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Strategies & Market Trends : Zeev's Turnips -- Ignore unavailable to you. Want to Upgrade?

To: Bosco who wrote (314)	12/9/2000 11:21:02 PM
From: Carl R.	Read Replies (2) \| Respond to of 644

Actually no, I wasn't judging impartiality by whether or not they agree with me. I like a good debate, and I always appreciate a good argument even if I disagree with it. <G> Instead I was judging impartiality based on whether or not their decision was consistent with their party's position. If I apply the same rule to the USSC, then you have to credit Breyer and Ginsburg for the first USSC decision, and Souter and Stevens for their dissents in the decision to halt the recounts. I also tend to give points for what I consider to be sound legal reasoning (whether or not I agree with it), and am more likely to consider someone suspect when I have serious misgivings about the legal logic. FWIW when I was a law student and used to read a lot of cases I always had tremendous respect for Stevens, much more so than Rehnquist. Perhaps in the intervening years the quality of their decisions have changed, who knows? One concept that these four legal whizzes on the FSC don't seem to grasp is the concept that was expressed by Justice Douglass, who was himself concerned to be an activist justice back in the 60's. One day while preparing to head to the office someone told him "do some justice today", to which he responded that it wasn't his job to do justice, but only to interpret the constitution. What lay people fail to realize if the difference between juries and judges in this respect. The job of juries is to do justice within the narrow confines that they are empowered. When a judge is acting as a fact finder he also has that obligation. When a judge is acting as a finder of law his obligation is to follow the law even though it may lead to an injustice in a particular case. The whole concept of our legal system is premised on the proposition that we have a system of laws that is designed to produce fair and predictable results that will do justice most of the time, and it is an acknowledged fact that sometimes the results in particular cases may not be as just as they are in other cases. As a result of this training you will note that in my analysis of the election controversies what has been absent completely from my posts is any discussion of what is just or fair. There are certainly arguments that it might be "fair" to count the undervotes; the problem is that the law as it stands makes no provision for doing so. The butterfly ballot may have been "unfair", but the law provides no adequate remedy for the situation. Filling in the voter ID on applications for absentee ballots may be illegal and "unfair", but whatever result the law provides for it should be implemented. I have no problem with changing things prospectively, as in getting rid of punch card ballots. That certainly should be done. I have no problem with the legislature adopting specific rules for future elections as to when manual recounts will be permitted and when they won't be, and as to when a vote should be counted and when it shouldn't be. What you won't find me arguing is that a court should forget legal precedents and do what they think is "the right thing to do". When a court does that, it creates bad law, and then when future situations resolve you end up with bad precedents that in turn need to be overruled. As for the basis that the USSC will use to overrule the Florida court, I think you'll find it in the Chief Justice's dissent as he anticipates it. Carl