradual steps to address torture, partly by releasing guidelines that identify specific acts of abuse for which police can be prosecuted. Beijing last year also pledged to clamp down on violence against inmates, with the Public Security Ministry saying nearly 1,800 policemen were suspended over such incidents.

Copyright © 2010 The Associated Press. All rights reserved.

But, Mousie, thou art no thy lane,
In proving foresight may be vain;
The best-laid schemes o' mice an 'men
Gang aft agley,
An'lea'e us nought but grief an' pain,
For promis'd joy!

Robert Burns from to a Mousie...

JUSTICE SOUTER...

...makes a lotta sense:

June 3, 2010, 9:47 pm

Justice Souter’s Class

By LINDA GREENHOUSE

Linda Greenhouse on the Supreme Court and the law.

Tags:

Antonin Scalia, Constitution, David Souter, Supreme Court

Justice David H. Souter left the Supreme Court nearly a year ago without really saying goodbye. There were no pre-retirement interviews of the sort that Justice John Paul Stevens gave to several journalists this spring. There were no farewell press conferences like those that several justices who retired during the 1980’s and 1990’s were willing to endure for the sake of placing their own codas on their Supreme Court careers.

And since Justice Souter has decided to keep his papers closed to the public for 50 years, few people in a position actually to remember his Supreme Court tenure (1990-2009) will be able to explore the archive and learn what conclusions this most private of public figures drew from his part in two decades of profound debate about the role of the court and the meaning of the Constitution.

Adam Hunger/Reuters David Souter at Harvard’s commencement on May 27.

So it was with a mixture of relief and something close to joy that I listened last week to David Souter’s commencement address at Harvard, his undergraduate and law school alma mater, which awarded him an honorary degree. (I was in the audience as a member of Harvard’s Board of Overseers; like the thousands of others seated at the outdoor gathering, I had no idea what to expect.)

As a matter of immediate impact, this was not a speech to rival Secretary of State George C. Marshall’s announcement, in his Harvard commencement address in 1947, of his plan for the reconstruction of postwar Europe. Nor is it likely to attain the resonance of Winston Churchill’s declaration the previous year, upon receiving an honorary degree at Westminster College in Fulton, Mo., that the cold war had begun and that “an iron curtain has descended” across Europe.

But for those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.

His stance was modest — “Over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States,” he began — but the prose was muscular, in contrast to the writing style in many of his opinions. The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another. The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” he suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

Justice Souter named no contemporary names. He did not mention Justice Antonin Scalia, whose “originalist” doctrine of constitutional interpretation made inroads in recent years, most notably in the 2008 decision, from which Justice Souter dissented, declaring an individual right to gun ownership under the Second Amendment. But I have to think he had Justice Scalia in mind when he observed that “behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair-reading model seems to promise.”

Justice Scalia has acknowledged as much himself, in a famous law review article he published in 1989, three years after he joined the court. Titled “The Rule of Law as a Law of Rules,” the article in The University of Chicago Law Review asserted that judges need clear rules, rather than malleable balancing tests of the sort favored in modern constitutional law, in order to avoid straying into the realm of personal preference. By announcing a clear rule of decision, Justice Scalia wrote, “I not only constrain lower courts; I constrain myself as well.” He added, “Only by announcing rules do we hedge ourselves in.”

Justice Souter said he well understood, and indeed had shared, that “longing for a world without ambiguity, and for the stability of something unchanging in human institutions.” But he said he had come to accept and even embrace the “indeterminate world” in which a judge’s duty was to respect the words of the Constitution’s framers “by facing facts, and by seeking to understand their meaning for the living.”

Neither did he refer to his own successor, Justice Sonia Sotomayor, who during her Senate confirmation hearing last summer professed her “rigorous commitment to interpreting the Constitution according to its terms,” and to deciding cases “with the law always commanding the result in every case.” But he did note that with another confirmation season approaching, “we will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”

He framed the speech as a rebuttal to those criticisms and he discussed in some detail two historic cases, both from decades before his own tenure. One was the Pentagon Papers case from 1971, which required the court to weigh “a conflict of approved values”: the government’s claim that national security required publication to be suppressed versus the claims of The New York Times and The Washington Post that the First Amendment gave them the right to publish the government’s secret history of the war in Vietnam. The First Amendment prevailed.

The other decision was Brown v. Board of Education, the 1954 school desegregation case, which Justice Souter invoked for a different point. Contrasting Brown with Plessy v. Ferguson, the 1896 decision that interpreted the 14th Amendment’s guarantee of equal protection as permitting “separate but equal” public facilities for blacks and whites, Justice Souter said the difference between the two was not one of competing constitutional values but of “the subtlety of constitutional facts.”

The justices in both cases intended to uphold the guarantee of equal protection, he said, but diverged in how they understood the meaning of legally mandated separation. To the post-Civil War generation that upheld segregated railroad cars, “the formal equality of an identical railroad car meant progress” in light of how recently slavery had been abolished, he noted, while by 1954, a court that was still composed entirely of white men understood that enforced segregation “carried only one possible meaning,” a constitutionally unacceptable judgment that blacks were inferior to whites.

