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April 11, 2007



Very cozy.
The prosecutor commends the defense attorney.
The defense attorney lauds the judge(who, asleep at the wheel, allowed the prosecution to proceed and jailed the defendent while she appealed).
And the client, sprung immediately upon review by non-Wisconsin jurists, groggily packs her jailhouse memories and heads home.
No doubt the defense attorney has nothing but nice words for the federal prosecutor, too.


Gee that's pretty classy of the US Attorney! He railroaded someone into jail, most likely destoryed their personal savings and put them through intense psychological scarring.

But he has the class to send out a press release commending the defense attorney.

Thank God that Karl Rove and George Bush are running this country!


I think we should look at it a different way. A US Attorney was told to undertake a politically-oriented prosecution. He wasn’t a hero. He was the kind of guy who did what he was told. So, he did it. He might have figured that the judge would dismiss it. But that didn’t happen. The judge’s clerk probably thought he could be creative, and like many clerks, he could figure out a way to put more of the country in jail. So, there was a conviction. (Juries and grand juries will buy much of anything.)

The 7th didn’t dispose of the case on the briefs. Nor did they grant her bail pending appeal. In fact, they scheduled oral argument. So, they thought it was at least a bit close. Then, finally, they ordered her release.

Other US Attorneys would (and have) blamed the courts. They would have called it “judicial activism” and explained why we need less “activist” judges.

Not this one. He took it like a man! So, while the whole thing smells like yesterday’s fish, the US Attorney’s class shows that some people are willing to put an end to this.


Are you saying that "judicial activism" is a good thing? And, for the record, what is your definition of "judicial activism?" To stray from the facts of the above case for just a moment: would it be improper "judicial activism" for the Supreme Court to rule that a "fetus" is actually a "person" entitled to life and due process under the 5th and 14th Amendments? Who defines what a "person" is and when a fetus becomes a "person?" I'm not trying to debate abortion, just make a point that a judge that seems "activist" to one group might be just fine with another group. I think what you call "judicial activists" are more aptly labeled Philosopher Kings. Lifetime appointment (Kings) and nothing to restrict them from fashioning their personal beliefs about what the best policy should be (philosophers) into 100 page opinions citing countless opinions while weaving the necessary style of argument and logic that fits their original policy choice. Holmes used to call this writing the opinion in reverse: begin with the basic policy decision that a justice knows must be right, and then let the law clerks work in reverse to justify the policy decision. Personally, I'd rather have judges than Philosopher Kings. Just a thought.


AZ, I don’t know what “judicial activism” is (at least in the conventional sense), so when I use the term, I use it sarcastically. I.e. I am using it to mock people that are so sure that they know what it means.

I do have two working definitions of the term, however.

1) Any decision that invalidates or effectively prevents the enforcement of any statute. This is Sunstein’s definition, and it is, I think, an honest way to collect date; and
2) A decision that frustrates the agreed-upon intentions of the parties to the litigation.

But, most people don’t think of those, so they are not that important. They are probably the most practical for lawyers that actually need to practice, but they are of little use to the chattering classes. After all, non-lawyers must rely on newspaper articles written by other non-lawyers (which, in turn rely on press releases from the losers in litigation) to tell them what the courts did. This blog is an effort to turn back the tide, but it doesn’t do much good, and I turn down requests for interviews from the media, because I they are just looking for snappy one-liners.

As a side note, I doubt that even if the Supreme Court could redefine what a “fetus” is, I think it would only protect it from state action. Without specific state laws (or commerce-clause-friendly federal laws), a woman that wasn’t conceiving as part of her government job would be free to have as many abortions as she liked.

Everyone is influenced by their personal beliefs. But, personal beliefs are much more pervasive than people care to admit. So, without exception, any “judge” within your definition of the word, would always apply his personal beliefs when dealing with any ambiguous question. Somehow, however, people never seem to object to a long opinion that weaves lots of cases together into the kind of argument you describe, when it fits their needs. Instead, those judges are called “brilliant.”

It is my firm belief, unfortunately, that since the public takes no interest in the workings of the courts, that they are unfit to actually police them. Unless and until an electorate reads the decisions (and makes an effort to understand everyone one of them) life tenure is the only way to protect the judiciary from influence of people that are controlled by sound bites.

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