Friday, December 13, 2002

Armistice day for the war on drugs The State of Michigan is about to submit its long-overdue recognition of the failure of the "crack down on drugs" policy by repealing the mandatory minimums for drug dealing, leaving the sentence entirely to the discretion of the judge, as it should have been left. Gongwer reports that the repealer has passed in the Michigan Senate. Meanwhile, the push to legalize marijuana on the other side of the Ambassador Bridge is again heating up. Since Detroit decided to embrace casino gambling to compete against the Windsor casinos, are nude dancers and dope the next frontier?  8:39:18 AM     Saving the unborn? A Georgia legislator has introduced a bill to require a full formal and contested hearing  before any woman can have an abortion, with a court-appointed guardian for the unborn child and the issuance of a "death warrant" by a judge. The sponsor, Rep. Bobby Franklin, R-Marietta, said "A mother would have to argue why the child should die and why her rights would take priority over the rights of the child."  The introduction of the bill will be timed to coincide with the 30th anniversary of the Supreme Court's decision in Roe v. Wade. Franklin is also quoted as saying: "I am pro-life, but this bill does not restrict abortion. It does acknowledge the child's rights to due process." This exemplifies one of the problems with the presumption of constitutionality and legitimacy afforded to legislation.  The courts indulge in the belief that legislation is introduced in good faith, in order to accomplish a goal for society in a legitimate and constitutional way.  And most often it is.  Unfortunately, legislation is sometimes introduced for the purpose of good old-fashioned grandstanding, with no consideration for whether it will pass constitutional muster.  On further thought, I will correct that.  Franklin cares very much about the constitutional issue. If his bill passes, he will undoubtedly looking forward to the certain Federal court ruling finding it unconstitutional, since it will give him a campaign issue for 2004. Such legislation is pursued solely to enhance someone's political career, and has nothing to do with saving the unborn. 8:35:03 AM     The role of the judge Judge John M. Walker, Jr., Chief Judge of the Second Circuit, is the author of "Judicial Tendencies In Statutory Construction: Differing Views On The Role Of The Judge" (PDF), which appeared in the 2001 Annual Survey of American Law of the NYU Law Review.  This is a well-reasoned and thoughtful analysis of the contrasts between the classic view of the role of the judge, which he calls the "purposive" school, epitomized by Judge Learned Hand, and the "new textualism" advocated by Justice Scalia, on the issue of statutory interpretation. 8:27:09 AM     Judicial politics Brian Dickerson of the Free Press provides an update on the simmering unresolved issue of the President's four Michigan nominations to the Sixth Circuit, still stalled in the Senate, including debunking an interesting rumor that Judge Henry Saad of the Court of Appeals, one of the nominees, plans to move to Tennessee to get the nomination off dead center. I think that, if Levin and Stabenow do not back down, the issue will be resolved by a major structural change, doing away with the current "blue slip" system giving a state's Senators an absolute veto over nominations.  Whether that will be a good thing for the Senate as an institution I will leave to others more knowledgeable than I am to ponder. 8:26:01 AM

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