ah the quality of a Bush nomination

[gbear]

If a judge doesn't like the law or agree with the sentence (not the verdict), he should just throw it out, right? Or atleast he could threaten to so that the prosceutors have to throw out charges for which the defendant had been convicted.

http://www.washingtonpost.com/wp-dyn/articles/A41956-2003May26.html?nav=hptop_tb

:doh: Um..paging Mr.Pickering..you're a judge not a legislator. Since so many here seem to hate activist courts (but are blind Bush followers), I'm curious about your feelings on judges rewriting law.

Also, I have to love asking people currently before his court for reccomendations. Talk about putting them on the spot.

Is this the guy you would really want?

[Atlanta Skins Fan]

Originally posted by gbear

If a judge doesn't like the law or agree with the sentence (not the verdict), he should just throw it out, right? Or atleast he could threaten to so that the prosceutors have to throw out charges for which the defendant had been convicted.

A judge is responsible first to the Constitution, second to specific laws, and only third to the decisions of prosecutors to seek particular prosecutions. It is entirely appropriate that a judge question the merits of laws and prosecutions when those laws and prosecutions conflict with the Constitution. This is the primary defense of the people against unjust laws and variable prosecutions, and it the primary role of the Judiciary in counterbalancing the Legislature and unelected prosecutors under the Constitution.

In this case, the federally mandated sentence of 7-1/2 years for a cross-burning is exceptionally harsh. Such federal civil rights cases were an innovation of the 1960s and arguably overreached the Constitutional domain of the federal government, albeit in service of an important social good. In this specific case, a 7-1/2 year sentence on a civil-rights charge for a cross-burning could violate the Eighth Amendment protection against excessive sentences.

The sentence was not just excessive on the objective merits (in essence, 7-1/2 years imprisonment for an insult), but also in the specifics of the case. There were three defendants, and two them (including the ringleader, who had prior racial incidents) plea-bargained to a misdemeanor with no jail time. The third, Daniel Swan, had no prior criminal record, no indication fo prior violent hostility to blacks, and was drunk on the night of the cross burning. However, because Swan refused to plea-bargain the charge, the prosecutors sought and achieved the maximum convictions in court.

Judge Pickering got the sentence reduced from 7-1/2 years to 27 months, which is still harsh in this case. Aside from liberals wanting to kick up dust about being "soft on racism", it's hard to see how this judge erred. In my view, he did his job to ensure that sentences are appropriate to the crime and as commensurate as possible to the treatment of fellow defendants, which is the definition of our Eighth Amendment protection from "cruel and unusual punishments".

[gbear]

ASF,

Does your arguement that "it was just an insult" stand up? They fired a gun through his window ealier.

At what point does cross buring become threatening? Doesn't your view of it as just vandalism ignore the implied threat? Doesn't it ignore the fact that they fired a gun through his window? Threatening someone with lynching or shootings isn't minor. The jury agreed, so did the legislature.

It's easy to take cross buring as minor which the act in and of itself might be. However, it was clearly meant as more. It was meant to chase a family from their home. It suceeded.

The fact that two other trials were plea bargained doesn't mean that a third defendant who refused to plea bargain should gain the benefits.

The judge just decided that, in effect taking away the say of the legislature and the jury. That's not his job.

[Atlanta Skins Fan]

Originally posted by gbear

ASF,

Does your arguement that "it was just an insult" stand up? They fired a gun through his window ealier.

Actually, "they" did not. One of the fellow co-defendants (the ringleader) did on a separate prior occasion. This ringleader with the prior gun-firing record plea-bargained and got no jail time for the cross-burning incident.

You really should familiarize yourself better with this case. Even the freaking Village Voice understands that the Democratic opposition to Judge Pickering is based on a willing distortion by the Dems and the media regarding Pickering's actions in that case. It's yet another example of what a crapfest the Democratic Party is -- so many valid ways to oppose the abominable Bush administration, and the Dems are too pu$$y to pick the real fights and are fraudulent enough to take cheap shots as in this case.

At what point does cross buring become threatening? Doesn't your view of it as just vandalism ignore the implied threat? Doesn't it ignore the fact that they fired a gun through his window? Threatening someone with lynching or shootings isn't minor. The jury agreed, so did the legislature.

Again, gbear, you're not using any legal logic, just rhetoric. This defendant did not fire a gun. The man who did (on a separate occasion) never served jail time. Despite the offensiveness of the cross-burning, I don't see where this defendant "threatened someone with lynching or shootings".

