Bar Watch Bulletin August 7, 2006
Justice Kennedy's Definition of the Rule of Law, Gender, Race, and 9/11, Judicial Independence
The American Bar Association's Annual Meeting takes place in Honolulu from Thursday, August 3 to Tuesday, August 8. Once again, ABA WATCH is reporting live from the meeting.
Justice Kennedy's Definition of the Rule of Law
Hawaiian dancing and song, including "Let There Be Peace on Earth," began the ABA's Opening Assembly on Saturday evening. ABA President Michael Greco used his brief opening remarks to lobby for a civil Gideon policy. He decried attempts to erode the "separate, coequal" branches of government. He warned that the "politics of the moment can inflame passions against the Bill of Rights." He also proclaimed that "lawyers and judges are the guardians of democracy. Americans look to the ABA to protect their rights and freedoms."
Supreme Court Justice Anthony Kennedy delivered the keynote remarks. Justice Kennedy briefly discussed several turning points in the history of law. Most pivotal were two moments in the 18th Century: Blackstone's cohesive explanation of common law and the Enlightenment, which influenced the drafting of the U.S. Constitution. Justice Kennedy declared we were at another turning point. We are now in an era where we know "truth needs no translation, and the world is getting smaller." He stated "our best security is the world of ideas." However, he senses a "slight foreboding" and the "tide has turned." A "tsunami of expectations and discontent" may sweep in. According to Justice Kennedy, America must do a better job of defining the rule of law.
Justice Kennedy offered a three-part "suggestion" of a definition for the rule of law. First, "The law is superior to, and thus binds, the government and all of its officials." He said this may appear to be self-evident, but it is an "essential lesson that must be taught if corruption, greed, and graft will be eliminated."
Second, "The law must respect and preserve the dignity, equality, and human rights of all persons. To these ends the Law must establish and safeguard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them." Justice Kennedy maintained that the framers of the Constitution gave each generation its own chance to shape its own destiny. He stated, "Americans must understand that if the rule of law has meaning, it must be coupled with the opportunity to improve human existence." Furthermore, citizens living under corrupt governments have the right to improve their lives.
Third, "The Law must devise and maintain systems to advise all persons of their rights, and it must empower them to fulfill just expectations and seek redress of grievances without fear of penalty or retaliation." Justice Kennedy contends that the world cannot yet embrace Western ideas of the rule of law, thus we must link it with progress to improve humankind. He concluded, "Law is a liberating force, a promise, a covenant that you can hope, dream and plan." We must explain to a doubting world that "freedom hangs in the balance."
Gender, Race, and 9/11
The Commission on Racial and Ethnic Diversity in the Profession and the Commission on Women in the Profession co-sponsored a panel discussion on "Multicultural Perspectives on Gender, Race, and Crime in Post-9/11 America." Professor Camille Nelson of the University of St. Louis School of Law discussed "intersectional citizenship profiling," focusing on women of color who have been profiled. She was harshly critical of the widespread, pre-9/11 profiling of women of color from "narcotic source countries." She maintained that, as part of the "war on drugs," certain citizens were disproportionately targeted because of their country of origin or their gender. Women of color were particularly "mis-targeted" as possible drug mules. Post-9/11, she noted that "flying while Arab" became the new target of "private profilers," who are those who misuse their power as they claim to act in an official capacity. This profiling is both "misguided" and "destructive," according to Nelson. She argued that, unfortunately, previous targets of profiling--such as black males--often excused such profiling because of fears of terrorism.
Professor Elaine Chiu of St. John's School of Law discussed "The Criminal Law in an Age of Multiculturalism." Chiu bemoaned that, right after 9/11, race relations dropped into the "dark ages" due in part to an "unassailable public support" for racial profiling and deportation. This was due to an increased commitment toward national security at the expense of "equality, respect, and dignity." However, changing demographics will lead to an "age of multiculturalism" that will in turn lead to other, new questions about the substantive criminal law. According to Chiu, "As awful as selective enforcement and racial profiling are, their effects are compounded if individuals are prosecuted on the basis of laws that are themselves inherently unequal and unjust."
