Courting Failure

I found two pieces of information about the federal court system interesting and worth pondering. Consider the first item from the New York Times about the number of vacancies in our courts:

The number of vacancies on the nation’s federal courts has reached an astonishingly high level, creating a serious shortage of judges and undermining the ability of the nation’s court system to bestow justice.

Of 856 federal district and circuit court seats, 85 are unfilled — a 10 percent vacancy rate and nearly double the rate at this point in the presidency of George W. Bush. More than a third of the vacancies have been declared “judicial emergencies” based on court workloads and the length of time the seats have been empty. By far the most important cause of this unfortunate state of affairs is the determination of Senate Republicans, for reasons of politics, ideology and spite, to confirm as few of President Obama’s judicial choices as possible.

This, in itself, is an embarrassment, though it seems unlikely this Congress could do anything to make itself look worse. But the number of important court cases backing up due to Congress’ reluctance to either nominate or  confirm proposed justices raises serious questions about the ability of these people to govern this nation — if we had any doubts.

On the other hand, we read a good piece of news from Phoenix, Arizona regarding a decision by federal district court judge Murray Snow regarding the country’s self-proclaimed “toughest” sheriff, Joe Arpaio, and his policy of racial profiling in defiance of federal mandates and constitutional principles guaranteeing equal rights to all citizens in this country. A case was brought against Sheriff Arpaio by, among others, Manuel de Jesus Ortega Melendres, a Mexican tourist who was in the United States legally when deputies took him from a car in which he was riding with a white driver and kept him detained for nine hours while they determined whether or not he was indeed in the country legally. The country’s “toughest” sheriff has apparently a defiant attitude toward federal laws and a declared policy that reflects his own particular brand of racism — and, sad to say, keeps him secure in his office.

Arizona lawman Joe Arpaio has required prison inmates to wear pink underwear and saved taxpayers money by removing salt and pepper from prisons. He has, at times, forbidden convicted murderer Jodi Arias from speaking to the press.

The stern Maricopa County Sheriff has said the federal government will not stop him from running his office as he sees fit. But on Friday it did.

A judge [Murray Snow] ruled Friday that Arpaio’s routine handling of people of Latino descent is not tough enforcement of immigration laws but instead amounts to racial and ethnic profiling.

Some of those profiled sued Arpaio, and Judge Murray Snow found their complaints to be legitimate.

The federal court in Phoenix ordered “America’s Toughest Sheriff” — a moniker Arpaio sports on his website — to stop it immediately and has banned some of his operating procedures.

The sheriff’s office has a history of targeting vehicles with occupants with darker skin or Latin heritage, scrutinizing them more strictly and detaining them more often, Snow ruled.

As is the case here, it is not unusual for the courts to do things right in this country. Indeed, one might say the judicial system is one of the great strengths of this country and something we can be very proud of — and which keeps us this side of barbarism. But the unwillingness of Republicans in Congress to act on federal court appointments means that many cases will go untried and  innocent people will suffer unfairly. In the case of the country’s “toughest” sheriff, the case took eight months between the days of the final testimony and the decision itself.  One suspects that Judge Snow’s calendar is filled to the brim. Can we agree that this is yet another strike against the Congress?

The founders thought that incompetent politicians would simply be voted out of office. Alexander Hamilton says this repeatedly in the Federalist Papers. That doesn’t often happen, however, because they have enough wealthy backers (like the Koch brothers) to convince gullible voters at election time that they are doing a bang-up job on the voters’ behalf. So we are faced with Congressmen who hang on to their offices for dear life, by ignoring their civic duties and their constituents but pleasing those who hold the purse strings, knowing that it beats real work and pays very well. In spite of the fact that it might lead to inefficiency (though that ship has already sailed), there surely ought to be term limits on congressional offices. It would force the politicians to be a bit more responsive to their constituents and less concerned about reelection. Politics would be less a career choice and more a temporary respite from the business of making an honest living. That’s one the founders missed, for all their prescience and political savvy.

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Legal Abuse?

The U.S. Supreme Court is in the news again with the decision in the latest case expected to be ideologically based, as usual. In this case. the Court is listening to arguments regarding Arizona’s immigration law that the U.S. Government insists violates federal immigration laws. It would appear the main issue is over states’ rights. Does Arizona have a right to deal with immigrants or is that the purview of the U.S. government?  There are other issues with the law as well, however: its implications are most interesting. On the face of it, the law seems fairly straight-forward.

The law makes it a state crime for illegal immigrants to seek work or fail to carry proper immigration papers, and also requires police officers to check immigration status and make warrantless arrests for immigration crimes in some cases.

The government’s argument insists that a state (any state) dealing with immigration can interfere with international discussions and possible dealings between this country and its neighbors. What this means, I take it, is that Arizona could foul up relations with Mexico (in this case) and create tensions between the countries. In fact, it could create an international incident. This would appear to be a legitimate concern, but, from what I have read, the U.S. government isn’t making a very strong case — even with the justices who would tend to agree with the government’s position. Perhaps it is time for the federal government to hire some competent attorneys. In any event, the issue of racial profiling and the possible abuses that might arise from it are equally compelling.

On the face of it, the procedure of stopping “suspicious” looking people and asking them for their papers would seem to be fairly straight-forward and makes the rest of us feel safe and cozy in our split-level house in the suburbs.  But it most assuredly is not. Not only does it involve racial profiling, as mentioned. It also raises the specter of a police state with power given to local authorities to stop anyone who seems “suspicious” and detain them for as long as they deem it necessary, even incarcerate them should they “seek work.” Needless to say, there were a number of protesters outside the courthouse worried about the implications of this decision as it bears on all immigrants. What is it again that is inscribed on the Statue of Liberty?

At the risk of committing the “slippery slope fallacy,” I do worry that excessive power granted to any police force is a dangerous thing. I would prefer to err on the side of the rights of individuals not to be stopped because they are regarded as “suspicious” by a group of high school graduates wearing police uniforms and carrying guns. The attorneys for Arizona insist that this would not happen, but the law allows it and we know from history that what is possible often becomes the case. This law leaves the door wide open for abuse, a failing humans seem to have in abundance.

 The article alludes to this concern: Justice Anthony Kennedy, generally the court’s swing vote, asked repeatedly about how long someone would be detained while a police officer checked his or her status. “What if it takes two weeks,” to determine someone’s status, he asked. Paul Clement, representing Arizona, said it would take an average of only 11 minutes. Verrilli [for the U.S. government] countered that it takes 70 minutes, when you take into account the hour wait to get through to the federal government’s databases. Surely, Verrilli could have done better than this!  Was he going for laughs? Indeed, the question of how long officials in Arizona could detain “suspicious” people is the key here. And Verrilli could have made a stronger case though, given its recent history, the Court is inclined to rule in favor of Arizona no matter how strong a case the government makes. And it is a good bet that’s what the Court will do.