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[The Teflon Robe], Or A GST On Judicial and Prosecutorial Misconduct
AngelHedgie
Registered User regular
Registered User regular
So, in a number of other threads, we've discussed how it seems to be an ongoing wave of judicial misconduct - judges abusing their positions with little oversight to hold them accountable. With the disparate origins of those threads, it seems like this is something systemic, which would be worth looking into.
The good news: someone did.
The bad news: their findings are terrifying.
The very short version is that judicial misconduct is often handled behind closed doors, helping incentivize minor punishments. Furthermore, since many of these judges are elected (an incredibly goosey practice that needs to die in a fire), the private nature of judicial sanctions robs voters of key information in casting their votes, kneecapping a mechanism of judicial accountability. And even when judges manage to engage in misconduct so egregious that it does become public, they are often given the option of resignation in lieu of an investigation, further hamstringing accountability. And this misconduct has a real cost in denying people access to the court and tainting cases.
The good news: someone did.
The bad news: their findings are terrifying.
The very short version is that judicial misconduct is often handled behind closed doors, helping incentivize minor punishments. Furthermore, since many of these judges are elected (an incredibly goosey practice that needs to die in a fire), the private nature of judicial sanctions robs voters of key information in casting their votes, kneecapping a mechanism of judicial accountability. And even when judges manage to engage in misconduct so egregious that it does become public, they are often given the option of resignation in lieu of an investigation, further hamstringing accountability. And this misconduct has a real cost in denying people access to the court and tainting cases.
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The way bad judges seem to act totally without thoughts of repercussions would suggest a system that has reinforced that behavior for a long, long time.
Fuck this bullshit.
This is one of the reasons the refusal of the Supreme Court to allow cameras in oral arguments rankles me. The reality is that judges have been allowed to be petty tyrants in their courtrooms for a number of reasons, many of which fall back to the legal profession demanding that they be allowed to self police, and then demonstrating why that doesn't work.
Hell, I'd love to start seeing judges get run out of town when they start to be pissy about "they said nasty things about me in my courtroom." Like these fucking parasites need to get the fuck over themselves because everyone else has to the move the fuck on, but these shitheads get to play the whole "I'm a judge and I get to treat my courtroom my like little fiefdom!"
battletag: Millin#1360
Nice chart to figure out how honest a news source is.
The problem is that lawyers are pretty much trained to accept it. Some of it is due to judges routinely being vindictive geese - the articles I linked to talk about an OK judge who had local lawyers cowed because they knew that they and their clients would be targeted. (And it was revolting to see the OK chief justice throw them under the bus for his failings, saying they should have spoken up.) But some of it is cultural as well - one of the reasons I have little respect for legal commentator Ken "Popehat" White is that he claims to be opposed to the carceral culture in the US, but when people point out that judicial behavior like berating people in the courtroom is part of that, he's responded that "judges yell".
This is just WTF, and that prosecutor needs to not be one.
This is just insane, and an unprecedented injection of the judiciary into the operations of the military.
By thinking he's the ultimate arbiter of events.
~ Buckaroo Banzai
-Indiana Solo, runner of blades
Unfortunately, nobody wants to do this, thanks to institutionalism with regards to the judiciary, and the toxic belief that judicial independence means that the judiciary should be self policed. As LGM poster Paul Campos put it:
* The commander in question has a belief that fetal tissue was used in the development of the vaccine. (This is technically correct, see below.)
* The commander believes that, as a Christian, they have a valid religious objection to the vaccine, and puts in a request for a religious exemption. (Conservative Christians have abortion=bad as a foundational belief, so this checks out.)
* While the Navy does have a religious exemption process, the process is to deny all requests.
* (The Navy rejection letter assumes their beliefs are genuine, but there is no backup process in place because the risks of spreading COVID are too high, social distancing doesn't work properly on a warship, and we have a fucking vaccine. Get it, or get out.)
* So, now it's a religious freedom issue, and the USA is always willing to take religious freedom past what is reasonable.