I'm a pretty strong defender of free speech, even offensive free speech. I recognize that the specific and horrific treatment of blacks in this country, first as slaves and later as abused second-class citizens, makes racial insults to blacks a particularly egregious action. So I don't oppose criminalizing cross burning.

But punishments need to fit the actual crimes, and the treatment of individual criminals in the same case needs to have some vague relationship to evenhanded justice. Objectively, the reduced 27-month sentence was still disproportionately harsh for the crime and for the treatment of the other defendants. I think Pickering did his job under the Constitution, bravely and aggressively so in such an emotional case, and the prosecutors should be slapped for allowing the ringleader to plea-bargain to no jail time while a lesser defendant faced charges with 7-1/2 years imprisonment.

[gbear]

So because one had too low an IQ and one was underage, the third (whom niether of those defenses applies to) should get the same punishment? What's hhis excuse? "I was drunk."

Oh and if he was drunk, he couldn't have meant anything against Blacks, thus it wasn't racially motivated. That's the arguement Pickering is using in disagreeing with the jury who believed it was racially motivated. Please...

Basically threatening a family to the point where they had to move...that's you're minimal crime which doesn't justify a 7 year sentence. And it is clearly a threat. When one of the members of the group has fired a gun through the window, it's hard for it to be taken as anything other than a threat.

How does the lack of punishment of the other 2 make it okay to reduce the punishment of the third? Heck, atleast they got it right once...well once before Pickering got a hold of it.

[Atlanta Skins Fan]

Originally posted by gbear

Oh and if he was drunk, he couldn't have meant anything against Blacks, thus it wasn't racially motivated.

Come on, gbear, this is getting tedious. Of course the cross-burning was racially motivated. It's not simply vandalism, but rather coded hate speech, loosely translated, "You better get out of town you stinking n------, because we hate your stinking guts, and if were 100 years ago we might be rounding up a lynching party by now."

This isn't pretty, even as coded hate speech, and it's good for society that cross-burning is criminalized. But it is still, at the end of the day, "merely" an insult, and if we rounded up people for every insult, Art would be facing 10 trillion years in prison. I happen to think that locking someone up for three months and giving that person a criminal record is fairly commensurate for first-offense hate speech of this kind. Second offenses are a different matter. Perhaps you disagree, but I still can't see how a 27-month prison sentence (when more prominent defendants are let free) is somehow construed as being so soft on racism that Pickering is unfit for higher judicial service. To me, his clear understanding of the requirements of our Constitution (and the hierarchy of the Constitution over individual laws and prosecutors) -- especially in an emotional case like this -- is *evidence* that Pickering is fit for higher judicial service.

[Kilmer17]

If they oppose him, then vote him down. But the Dems arent playing that game g. They wont even allow the vote.

[Funkyalligator]

Please note that in addition to trying to reduce the sentence for Swan. Pickering also approved the plea bargain with Branch in which he freely admitted shooting the gun into the house. He never should have approved the plea bargain after admitting that, also accordingly all the evidence pointed toward Branch as the instigator. Branch just happened to be smarter than the other two and so he took a plea bargain while the others didn't. Pickering never should have involved himself so deeply in the case, this he is looking out for his own racially motivated self interest.

[gbear]

Kilmer,

Just for the record, you do mean vote him down again, right?

I know, we may not allow a vote this time, and I'd be totally for that approach too. If Bush won't put moderately acceptable judges up for nominations, then do whatever necessary (under the rules) as my duly appointed representative to prevent the likes of Pickering.

Anyway, I posted this article because a while back I was asked what it was about some of the Bush nominations that Dems didn't like, was it just that they were put forth by Bush? My answer: no. Some of them are just plain offensive in their own right.

[Kilmer17]

The problem with that argument g is that the Dems want to decide on what is moderate on a case by case basis. They used to use the ABA as a guide, but when that didnt provide enough cover for their obstruction they went further.

I thought that Pickering was never voted on by the full Senate? Can you link the vote?

[Larry]

The counter argument to the "it's just some drunks having fun" is that aburning cross is inherently different from an egg on a windshield: One's vandalism, one's a death threat.

It should be punished differently.

(And, I'm not a big fan of "I was drunk" as an excuse. That excuse is the reason DUI used to be no big deal.)

