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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 40. Judge vs. Jury (part 2) | Main | 38. Perseveration in the "War on Drugs" »
Thursday
05Jan2006

39. Alito the Beaver

The Christian Science Monitor quotes Professor Jonathan Turley:

"I think the most dangerous aspect of Sam Alito is his deference to the government," says Jonathan Turley, a professor at George Washington University School of Law. "When it comes to government abuse and assertions of government power, Sam Alito is an empty robe."

A less-empty robe, presumably, would more aggressively assert government power to curb assertions of government power. 

USA Today ran an editorial decrying "Alito's troubling deference, both as a government lawyer and a judge, to the power of government institutions, employers and others in authority."  Put to one side the silliness of criticizing a lawyer for "deferring" to his client.  The point, apparently, is that a judge should use the power of his government institution to stand up to government institutions using their power.

The belief that power exercised by judges is somehow the opposite of power exercised by the government runs deep in the United States.   It's a classic idol of the tribe.  (See post 13.)  And it's a formidable barrier to clear thinking.

The Wall Street Journal (which doesn't allow even its own subscribers to access its website unless they pay an outrageous toll), yesterday ran a left-column story detailing Alito's conception of the "unitary executive branch", meaning the president's near-monarchical authority to disregard congressional enactments.  Alito's conservativism is of a distinctly Federalist nature -- and I'm not referring to the Federalist Society but to the real Federalists, as for instance Noah Webster as depicted in the preface to Sean Wilentz's The Rise of American Democracy: Jefferson to Lincoln.

We can certainly take for granted that anyone who's devoted the prime of his working life to the federal judicial bureaucracy is committed to advancing the interests of that bureaucracy.  (See post 2.)  So Alito should be viewed as someone strongly inclined to expand both executive and judicial authority.  He can do both - simultaneously - from a seat on the Supreme Court.  If the Senate votes in favor of his confirmation, it will be inviting him to gnaw away at congressional power from both ends. 

AuthorJoel Jacobsen | Comment2 Comments | | |
DateThursday, January 5, 2006 at 11:37PM in ,

Reader Comments (2)

The reason most judges want to be judges is to see that justice is done, not to gain whatever power they can get their hands on. The fact that someone works in one branch of government or another does not say anything about what he thinks the proper role of that branch should be. To anyone who hasn't spent too much time reading Nietzche, it is also easy to see how someone could believe that an insitutional role he fills (or has filled in the past) should carry with it less power than it currently does, and act to limit that power. A president can, and sometimes should, act to limit executive power. A Justice can, and sometimes should, act to limit the power of the courts.
January 6, 2006 | Unregistered CommenterBob
A judge requires power to see that justice is done. There's no contradiction between the two. "An honest person who runs for the city council is also seeking to maximize her power." (Post 23.)
January 8, 2006 | Registered CommenterJoel Jacobsen

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