Standing on stare decisis
Samuel Johnson famously said “patriotism is the last refuge of scoundrels,” well it’s ironic that stare decisis–if it’s all your standing on, may qualify as the last refuge of judicial activists.
Retiring TN Supreme Court Chief Justice William M. Barker has stated in a Nashville City Paper interview that he thinks Tennessee’s most recent way of picking judges is best. From the article:
. . . Barker said that the state’s way to pick Supreme Court and intermediate appellate judges — called the Tennessee Plan — is the “best of all methods” that states have found.”
That’s his policy preference and that’s just fine. (Incidentally, all the other states in the U.S. which replaced constitutionally-required elections with “merit selection” went to the effort of changing their Constitutions–something Tennessee voters rejected in 1977).
But Barker offers a legal basis for his policy preference by stating that two prior TN Supreme Court opinions have found the so-called “Tennessee Plan” to be “Constitutional” . . . Barker’s basis is a legal principle called stare decisis and–in this case, I’d say it is the jurisprudential equivalent of vapid patriotism. (I’ll save for another post whether those prior decisions even fairly qualify as “stare decisis”).
Stare decisis (pronounced “starry deSEYEsus”)literally means “to stand by things decided,” and it expresses the principle that prior court decisions must be recognized as precedent. Supposedly, stare decisis is essential for lending predictability to the law.
One thing that really serves to make the law “predictable” is to adhere to what the plain text of the law–the Constitution in this case, says. The text of our state Constitution has painstakingly been arrived at by Constitutional Convention or by the arduous process (in Tennessee) of Constitutional amendment. That’s “law” that deserves some deference, I’d say.
Indeed, Barker cites Brown v. Board of Education in supporting the idea of insulating judges from accountability for their rulings. That’s a fair argument in favor of Barker’s preferred way of picking judges. But it’s a good thing that the judges in Brown v. Board of Education didn’t hide behind stare decisis in reaching their decision, isn’t it?
There’s more on this debate at tennplandebate.org
Also posted at wisdomisvindicated.blogspot.com
To be fair, I don’t think stare decisis is intended to render prior precedent irrevocable; it just means that barring extraordinary circumstances, precedent should be respected.
And I’d say it’s most applicable when the meaning of the “plain text of the law” isn’t entirely clear — which turns out to be much of the time.
As a side note, I think TN’s method of selecting judges is crap.
Judges should be appointed and then confirmed by the legislature. However, I’d prefer if something like a two-thirds majority were required for confirmation, rather than a simple majority. That makes the likelihood of confirmation of naked partisans — from either party — much, much lower. If both parties can live with a judicial nominee, but neither party is particularly excited about that nominee, then that’s evidence of that nominee being a good one. 
Thanks for the input, but I think I was fair, tgirsch.
And yeah, that might be a good way of picking judges; however, it isn’t the way that has been set forth in our Constitution.
I understand that it’s not the way our Constitution says. But unlike many, I don’t fall over myself to worship the Constitution. Should we abide by it? Sure. But where it has faults (and it has many) they should be corrected. I’m a pragmatist at heart, so I’m far less concerned with how things are or how they have always been, and more concerned with what works. Our current method for selecting judges (both at the state and federal level) doesn’t work, and as such, we should do whatever is necessary to fix it.
Thanks for the candid and alarming (though not surprising) expression of your view of government and the law (and the way judges should be “pragmatic.”) In a culture where people are free to “worship”/value different things, a constitution makes that coexistence possible.
I don’t know Ned, you seem to take a pragmatic approach to the COTUS when it comes to the “war on terror”, it’s just a different branch of government doing the pragmatizing.
Just one example, the invasion of Iraq was a violation of Article VI.
“Seem”? Give me some examples. And you must mean some other Article.
This one example is sufficient. And no, I don’t mean “some other article”.
When the U.S. Senate ratified the UN charter, it became part of U.S. law, per Article VI.
The Iraq invasion was in violation of the UN charter. Only an idiot would dispute that, maybe the same idiot that told Congress habeas corpus was not recognized by the COTUS.
Boy, that’s a stretch, but I’ll play along.
So because we (as represented by our Federal Senators) ratified the UN Charter, we have to do everything the UN says?
Uh, no, we don’t have to do “everything the UN says”. I didn’t assert anything close to that. I really don’t care if you “play along” or not, but the fact that you can call pointing out that the President violated the plain text of the COTUS a “stretch” proves my point.
Well, you asserted (and reasserted!!!) that Dubya et al have violated the “plain text” of the Constitution, so what are you asserting about Article VI?
What is a “charter”? What does it mean to adopt a “charter”? What is the “plain text” he violated? How did the invasion “violate the UN charter”?
We idiots have questions!
The charter is a treaty. Article VI provides that as such, it becomes part of the highest law of the land.
There are only 2 circumstances under which belligerence may be undertaken under the UN charter.
1)Self Defence.
by defintion, preemptive belligerence is not self-defence.
2) UN approved action.
The UN rejected the “evidence” for action against iraq when it was presented by Colin Powell.
The Iraq invasion was therefore in violation of the charter.
Any more questions?
Yes, we idiots need some learning!
So was the invasion of Iraq in violation of our Constitution, as you said? I guess that all the Federal legislators that voted in favor of this “unconstitutional” action are guilty as well?
And was the invasion of Afghanistan–which was not approved by the UN, also “unconstitutional”?