I'm also really enjoying all the folks who're applauding Pickering's brave defense of the Constitution, here. I must have missed the part that says, if the prosecution screws up the case against two defendants, then the third cannot be punished, even after he's been convicted.

Are you folks saying that a seven-year sentance is unfair for all cross burnings? Or are you saying that if two of the defendants are (in effect) juviniles, then all must be treated as juviniles?

[@DCGoldPants]

Where do you get a cross that big anyways? Do you have to build one?

If that's the case, how drunk could they of been to get all that work done?

[gbear]

Kilmer,

my bad. I just checked. He was voted down in committee.

Thanks,

It doesn't change the rest of my arguement though.

BLB, evidently, they did build the cross. :doh: I guess it is just two big boards nailed together and doused in flamable fluids though.

[Kilmer17]

Im not defending him. Im defending the right of the administration to have their nominees voted on.

[gbear]

As I have pointed out in numerous threads: defend it to both sides. Many of Clinton's never got votes either.

Just curious, how do you feel about the Senate practice of a judge needing the approval of the two senators from his home state to get a vote?

[Larry]

It's amazing the number of people who have no problems at all with an administration (and judges they appoint) saying that there is no such thing as a right to privacy, because those exact words do not exist in the Consitiution, but who think that a President (if he's of the right party) does have a right to a full Senate vote on every proposal he makes.

[The Evil Genius]

7 1/2 years for cross burning?

Hell, I am of the opinion that they should have gotten at least 15. Enforcing a punishment like that, IMHO, would put a dent in these KKK like tactics of hatemongering.

[Kilmer17]

Bad idea IMO. It would eliminate any Justice from California under BUsh and on the flip side no Judge from a state with 2 GOP senators if a Dem ever wins the White HOuse again.

Just so we are clear, you think this is an acceptable practice? To not even allow a nominee to a vote?

[Kilmer17]

Larry, who said that?

[gbear]

Kilmer, it's not a question of me thinking it's a good idea. It's just been the practice for quite some time. Thta was actually what kept many of the Clinton nominations from a vote.

[Larry]

Just so we are clear, you think this is an acceptable practice? To not even allow a nominee to a vote?

Just to clarify my position:

The Senate has rules. These rules have evolved over 100's of years.

Many of those rules have been constructed for partisan political purposes. A lot of them have been created specifically for the purpose of allowing a Senator to lie about his voting record to the voters.

(I recall the discussion of what I believe are referred to as the cloture rules: The proceedure whereby a sufficient number of Senators can, by signing a register, force a bill out of committee and bring it to the floor. The rules of the Senate also prohibit a Senator from revealing which Senators have signed this register, resulting in cases where enough Senatore have said that they want a bill to be voted on, that it should have been voted on, but the bill hasn't come out of committee. Recently, some Senators got around the rule by revealing the names of Senators who haven't signed the register. (The rule only prohibited revealing the names which were in the register). The offending Senators were punished for revealing which Senators were saying they wanted a vote on this bill, but who hadn't actually voted that way.)

I don't necessarily object to a rule like this: It allows a Senator to avoid voting on a bill that's really popular, but which he believes is a bad bill. (And, in general, I'm in favor of anything that makes it harder for the Government to work).

What I find amusing is the number of politicians who have no problem using every loophole in the book when it serves their interests, denouncing the downright treasonous attempt to subvert our constitutional form of government when the other side does the same.

[JimboDaMan]

Originally posted by Kilmer17

Just so we are clear, you think this is an acceptable practice? To not even allow a nominee to a vote?

But he got a vote. In the committee, and he lost. Of course its an acceptable practice. That's how the system works.

[Kilmer17]

Okay, then using that same system he made it out of committee the second time and is entitled to a vote by the whole Senate.

[JimboDaMan]

Originally posted by Kilmer17

Okay, then using that same system he made it out of committee the second time and is entitled to a vote by the whole Senate.

Kilmer, there are no "entitlements" here. Like it or not, this is a rough-and-tumble process. In general, I don't like it, because usually a nominees qualifications are secondary to his politics - and that goes both the nominating party and the opposition. The individuals are essentially pawns who aren't "entitled" to anything.

[Kilmer17]

Youre arguing semantics. Use a different word if it makes it easier. If his nomination is approved by the committee, then the next step is a vote by the Senate. IF the Dems obstruct that vote then they are wrong. If they disagree with his politics or beliefs or his judicial style, they have the right to vote against him.