Man Without Qualities

Thursday, November 13, 2003

An Abrogation Or Demeaning Of Democracy?

When Bill Clinton was impeached, some people argued that although he had done some things wrong, even criminally wrong, those things did not amount to an "impeachable offense."

When Gray Davis was recalled, some people argued that although he had done some things wrong, those things did not amount to an "impeachable offense" - and that removing an elected official from office was an abrogation of democracy if the official had not committed an "impeachable offense."

So, why don't we hear from such people that the removal of Alabama Chief Justice Roy Moore from office for his refusing to obey a federal court order to move his Ten Commandments monument from the rotunda of the state courthouse is an "abrogation" or "demeaning" of democracy.

Sure, what the Judge did was wrong - even a violation of the law. That was also true of some of the things Bill Clinton did - even some of the things he admits he did. But none of those things Mr. Clinton did amounted to an "impeachable offense" in the minds - or at least under the pens - of those former defenders of democracy. Surely refusing to move a silly monument is not "impeachable offense" if lying under oath, for example, is not. And Judge Moore has been removed by the votes of nine people - not the votes of the many millions it took to oust Governor Davis, votes that such defenders of democracy told us only weeks ago were still inadequate.

Why does it fall to people such as Greg Sealy, head of the Sitting at His Feet Fellowship in Montgomery, an inner-city mission to cry that it was the "darkest day" he has seen in America since he moved to the United States from Barbados 23 years ago? Only folks like Mr. Sealy seem to be pleading "They stole my vote. The judiciary stole my vote. I voted for Roy Moore."

Where are those clarion calls from the defenders of democracy who stood so bravely behind Gray Davis and Bill Clinton? Stood on principle! Where is the outrage of the New York Times? and the Los Angeles Times? And so many others!

Just asking.

UPDATE: Glenn Reynolds defends the removal, which is fine and does not exhibit an inconsistency in his positions. But Glenn's word of justification for the removal leaves a lot to be desired: If judges don't obey court orders, who will?

Professor Reynolds seems to have the constitutional priorities exactly backwards. The point of a judicial order is to make something, the ordered thing, happen. But it is members of the executive branch who are supposed to execute - that is, to make things happen. The refusal of a member of the executive branch to comply with a court order therefore seems to strike more at the heart of the constitutional government by laws than the willfullness of a judge.

For example, is it more significant that a state judge defied a federal judge's order to move a block of stone than it was for the federal president to defy a federal court's discovery order and lie in a federal court proceeding? I don't think so. [I especially don't think so where the order to remove the block is substantively dubious as a matter of Constitutional law.]

In addition, perhaps Professor Reynolds - or somebody else - can explain to me why it is so important that judges obey orders from other courts but not precedent, even controlling precedent of those courts or statutes of the legislature. The Ninth Circuit, for example, routinely disregards Supreme Court precedent and has even so willfully defied the Supreme Court's rulings that in one case the Supreme Court became so frustrated with the Ninth Circuit's repeated interference with the execution of a murderer in California in defiance of Supreme Court rulings that the Supreme Court found it necessary to issue an order providing: "The stay of the Ninth Circuit Court of Appeals is vacated. No lower federal court is empowered to issue a stay of execution without this [Supreme Court's] authority." Should Ninth Circuit judges who defy clear precedent or statutes be impeached?

Judge Moore is charged with following his conscience instead of a court order. In that regard, it is worth keeping this little interchange from the confirmation hearings of Ninth Circuit Judge Harry Pregerson on October 3, 1979, the day of his confirmation hearing when he, then sitting Federal District Judge Pregerson, was questioned by then Senator Alan Simpson. Here is the exchange:

Simpson: If a decision in a particular case was required by case law or statute, as interpreted according to the intent that you would perceive as legislative intent, and yet that offended your own conscience, what might you do in that situation?

Pregerson: Well, of course it's a hypothetical question and life does not present situations that are clear cut, but I think all of us, judges and lawyers, would be very pleased if congressional intent was clearly discernible. I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.

Simpson: I didn't hear, sir.

Pregerson: I said, if I were faced with a situation like that, that ran against my conscience, disturbed my conscience, I would try and find a way to follow my conscience and do what I perceived to be right and just. Not that, I would hope not, it would mean I would act arbitrarily. I was born and raised in this country, and I am steeped in its traditions, its mores, its beliefs, and its philosophies; and if I felt strongly in a situation like that, I feel it would be the product of my very being and upbringing. I would follow my conscience.

Perhaps Professor Reynolds - or someone else - can provide some reason why it's "fair" for nine panelists to remove Judge Moore - who received the votes of millions - for doing exactly the kind of thing Judge Pregerson told the Senate he would do the very day of his confirmation?

And to complete an exquisite irony, Judge Harry Pregerson eventually became a member of the three-judge panel that attempted to void the recent recall of Gray Davis. That decision was, of course, completely defiant, wrong and willfull - and was subsequently reversed without dissent by a Ninth Circuit en banc panel.


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