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Post Politicization of Judicial Appointments: Brett Kavanaugh
Created by John Eipper on 07/12/18 3:59 AM

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Politicization of Judicial Appointments: Brett Kavanaugh (Francisco Ramirez, USA, 07/12/18 3:59 am)

What Tom Hashimoto (11 July) overlooks is that the Obama nomination of Garland was not even brought to the Senate by the GOP leadership and that decision was a new low in politicization.

The Senate leadership did not claim that Garland was unqualified but rather that an appointment made a year before the end of the Obama term ended ought to be ignored. That move was more than slightly odd and makes calls for the nonpartisan assessment of Kavanaugh by the same leadership hypocritical. Yes, I am thinking Mitch McConnell and allies.

Tom, of course, is entitled to call for nonpartisanship in this assessment because he was not part of that leadership.

If laws were objectively interpreted in a universal manner, how does one explain a divided court? I am not arguing that the justices are arbitrary or simply substitute their personal values for what is stated in the Constitution. I am arguing that the fact that the Court can be divided, as it has been on a number of important issues, from Roe v Wade to Citizens United v FEC to the "Obamacare" case is evidence that judicial decisions involve interpretations of both laws and how these are aligned with or inconsistent with the Constitution. The latter did not change, but one Supreme Court held that separate but equal schooling was constitutional and a much later Supreme Court ruled the contrary. Did one set of justices make an objective call and the other not so?

I understand that my perspective horrifies many a WAISer colleague. But I do not know of a more plausible interpretation of split decisions.

JE comments:  Well said.  It's always the other side that politicizes the courts.  Regarding the distinction between a justice's personal values and his/her rulings, I wonder how often the two diverge.  Not very often, I would guess.  (The "what is stated in the constitution" part may be misleading--what does the constitution have to say about campaign finance or abortion or universal health insurance?)


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  • Brazil's Politicized Judiciary (David Fleischer, Brazil 07/13/18 3:01 AM)
    In Brazil, at present, we have some very "polticized" higher courts. Judges on lower federal courts are selected by competitive public exams, but those on the higher federal courts--STF (11-member Supreme Court), STJ (33-member federal appeals court) and the five TRFs (regional federal courts) are chosen by the President and confirmed by the Senate. Between 2003 and 2016, these appointments were made by then PT Presidents Lula and Dilma Rousseff.

    Recently, the Polish government did a "dirty deal" to its Supreme Court (separation of powers?), by lowering the maximum retirement age from 70 to 65; thus removing a large majority of judges.


    The opposite happened in Brazil in 2015. With the maximum retirement age at 70, three STF judges were about to leave and permit then President Dilma Rousseff to appoint three new judges (hand picked among "PT sympathizers"). Very quickly, the Brazilian Congress passed a constitutional amendment increasing the maximum retirement age from 70 to 75--and these three judges were not retired. In effect, this was a "preview" for Rousseff's impeachment in 2016.


    Last Sunday (July 8), Rogério Favreto, a "PT sympathizer" judge on the TRF-4 in Porto Alegre issued an injunction (habeas corpus) to release former President Lula from prison--contrary to a previous TRF-4 decision, and decisions already taken by the STJ and STF. As other judges and analysts observed, "he broke the concept of judicial hierarchy" in Brazil. As might be expected, this created a great turmoil and later that evening, the President of the TRF-4 overturned that judge's decision, saying "he had been induced to make an error." Now the PGR-Federal Chief Prosecutor has asked the STJ to begin an investigation of Favreto's conduct where he might be removed from office and lose his retirement pension. Severe punishment.


    JE comments:  "Induced to make an error"--what a turn of phrase.  Courts have been politicized since Solomon's day.  FDR in 1937 introduced a proposal to increase the size of the US Supreme Court to as many as 15 justices, in order to neutralize the Court's resistance to the New Deal.  He failed at this, but others were more successful:  didn't Hugo Chávez "dilute" the Venezuelan Supreme Court by expanding it with his allies?

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