That opening on the court

[pecunium]

I've not been paying a whole lot of attention to it.

What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.

Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.

Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.

There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.

In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.

I don't think this has been for the best. The court doesn't reflect the makeup of the nation.

Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.

This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.

These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).

It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.

We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.

Comments

[urox.livejournal.com]

Choosing based on race doesn't seem appropriate if there aren't 20% of that race to choose from in the pool. I would only think a race based choice made sense if I thought that there was inherent racial discrimination in the supreme court. People should be chosen on their qualifications and impartiality rather than their race. I don't have a problem that there isn't an Asian on the Court and we make up 5% of the population. Asians have less than 1% of the federal appointments. Hispanics hold 3.7%. Understanding the "community" has nothing to do with the law at the supreme level.

However, I do feel that there needs to be more female representation in the court (I will out myself and say that yes, I am female) specifically because men are deciding what can and cannot be done with a woman's body (related to abortion) without ever going to intimately feel the repercussions of their own decisions.

[pecunium.livejournal.com]

But some of that is "glass ceiling" stuff. The sort of thing which leads employers to say they don't think they can afford to hire promote members of "x" because there aren't any exemplars.

[bifemmefatale.livejournal.com]

But what about the fact that white justices are deciding cases on race or with racial implications (like immigration matters) without ever feeling intimately the repercussions of their decisions? And the percentage of Hispanics in the US population is a good bit more than 3.7%.

[urox.livejournal.com]

Europeans are white and immigrants. My husband is a permanent resident. I've never liked any cases dealing with race because I think that crimes are crimes no matter what the race or motivation. If x-non-white race person kills a white person, I have never heard that being classified as a hate crime.

I intended to say that Hispanics hold 3.7% of the federal appointments, not the population.

[bifemmefatale.livejournal.com]

I intended to say that Hispanics hold 3.7% of the federal appointments, not the population.

Yes, I understood that. I was merely trying to point out that as Hispanics are a growing segment of the US population, perhaps they deserve representation on the court.

[pecunium.livejournal.com]

If x-non-white race person kills a white person, I have never heard that being classified as a hate crime.

I wish I had the citation to hand, but there have been such cases (and there have been white on white bias crimes).

The issue wih bias crimes is that they are about more than just arson, or graffiti, or murder. They are about terror. There was a case in Pennsylvania where the killers (I can't say murderers, they were just acquitted, on all counts) said,

"Isn't it a little late for you guys to be out?" the boys said, according to court documents. "Get your Mexican boyfriend out of here."

Racial slurs followed, and Ramirez responded. Punches were thrown, and Ramirez fell to the ground. Then Ramirez used his cell phone to call Arielle and Victor Garcia for help...

By this time, Eileen Burke, a retired Philadelphia police officer, had stepped out of her home after hearing Arielle Garcia's pleas to stop the beating.

Burke recalled hearing one final, ominous threat as the teens ran. "They yelled, 'You effin bitch, tell your effin Mexican friends get the eff out of Shenandoah or you're gonna be laying effin next to him,' " she said.

That's the core of bias crimes. They are meant to intimidate, to terrorise. The perpetrators weren't charged with intentional murder; which cuts to the core of the, "crimes are crimes" argument. They were charged with third degree (which is, I believe the least grade of murder). They were also charge with an enhancment, such as we add for things like "lying in wait", or murder for hire... why? Dead is dead, right? I don't think there is a US jurisdiction which doesn't add a charge if the offender knowingly attacked a cop

We make the eenhancemnent when someoene kills a cop, because it's an attack on the social order. So are bias crimes. When someone tells the world, they killed someone because 1: he was "x" and 2: he was here, and 3: all the rest of "x" better get out of "here", or they will be killed too; society needs to say, No... you don't get to do that.

We make distinctions about intent all the time. Degrees of murder, theft by fraud (fraud is a pure intent crime. If I don't intend to fool you, then I can't be guilty of fraud. If I tell you there is a 90 percent chance of losing your money, but a 20 percent return if we get it right, that's legit. If all I do is tell you, "this is a sure thing, and a 20 percent return is in the bag" that's another altogether).

The crime isn't hating people. It attacking them for it. It's terrorising them for it.

[urox.livejournal.com]

I'm definitely in support of discriminating degrees of murder. But I don't think that murder based on association with a group should up the charges. Planning to murder someone just because you want them dead is still planning. Whether someone plans to murder because they're a different race or because they were humiliated by their target shouldn't matter. Both are motivated by hate. The latter isn't covered by hate crime. So why should there be a special designation for the vector of the definition of hate crimes being the motive?

I do think they should have been charged with intentional murder as the text you sited clearly shows intent. Not the part about being Mexican, but the laying next to him.

I am not sure I'm being very clear in my text, but what I am intending to say is that racial bias can be a motive. But I don't see why it should change the severity of the charge. If there's an annoying kid at school and at the end of the year a couple of kids plan to beat him up, then they should have the same premeditated charge as if they were planning to beat him up if he wasn't annoying and of a different race. I just hate that when something like the former happens, then if there's a different race, it seems that everyone wants to automatically jump to a special distinction of a hate crime. I think the message should have been that you don't beat up kids. Does the fact that he's annoying make it less the perpetrator's fault? That's like telling a woman she was partially at fault for being raped because she was wearing a sexy dress.

[pecunium.livejournal.com]

Because the effects are different.

There are two crimes (offenses against society) going on. One is the simple one.

The other is the harder one.

Terrorism is a crime, yes?

It's a crime about intent. Says so right in the law. Bias crime is an intent crime. First degree murder is an intent crime (or, if you will, a "state of mind" crime). Most crimes require intent (the mens rea).

Bias changes the nature of the crime, because it changes the scope of the damage. Would you be comfortable living in a place where being "x" meant you could be singled out for abuse, and it would be ignored (oh, no big deal, just another wop, if they don't like it they ought to move)?

For a more detailed explanation (and probably more clearly than I can explain it), try Orcinus

Truth be told, I used to agree with you. I no longer do. It's not the same.

[urox.livejournal.com]

That is an excellent link and I thank you for it. I think there are some things that I am still in disagreement with, but it gives me a lot more to think about and consider.

I hope I'm not beating a dead horse

[pecunium.livejournal.com]

I did some poking about, and thought you might be interested to know that the FBI reports the second largest class of bias crimes is crimes against white people, and the second largest category in crimes of religious nature is crimes against Christians.

The law is equal in it's language. It doesn't protect me because of who I am (straight, white, and male) but it defends me against being victimised for what someone else chooses to do.

If someone attackes me because they think me gay, or of mixed-race (oneof my step-fathers was black), that's motive, and that's what triggers bias crime enhancements.

[pecunium.livejournal.com]

Exactly. I don't think the court, per se, needs to match the makeup of the population. Trying to make it so will lead to frustrations (and different sorts of whining by various groups. I'd like to see no one worrying about who gets on the bench; I'd also like someone to buy me studio space, a big house and a pony).

What I do think the justices of the court need more experience with the law at a nuts and bolts level. The classroom, where they learn it, the lectern; where they teach it, and the appellate bench; where they implement it, are all places where theory rules the day.

Practice; be it small or large, litigation or criminal, private or public, is a world apart.

Theory is a lovely place, everything works in theory. But theory is a strange thing, let it out into to the wild (as with the idea that corporations are people Santa Clara County v. Southern Pacific
Railroad Company [118 U.S. 394 (1886)]) and all sorts of strange things happen.

I don't think they will stop, just because the justices have a broader experience of the law, but I think they will be different.

I am sure that having all the justices, with the same experience of the law, will lead to more of the same.