* Religious freedom applies to the armed forces as well as the rest of the nation, so the judge does have jurisdiction.
* The judge issues a preliminary injunction, because that's how these things work.
* The commander might even win their case, because again, the USA is completely willing to take religious freedom past what is reasonable.
Actual ruling
Now, about the aborted-derived cell lines. They were taken from two abortions, performed for the usual reasons, from back in the 70s and 80s, and then mass-produced. They're not used for the production of the vaccines, they just used them to make sure the vaccines worked on human cells and didn't have any horrifying side effects before injecting any actual people with them. Both the Catholic Church and the Southern Baptists have explicitly okayed the COVID 19 vaccines that used this testing. The people in question are basically rejecting the vaccine because somebody squirted some vaccine on a petri dish once. I could order some aborted-derived cell lines, drop some Aspirin in, and now Aspirin would be in the same category as the standard COVID-19 vaccines, as it would also have been tested on aborted-derived cell lines. (In theory. I doubt I can just get this stuff on Amazon.)
https://www.nebraskamed.com/COVID/you-asked-we-answered-do-the-covid-19-vaccines-contain-aborted-fetal-cells
http://publichealth.lacounty.gov/media/Coronavirus/docs/vaccine/VaccineDevelopment_FetalCellLines.pdf
But let's play by asshole rules. There's more than one vaccine, and I found a page that helpfully lists out which vaccines have been tested on abortion-derived cell lines. My advice to the Navy would be to pick out a vaccine from the list that hasn't been tested on abortion-derived cell lines, order a thousand doses, and use those to vaccinate everyone that's playing stupid games over this. It's technically giving in, but in a asshole kind of way. (Fine, you've convinced us you have a (sigh) "legitimate religious objection" to the vaccine. Here's your vaccine that doesn't have that same problem.)
https://lozierinstitute.org/update-covid-19-vaccine-candidates-and-abortion-derived-cell-lines/
The big change was the judge's order banning "adverse action". Normally when one of these cases comes up, the military is rightfully enjoined from disciplining the individual prior to the ruling, but the courts grant the military wide latitude in personnel actions to maintain readiness, with the understanding that any attempt to wield this as a punishment would be treated as the military engaging in adverse action and would hurt them in the courts. So normally Captain Antivax can claim a religious exemption for his vaccination to be in ready status - and would promptly be given a desk to command. But this time, the judge has explicitly said that removing these individuals from their posts will be considered adverse action in of itself, so the military has a ship in whom they have no trust in its commanding officer, and yet cannot remove the CO.
My impression is that judges being elected would fall into a lot of the same pitfalls that the american two-party system already suffers, yes? (Extreme tribalism for one) - and that in addtion to that, there's no system to ensure that voters have the information needed to make good choices, let alone the motivation to act on said info (Though the latter is hardly a uniquely american problem, it seems a notable issue for something as fine grained as electing judges).
So.. .what's the alternative systems for putting judges in position of power, and how do you prevent abuse or political capture of those positions through whatever new system?
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Honestly I'm incredibly surprised that a federal judge can even make a call like this.
I would have expected the response from the Navy to be "Are you disobeying a direct order? Cool, here is where we court martial you, shithead." and that to be the end of it. At least as far as military funtions go.
Said shithead could then try and sue the Navy in federal court or whatever but I'd have expected that to be a thing that happened after he got his dumbass removed from the military. Probably while serving a prison sentence.
So just to clarify, this judge (and all judges at the federal level) was appointed, not elected. Judicial elections come at the state level and lower.
In general it's a better system than electing judges, except for the problem inherent in all judges, i.e. the extreme amount of power and lack of accountability that they're granted.
As for how to prevent abuse? There are a number of thoughts on this but personally I think it needs to be easier to get rid of bad judges. You can impeach them but that falls victim to the same political issue as all other impeachments: it requires 2/3 vote for removal in a political body that's as close to 50/50 split as can be.