If you’ll carefully recheck my previous comment (its right above your last comment) you will notice that are are 2 (two) conditions under which belligerence may be legally undertaken.
The Afghanistan action was considered self-defense, and quickly recognized as such by the UN.
The military does not follow the orders of Federal legislators.
Oh, so all the Democrats who voted to violate the UN Charter are off the hook?
And was it therefore made “constitutional” after the fact?
And can you direct me to a report that the UN retroactively approved the Afghanistan invasion?
And how was it “self defense” to take over a country for one guy who had shot his wad? He didn’t have any weapons programs . . . he didn’t have any WMDs . . . he didn’t have an army . . . we could have just put out an APB and threatened to arrest him if he tried to enter the U.S. . . . he was virtually harmless, easily containable.
dude, you are becoming tiresome
very tiresome
Thanks for the link.
Dude, you flatly asserted that the invasion of Iraq was “unconstitutional” because it was in violation of the UN Charter. I just read all (seemingly) four or five pertinent UN resolutions on the matter (following 9/11) and don’t see anywhere Security Council authorization for an invasion of Afghanistan. Is it “okay” (and not unconstitutional) to violate the UN charter if–in hindsight, there’s pseudo-approval?
I don’t know what to tell you,
Yes. “Constitutionality” (by which I mean the U.S. constitution)–based on whether the UN Security Council authorizes or not, is dicey.
Yeah, dicey.
Do you know why the UN exists?
It does because, after WW II, it became clear that WW II would either be the last world war, or the next to the last world war. The idea was to implement a system of international law to prevent rogue nations from seeing to it that the latter would be the case.
Of course, I don’t think they anticipated that the most dangerous rogue nation would be the most powerful one, not to mention the one that just saved the world’s ass. Ironic.
Yeah, because you seem unable to explain why it was not unconstitutional for us to invade Afghanistan without UN Security Council approval.
But I guess we can end this discussion here . . . I disagree that America is “the most dangerous rogue nation” in the world.
Did you even read the statement? I even emboldened the crucial passage.
The President of the General Assembly acknowledged that it was act of self-defense.
I think the problem is that you already have your mind up and don’t want to be bothered with the facts.
Unbefreakinglievably tiresome.
Yeah I read it, before you posted it on the site and after you posted it on the site. The problem is that the statement (not even a Security Council Resolution, mind you) was issued AFTER the invasion.
I guess it’s enough if the President of the General Assembly makes a statement to reporters after an invasion that said invasion was consistent with UN policy/charter to render an invasion “constitutional”?
It’s probably better than if the Secratary General and the majority of member states, including U.S. allies, agreed unequivably that it was illegal.
But the bottom line is, you don’t care about international law. You will agree with Bush and his shysters no matter how wrong they are.
Yeah, probably better . . . probably less “unconstitutional” . . . blahblahblahblah. Tell me about tiresome.
You’re right, though, inasmuch as you state that I care less about “international law” than I do about national sovereignty or about what our Constitution (contra the UN Charter) says.
And inasmuch as any “international law” lover would conclude that America is “the most dangerous rogue nation” in the world.
You are wrong about Afghanistan, but that’s really just a red herring.
The point is that by thumbing your nose at international law and the UN charter, you are just as guilty of thumbing your nose at the COTUS as you accuse any penumbra wielding “activist” judge of being.
Yeah, except Afghanistan disproves your “unconstitutional, dude” point (or at least demonstrates how little you really are concerned about “constitutionality” when Dems are at issue. You and yours seem to have been willing to nose-thumb regarding invading Afghanistan–was it the polling data?
But I know your point, I just disagree with it.
I indeed care less about “international law” than I do about national sovereignty or about what our Constitution (contra the UN Charter) says.
And I disagree that America is “the most dangerous rogue nation” in the world.
Yeah, you “disagree”. Like Gonzales “disagrees” that habeas corpus is ennumerated in the COTUS, and Bush’s shysters “disagree” that waterboarding is torture, or that the executive branch is legally bound by Constitutional separation of powers.
Did someone say “red herring”?
And, not to start another debate, but I think that “separation of powers” is a dual-edged sword on all these issues. e.g., What does “enemy combatant” mean? Can Congress define the term? etc.
You beat everything, you know that?
What does “enemy combatant” mean?
LOL
Let me guess, it means that the Dirty Dick(head) Cheney and his sidekick The Chimp, (excuse me, President Chimp that is), along with their henchmen at the DOJ can just…. I dunno, MAKE STUFF UP?
But anyway, we’re going to get some rulings on this executive privilege nonsense, due process is underway. All these folks have to do is come before the Representatives of The People and swear to tell the truth. That’s how it works. Accountability, checks and balances, all that.
You’ll see.
Well, at least in this case, my logic sure “beat everything.”
Yes, we’ll see. Let’s get those poll numbers out of the doldrums! Impeach Bush for treating enemy combatants like . . . enemy combatants!!
I’ll let you have the last word . . . (try to avoid any overt name-calling)
Ned,
I don’t recall calling you names on this thread.
I don’t have any qualms about calling a sonofabitch a sonofabitch, or a dickhead.
I confess that I almost feel a little regret at calling someone as meticulously polite and respectful as you an idiot on another thread.
Almost.
But you’re not a sonofabitch. You’re just really, really wrong on some important points.
But merely being wrong is not crime against humanity. If it were, we would all be fugitives.