In other words, Justice Souter continued, the meaning to the justices of the fact of segregation had changed. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own,” he said, providing a pretty good working definition of empathy. “Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page.”

“Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before?” he asked. “So much for the assumption that facts just lie there waiting for an objective judge to view them.”

Justice Souter could, of course, have gone on to say more — to leave the safe zone of Brown v. Board of Education and, for example, to offer some thoughts on how a changed judicial appreciation of facts led the court seven years ago, in Lawrence v. Texas, to repudiate a recent precedent and to begin to build a constitutional framework for gay rights. There are obviously many current controversies, from abortion to criminal sentencing to the war on terrorism, that fit Justice Souter’s construct and on which a more adventurous retired justice might have been tempted to comment.

I wrote earlier in this column that I responded to Justice Souter’s speech with feelings of relief and joy. The relief came from seeing that this thoughtful man, a young 70, has not retreated fully into the privacy he cherishes, but was willing after all to share his wisdom. The joy came from supposing that he might keep on doing it.

• Copyright 2010 The New York Times Company

One of the best Conlaw writers around, DAHLIA LITHWICK, of Slate, weighs in on Justice Souter's little talk

jurisprudence

It's Complicated

David Souter finally tells Americans to grow up.

By Dahlia Lithwick
Posted Wednesday, June 9, 2010, at 5:44 PM ET

---

Almost two weeks ago, former Supreme Court Justice David Souter gave the commencement speech at Harvard, a speech that's been variously described by some of my favorite legal writers as a denunciation of "originalism," a defense of "living constitutionalism," and a suggestion that "judicial activism" is a game both liberals and conservatives can play. But the striking aspect of Souter's remarkable speech is that it rejected virtually all of these easy ideological labels and addressed itself to two much simpler questions: Is the meaning of the Constitution clear? And is the task of divining that meaning easy? These incisive questions themselves beg an even more pressing constitutional question: Why must justices first leave the bench before they can speak seriously about the importance of the court?

It's been tempting for court watchers to suggest that the single purpose of Souter's speech was to take out Antonin Scalia's alluring theory of originalism, but even that diminishes the force of what Souter was attempting to explore. He wasn't just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach). And he wasn't just using the speech to argue for evolving moral standards in judging, although he did that, too. It seems to me that Souter's decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.

Souter took pains to reject the idea that the plain meaning of the Constitution is always clear, lurking there "in the Constitution, waiting for a judge to read it fairly." We can all agree that much of the Constitution is not at all clear. (What does "cruel and unusual" mean?) But Souter went on to show that certain provisions of the document are in tension with others. "The Constitution is no simple contract," he explained, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once."

Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts' famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won't help you in any but the handful of very easy cases, which, as Souter correctly observed, "do not usually come to court, or at least the Supreme Court." That is precisely why, he added, "the fair-reading model has only a tenuous connection to reality." It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.

Souter went on to describe two cases in which the result was not at all clear or obvious—the Pentagon Papers case from 1971 and Brown v. Board of Education in 1954. In the first case, he noted, two constitutional values were in direct tension, and there was no obviously right answer. In the second, constitutional values had evolved to the point that "separate but equal" was no longer defensible, even if the plain language of the 14^th Amendment guarantee of "equal protection" had not changed. Neither of these two propositions seems surprising to most of us. Nobody truly believes the idea of mechanical, easy judging to be anything more than normative propaganda.

Souter's speech thus represents much more than an ode to a changing Constitution or a forceful admission that something that sounds suspiciously like "empathy" means that "judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own." Souter's words even transcend his own high-minded call to "keep the constitutional promises the nation has made." What Souter asked Americans to do in his Harvard speech is to live with ambiguity. To, in his words, acknowledge that there is a "basic human hunger for the certainty and control that the fair-reading model seems to promise," while recognizing, in Justice Oliver Wendell Holmes' formulation, that "certainty generally is illusion and repose is not our destiny." He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.

Souter's admonition that we should stop looking for infallible mommies and daddies on the bench differs only slightly from Sandra Day O'Connor's post-retirement crusade against judicial elections. Like Souter, O'Connor has used her time since departing the bench to urge upon the American people, as she argued recently, that judging is complex and that "the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution." O'Connor well understands that the American public seeks greater control over the judicial branch. But like Souter, she is trying to explain that there are costs to presenting the art of deciding cases as something that can be painted by the numbers. You have to wonder why it's only after they leave the court that justices are permitted to say that judging isn't simple. Is it some form of humility that requires sitting judges to downplay their intelligence or skills?

Contrast Souter's honesty to the nonsense you hear at judicial confirmation hearings, up to and including the chief justice's claim at his hearing that "umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand." Easy, right? I mean, my 5-year-old can do that.

So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?

It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.

It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.

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Dahlia Lithwick is a Slate senior editor. Follow her on Twitter.

Article URL: http://www.slate.com/id/2256458/

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