Despair Not For We Shall Prevail in Time

A lot of my liberal friends are up in arms that the California Supreme Court upheld Proposition 8. I'm not. I'm even a bit glad that they did.

The problem here isn't the court. The problem is Proposition 8 itself. And California's ridiculous rules for amending its constitution. Remember that this is the exact same court that gave Cali gays the right to marry in the first place. We loved them when they did that. They said marriage was a constitutional right. Of course, if they determine that it's a constitutional right, well, the only way to make it unconstitutional again is to change the bleeding constitution, which is exactly what Prop 8 did.

The constitution, which the CSC is sworn to uphold, is different now than when they made their initial decision. The (kinda wobbly) grounds for this particular suit were based on whether the constitution was amended or revised. There are two different standards for those things. An amendment only needs a majority vote whereas a revision requires legislation with a two-thirds majority. Dumb? Yes. Legal? Also yes. These things are far from mutually exclusive.

The process, while moronic, was entirely legal. The meatheads in California passed an amendment through their own codified-into-stupidity rules. It's idiotic that 50.1% of the state can decide to amend their constitution, which is supposed to protect rights, in order to deny rights. And massive funds for propaganda coming in from Utah? Sure. Bring it on. But those are the rules. If the CSC had ruled to overturn the vote, they would have been wrong. And there would have been the biggest, nastiest, ugliest right-wing hissy fit about judicial activism that you would ever have the misfortune to experience. And they would have been right, for once.

This is a temporary setback, but it always was. Prop 8 supporters are on the wrong side of history. Full marriage rights are inevitable. I sense that the right knows this and are throwing up as many roadblocks as they can. California will have them soon enough, probably in a few years when they put it back up for a vote and the demographics change just enough to swing it. Younger voters, and those not quite old enough to vote, favor full marriage equality by a pretty hefty margin. The numbers get lower as the voting age gets higher. You don't need a weatherman to know which way the wind blows. It won't be long.

This is not really a sad day. If you had asked even the most optimistic gay rights advocates five years ago where we'd be now I don't think any of them would have predicted that more than half a dozen states would either have full equality or be leaning hard in that direction. (Should I say it? Okay. I'll say it. Fucking Iowa!) But here we are. It's actually moving very swiftly, by historical standards. Someday, even sooner than we think, we'll wonder what all the fuss was about. And Miss California's fake boobs will explode in her face.

Sessions in the Sun

You know what I hate?

Actually, you probably do. The list is long and much of it has been covered in this space.

But right now. What I'm thinking about. Okay, I'll tell you. It's the completely misguided (or possibly dishonest) views about what a judge's job is that are constantly spewed by conservatives.

Antonin Scalia considers himself a "strict constructionist". This is a nonsensical idea. The concept holds that the constitution is settled and that all you have to do is read it and follow it. Judges supposedly shouldn't "legislate from the bench". They shouldn't "interpret" the law, they should simply follow it. Of course, this is easily knocked down. After all, if the law didn't require occasional interpretation we wouldn't need judges now, would we? How many 5-4 decisions have we had? Someone's not following the law.

"Strict constructionism" is just a rhetorical dodge anyway, a way to pass off reactionary viewpoints and judgements as "what the Founding Fathers envisioned". Bullshit. The Founding Fathers never would have stopped ballots from being counted. Or told someone that they couldn't sue for pay discrimination because said discrimination had been cleverly hidden from them until after the arbitrary statute of limitations had passed. "Sorry. My hands are tied. It's not me. It's the law." Uh-huh.

We'll continue to hear more of the "following the law" bullshit as we get closer to an Obama Supreme Court appointment.

Here's professional racist Senator Jeff Sessions (R-AL) on what makes a good judge (lifted from this Salon article).

"As long as they have a deep commitment to the law and recognize that when they put on the robe, that they go beyond politics and they're required to subordinate themselves to the law as written."

Actually, no. One of the Supreme Court's main functions is to check the legislative branch by passing judgement on the constitutionality of its laws. If the law is unconstitutional, not only do they not subordinate themselves to it, they strike it down. That's their job. And this man is now the ranking member of the Senate Judiciary Committee. Hooray for us.

Dumb Letters: Jury Rules

I hate to call this one a dumb letter. It's not really dumb. But I disagree with it strongly.