-Indiana Solo, runner of blades
So, here's the thing - while soldiers give up a number of liberties for good reason, they don't give up all of them, and religious liberty is one of those. (If you want to see what can happen when that gets fucked with, read up on the Sepoy Mutiny.) In addition, there's a reason that, no, you don't get to punish someone for a potentially unlawful order until the legality is hammered out. That said, the historic compromise I pointed out above has worked - the individual is protected from direct disciplinary action over contested orders, while the military is allowed to maintain readiness.
Maybe, if this wasn't the same fuckhead judge that's been known for playing fast and loose with judicial power taking precedence over the executive. This isn't the first time he's done something overstepping his bounds.
The problem with electing judges isn't political. It's that the general population has no way to judge if a justice is good or bad. There's a whole bunch of tradition and guidelines along how they campaign. A lot of places even remove party affiliation which as an ideal is correct but removes yet one more signal that voters can use to identify beliefs. It basically makes it next to impossible to determine who to vote for even if you're willing to put in the effort to research the candidates and if you aren't it basically comes down to voting for the incumbent unless you have an explicit reason not to.
Appointments have a bunch of issues as well, but at least the person appointing them has the staff and methods to ensure the justice aligns with their values and thus indirectly the voters that elected them.
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The issue is that of judicial independence - elected judges are accountable to the public directly, and as a result wind up having to play to the biases of the public to keep their jobs, even if doing so is counter to justice. For example, elected judges tend to be tougher on criminal defendants than appointed judges, especially if it's an election year. With appointment, there is a layer of abstraction that is supposed to serve as insulation from the public, which is supposed to allow judges to act in the interest of justice even when it may run against popular opinion.
That said, this is the theory, and the reality is much more complicated. We've seen cases where the popular sentiment is more in line with justice (the whole Aaron Persky situation is a good example of this, where a judge who routinely diminished the impact of sexual assault was given a pass by the legal community, resulting in the public voting to recall him), and in the legal community, there has been a growing sentiment of judicial inviolability, where the court is the judge's personal fiefdom and is given wide latitude in their conduct.
Edit: This is a comment by a lawyer talking about the failure of self-policing by the legal profession, which ties back to the issues of judicial accountability, and points out how this feeds into the crisis of elite impunity.
I'm not sure that's all that surprising.
I'd kind assume that judges abusing clerks happens almost exclusively behind closed doors.
Which doesn't make it any less reprehensible at all of course.
But sort of seems like that's how sexual harassment among "the elite" of our society goes down.
Kavanaugh is a perfect example of this. His preference for hot young women for clerks was well known. Enough for that creepy tigermom lady to make it a significant focus for new applicants.
Yeah, but what are they going to do about it?
Granted in regards to vaccines, I don't think there should ever be a religious exemption, even if their is some obscure religion that has something vaguely coherent enough to make such an interpretation. Like if some adult wants to be a martyr for their religion and it doesn't endanger someone else. So be it, but I draw the line when there is ample evidence that it can be a clear danger to others because no has a right to forcibly martyr others for their religious belief.
battletag: Millin#1360
Nice chart to figure out how honest a news source is.
The judge likely won't face any punishment, but the ruling also isn't going to stand on appeal and it's likely the appeal will be decided quickly. It also excludes the main issue the Navy had.
Yeah, it doesn't matter. Dude could literally take a shit in the middle of court and nothing would be done about it.
There is a LOT of loaded language in that article.
The SC prevented the injunction from applying to deployment decisions, which means the Navy can just shuffle everyone involved into desk jobs while the suit goes through the courts, and the new injunction abides by that decision. My earlier advice for the Navy to source a vaccine that passes their stated objections stands, because there's a decent chance the Navy will lose at least in part.
The moronic defense my far-Right brother uses is that the Covid vaccines were developed using stem cell research from aborted fetuses. Nevermind that the stem cells had nothing to do with the production or actual development of the vaccines and that the stem cells were only technically involved, because that's the card he pulled to get out of vaccination.
And the idiot has a degree in biology and was still anti-vax.