JKS: >Shane thinks that most judges are just tools of the capitalist class who do
their bidding. ... Even in the case of Justice Rehnquist, the charge is unfair. He just thinks
along their lines.<
it's a mistake to think in such individualistic terms (a mistake that's usually more common among economists than lawyers or philosophers). Why did scum like Rehnquist rise to the top? the judicial system has a series of selection mechanisms which determine who rises and who doesn't. These mechnanisms reflect the political balance of power and the nature of the property system that meshes best with capitalism. Those jurists who don't fit in don't rise, or even fall (as when a bunch of California supreme court justices were ousted a few years ago for being "too liberal"). Also, the judicial system seems to train people to think like Rehnquist: among other things, if one knows that success in the hierarchy can be more more easily by embracing the dominant ideology, then the incentive to accept that ideology. Those who embrace it most sincerely are rewarded. Those who don't tend to drop out or sink into backwaters.
In other words, it's not Rehnquist who's corrupt (as far as I know -- we'll see when his private papers and the like are revealed) but the legal system, while such a legal system is the only one that's consistent with an exploitative mode of production (unless the working class and other "subaltern" groups can exert countervailing power).
Jim Devine [EMAIL PROTECTED] & http://bellarmine.lmu.edu/~jdevine
> -----Original Message-----
> From: Justin Schwartz [mailto:[EMAIL PROTECTED]]
> Sent: Sunday, July 28, 2002 10:11 PM
> To: [EMAIL PROTECTED]
> Subject: [PEN-L:28739] Re: Re: Expertise
>
>
>
> >Justin speaks of "expert judges (in the legal system) who
> are empowered to
> >definitively resolve disputes by entering enforceable orders."
> >
> >Exactly what are "judges" in the American plutocracy "expert" in
> >outside of convincing the plutocrats and their political agents that
> >they are reliable defenders of plutocracy in general and of their
> >sponsors' interests in particular? In "the law," as for instance
> >William Rehnquist, Clarence Thomas, Kenesaw Mountain Landis,
> >John Marshall, the US Supreme Court (with very few exceptions)
> >for its entire history, the State courts in the South, etc.,
> >etc., ad nauseam? If so, "then the law, sir, is an ass."
> >
>
> Justice Thomas is no one's idea of someone learned in the
> law. For the rest,
> good judges, like the ones I have worked for, really are
> learned in the law.
> That means, first of all, they know what the law is, and even
> if they don't,
> they have an instinct for it. My district judge will hand
> back something I
> wrote, say, that can't be right, give me a vague pointer, and
> 95 times out
> of 100 she's right. Second, they have judgment. They know how
> to use the
> discretion the law affords them. They have heard a lot of
> cases and know how
> cases like that work. Second, they try really hard to be
> fair, to give
> people a chance to be heard; they take pains despite pressure
> to make sure
> that even the unrepresented or those who are being bolloxed up by
> incompetent lawyers get their best say.
>
> Shane thinks that most judges are just tools of the
> capitalist class who do
> their bidding. With Chief Justice Marshall the charge is ahistorical;
> America barely had a capitalist class in those days. Besides,
> he was a
> genuinely great judge, one of the greatest to sit in any
> common law country.
> Even in the case of Justice Rehnquist, the charge is unfair.
> He just thinks
> along their lines.
>
> But most cases are not politically charged. At the district
> court and for
> the most part at the appellate court level, it's stuff like,
> what does this
> contract say? Was plaintiff really fired because she's a
> woman (or could a
> rational jury so conclude)? Is defendant entitled to a
> downward departure in
> his sentence because of extraordinary family circumstances?
> And the like.
> And by "most" cases I mean probably 95% or more of them.
> Judicial expertise
> is knowing how to handle those cases. In probably 80-90% of
> them any judge
> will come out the same way.
>
> Of course I've worked in the federal judiciary in a big city.
> I've heard
> stories about the state courts. I guess I'll find out. But I
> know from
> personal experience that there are a lot of excellent federal
> judges who do
> no one's bidding and attempt to uphold their oath to protect
> and defend the
> law and the Constitution. Or maybe I just believe that
> because I'm a tool or
> blinded by ideology myself. Of course I'm the last person to
> be able to say
> that.
>
> jks
>
>
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