Actually, I'm going to bring in a few of the letters on this topic. The letters are in response to an article in the NYT about jurors -- who are supposed to be trapped in their little courtroom world in order to avoid outside influence in a case -- using the internet (thank you, iPhone) to get information during the trial.

It's a thorny issue. I don't have all of the answers for it. But here's an uber-democratic missive from a gentleman in Miami.

Our system of justice claims to seek the whole truth, and that needs the whole facts, not a censored set of information controlled by a judge and lawyers.

Jurors should be encouraged to participate in a trial and discover information for themselves by any means possible — Internet, books and so on. They should also be encouraged to question prosecutors, defendants and witnesses, with the judge and lawyers assisting (not controlling) the process.

We need to adjust our justice system to modern times and make it a more participatory, democratic process and discard the closely controlled, adversarial game favored by judges and lawyers. Open up the system and let the facts fall where they may.

Okay, I'm all for more information. I like information. I seek it out relentlessly. And I served on a jury once. It was a murder trial. There was some information that we didn't get but were made aware of after-the-fact by the judge. This information would have swayed some of the jury into imposing a harsher sentence on the defendant. (I thought that what was presented in court was already more than enough.) I didn't get any outside dirt on the case, but over the course of the trial I did manage to read all of Gunter Grass's "The Flounder" while waiting in the jury room for the lawyers and judge to hash out what we could hear and what we couldn't. For the record, it didn't sway my opinion. Ultimately, a nonsensical verdict of manslaughter was given in what was clearly a case of murder. (Manslaughter is for accidental killing, like from drunk driving. It is impossible to "accidentally" kill someone by shooting them in the chest from two feet away, unless your defense is that you thought it was a marshmallow gun.)

In addition, I have a friend who was peripherally involved in a murder case. He was a witness to an act of violence against someone who was later murdered by the same perpetrator. This prior act was also considered inadmissible. After the fact, some of the jurors in the case were on a national television newsmagazine. They were played the 911 tapes of the prior incident and admitted that they would have been swayed by this if it had been presented in court.

But there is a reason that some information is inadmissible. It isn't because it's not the truth. We may not agree with the judges' rationales (and I certainly didn't in the above cases), but they make their decisions based on their knowledge of the law and not on emotions or a sense of retribution (we hope). I certainly don't think we should just trust all authority figures. But I also don't think we should always trust ourselves and we certainly shouldn't always trust the 12 random people who couldn't get out of jury duty and who have no knowledge of the law other than what they saw in the O.J. Simpson trial, which was hardly a stellar example of grave jurisprudence.

Back to the letter. The writer suggests that the jury should be allowed to question the lawyers, witnesses and defendants. This may sound great on the surface. But after my experience on a jury, all I can say is I am utterly relieved that some of these people never had a chance to open their mouths in that courtroom. It was bad enough listening to them in deliberation. Some of them didn't seem to have heard anything said in the courtroom other than what they wanted to hear. Others didn't seem to have heard even that.

There has to be some kind of a bar (no pun intended) for participation. Otherwise, we won't have trials, we'll have "The Jerry Springer Show". ("Yo, how come you didn't slap that bitch?") Another letter writer also has a much higher opinion of the general populace than I do.

Jurors’ use of the Internet reflects both the day-to-day importance of the Internet as well as a revolt against a system that insists on keeping intelligent and discerning jurors from being given the whole truth before they render a verdict. We should have greater faith in jurors’ abilities to separate and weigh evidence properly.

Okay, again this is great in theory. But I counted one other juror in my trial who seemed truly intelligent and discerning. There were about three or four others who seemed at least marginally capable of coming around to reason, if such a thing should ever rear its homely head. The rest of them I wouldn't trust with the decision on whether we should all stab ourselves in the eyes with chopsticks. You can have greater faith in people, if that's your thing. I sure don't.

Another letter writer modulates this concept some.

Allowing jurors to submit questions that are screened by the judge for witnesses is one way to overcome the limitations of the purely adversarial trial system.

As full an account of the truth as possible is the goal of a trial, and answering admissible juror questions can mitigate the problem of jurors seeking better understanding of the facts of a case outside the courtroom.

Okay, I can get behind that. This would allow some participation from the jury but keep control of the situation in the hands of the professionals. The judge could decide which, if any, questions were relevant and mediate in their dissemination. In this case, the middle ground is entirely reasonable and should be acceptable to all parties.