Chiu describes current criminal law as "assimilationist," as it "expresses the values and norms of the dominant Anglo-American culture to the exclusion of other minority cultures." Although some may protest this characterization, "their failure to appreciate the presence of culture in our penal codes is the result of their moral absolutism and legal centralism." An example of this phenomenon is the use of deadly force to defend a home from a burglar. Chiu describes this as an "alarming trend of valuing self-defense over retreat." Not all cultures, she emphasized, value property over life. Property rights are a very Anglo-American concept. This "assimilationist" approach leads to outdated criminal laws out of step with the American populace. To have criminal laws (based on British laws) that reflect the beliefs of only half of the American populace is "preposterous." A second consequence is the "loss of justice and equality for defendants of minority descent." Ultimately, "assimilationism is a recipe for disaster."
Instead, Chiu advocates a combined pluralistic/individualistic approach to criminal law. Minorities would be able to receive a hearing for their side of the case. Chiu maintains that a "respect for a defendant's culture is respect for the defendant itself." She supports a "cultural defense." Minorities must demonstrate that they are "deadly serious in their cultural commitments...The majority's refusal even to consider minority practices as an alternative is intolerable."
During the Q&A, several audience members questioned Chiu's support for a cultural defense. One audience member asked if a cultural defense would extend to honor killings. The victims would be the one on trial in these situations. Chiu acknowledged that cultural defenses would be more likely to be used in acts against women and children. Although the audience may not understand the sentiment, she maintained that defendants in these cases are very motivated to act by what they deem as "very offensive" acts by a woman. She concedes there may be some limits that would need to be set for this defense, although she has not written that journal article yet. Another audience member asked about the implications of minority-on-minority crime: does another defense extend to these defendants? Also, how does class impact a crime? Chiu said, in these cases, there are some defendants hoping for the "good life" but that does not mean class is a motivator.
A third panelist, Christian Halliburton of Seattle University School of Law and the ACLU, discussed the role of technology in post-9/11 policing. He warned of the civil liberties implications of such tools as brain fingerprinting and the extension of the USA PATRIOT against drug laws.
Judicial Independence
The ABA Standing Committee on Federal Judicial Improvements was the chief sponsor of a plenary session on "Judicial Independence in the Context of the Rule of Law in the World Today." ABA Incoming President-Elect William Neukom described several threats to judicial independence. These threats include judicial compensation, the sentencing guidelines, proposed legislation to create an inspector general for the judiciary (see yesterday's Barwatch), the proposed 9th Circuit split, and money in judicial elections. He described how two (unnamed) challengers to two sitting Washington State Supreme Court justices were receiving disproportionate donations by real estate developers. The incumbents were doing a fine job, and he feared if the challengers were elected, "Can we expect these judges to be fair arbiters?" When asked for a show of hands of how many audience members supported judicial elections, only about 10% of audience raised their hands. One audience member questioned whether attorneys were doing enough to support merit selection. Neukom conceded that "certain judicial elections" were OK, but the devil was in the details. Missouri Supreme Court Chief Justice Michael Wolff described the repercussions of a retention campaign against a colleague of his, where "automated phone calls by Phyllis Schafley" called constituents to describe terrible accusations. He said these tactics are akin to pushing an anger button showing the downside of elections.
Joan Biskupic, Supreme Court reporter for USA Today, described how judicial independence was front and center in the Hamdan decision. Biskupic described how the decision overturned an act of Congress that tried to take jurisdiction of the detainee detention issue away from the courts. Currently, Congressmen Sensenbrenner and Feeney were both raising red flags with threats to judicial independence. She noted that former Supreme Court Justice Sandra Day O'Connor (whom she had written a book on) was a champion for judicial independence and reaching out to Congress. She believes that Justice Scalia, however, fed the rhetoric of the critics, and she related as an example his statement that if the Supreme Court was not so activist, people would not have lost faith in the system.
Chief Justice Michael Wolff, when asked what constituted an activist judge, replied it is "someone who rules against you." He contended only a small minority on the left and right worry about this, and that 85% of people do not know or care about activist judges.
One audience member remarked that the Bush Administration was disregarding its obligations for national security reasons. Does this cause the world to lose faith in the United States? Justice Wolff conceded that the U.S. had not done well with treaties and it does hurt the United States when the Executive fails to honor treaty obligations. However, he said this phenomenon was the function of a democratic process.
Another audience member asked if the real problem was that the bench was not (with respect to race and gender) diverse enough. Neukom responded that the seminal event in the life of the country was slavery, and courts need to ensure that all citizens have rights. Most judges are brave enough to do this, even if they lose elections.
All of the panelists advocated visiting schools and public officials to educate about the importance of judicial independence. They also urged vigilance against proposed "bad" laws, such as a South Dakota initiative that would allow citizens to sue judges for wrong or improper decisions.