Tuesday, August 02, 2005

18. Is the problem of judicial and legal corruption, the same as the problem of "political activist judges", or is that a different issue?

These problems are related, but very different. The problem of judicial and legal corruption, is a much wider and deeper problem, of which the problem of "political activist judges" is only one aspect.

It is important to understand the difference, as the political discussion about the smaller problem of "political activist judges" is often used to confuse and distract the debate about needed judicial reform.

In America people worry when they pick a judge for the U.S. Supreme Court, and they are all scared about what will happen. Even the people who pick him worry about him, given he might be in the job for another 35 years, and might later change his views in some screwy direction.

The power of the judges in America, however, really shows the weakness of American democracy. Why is a Supreme Court judge a kind of "king for life", with unlimited powers to make political policy, and no one can over-rule these judges or remove them?

The power of judges in America, is quite ridiculous from the point of view of democracies in Europe, where people decide policies in a parliament they have recently elected. In Europe, there is no particular worry about choosing judges. In Europe judges might secretly be communists or capitalists or anything in between, but people don't worry that they will destroy the country if they pick a judge with the wrong political position.

In Europe, the judges tend to stay out of politics - they leave the political questions to the elective government, as their job is to just apply the law and seek justice. In Europe, countries have multiple political parties across the spectrum, who will speak out if the judges get political. There is no political fear of unelected judges-for-life who are making policy for the people.

When Americans complain about "political judges", it's funny to observe, that the voters who still think they are Democrats or Republicans, each look at the judges as biased the other way. The Democrats see America's judges as "too right wing, too conservative"; the Republicans see America's judges as "too Democrat, too liberal", even though most American federal judges now are Republicans. But both sides are actually right, and also wrong at the same time. The judges are just plain arrogant, and are constantly twisting the laws in a way to increase their own unlimited power as judges. Just pick your preferred filter to look at the biased decisions one way or the other.

There are a few cases where American politicians do tap a little bit, into the public feeling of anger about judges. However, this is almost never about the really big issues of outright fraud, corruption, bribery and extortion by the judicial branch. The complaints that you do sometimes see by politicians, are about the more narrow problem of judges who are openly bending their decisions on one of the emotional issues usually associated with one political party versus the other.

The problem of political judges, versus judicial corruption, has the same basis - arrogant judges out of control, ignoring the law and doing what they want - but the politicians stick to a very narrow script about a few controversial decisions, and they ignore the more general problem of bribery and court fraud, innocent people getting railroaded, and families getting destroyed.

There has long been a great problem in America, even going back more than a century, of judges who end up twisting the law and re-interpreting the law in some way to meet a preconceived political objective. In such cases the judge often goes to the extent of ignoring the Constitution or the laws as clearly written, and just making up his own rules or laws, using the terrifying power that American judges possess over the people appearing in their courtrooms.

If other judges do not move quickly to overturn or overrule such bad rulings, a lot of damage can be done. And judges are nearly always inclined to cover up for each other, especially if the victim is not wealthy or powerful.

But this is only one aspect of the far bigger problem, that "the law" in America has become almost infinitely devious in the hands of judges and lawyers. Nowadays, lawyers do not see the law or the Constitution as what is clearly written and understood by most people; the law is whatever the judges say it is.

And if the judges get together to say the Constitution means something else, then the original Constitution is effectively dead, if the judges won't honor it, and if the lawyers won't even fight for it, because they are too afraid of contradicting the judges.

The process of bending and twisting the law for political purposes has been accelerating over the last century. It has been accelerating extremely rapidly since the 1960s and 1970s, with the rapid expansion of lawsuits, prisons, and the power of lawyers and judges in America. Nowadays, lawyers just laugh at the "stupid Americans" who still read the old Constitution, or some written law, and expect to be protected by those laws or provisions. To an American lawyer, now, what is legal or not, just depends on what judges say is legal. What is written in the law, are just some words that the judge will use as a starting point as he plays the "legal game" in his courtroom.

Very clearly, over the last several decades, judges have made all sorts of politically-oriented rulings on controversial issues that tend to be very emotional for the American people - putting children on busses to integrate schools, or abortion for example. It is very strange to watch for other countries, because in other countries, such controversial issues are usually decided by a political debate in their parliament. In America, however, such issues, over and over again, are decided in the courts, by judges elected by nobody.

Some of these cases are in that very narrow realm of issues that politicians use as emotional footballs - abortion, gay marriage, school prayer, displaying passages from the Bible, things like that. Yes politicians do talk about judges, and accuse them of twisting the law one way or the other, about such issues.

This does help to distract many people into believing that one or the other political parties cares about "dishonest" judges, because they talk about a few judicial decisions on these high-heat emotional issues.

But what politicians, of any party, still avoid discussing, is the general problem of the wide corruption in American courts, the total violation and denial of rights to the average person, the railroading of innocent people, the destruction of families, and courts that favor the rich people and big corporations over the little person.

About such real issues, all of a sudden the politicians become very reverent, like they are talking about a god in heaven, and they mumble about "respect for the courts" and "not interfering with the great American legal system".

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