Sunday, June 14, 2009

Recognizing Politics in Justice

In the April 27, 2009 issue of the Chicago Tribune, Edward Murnane wrote an opinion piece titled 'Taking Politics Out of Justice.' He asked if there was 'a difference between republican justice and Democratic justice,' and not in a leftist way of accusing both parties of being complicit in the exploitation of working people.

Murnane instead suggests that judges should be non-partisan and Murnane scolds 'plantiffs attorney's, organized labor and others who want to exert some control over the courts.'

He ascribes to the conservative idea that there is some form of right and wrong 'above' politics.

I wholeheartedly disagree. Everything is politics. Politics is the who, what, where, why, when, and how of power. There is no 'justice' or 'morals' above or outside of this. There can be different conceptions of justice and morals, however these ideals evolve out of material circumstances, and the different interest groups battle over who will be able to implement their idea of what justice is. These different philosophies battle in the realm of material power, and the winner is declared 'justice.'

As Trotsky discussed in the essay, 'Their Morals and Ours,' the working class has different interests, and thus a different conception of justice, than the elite class.

In terms of judges, there is no way to prevent politics from playing some sort of a role. While we can eliminate the most crass forms of politics, the trading of party favors, the bribes and graft, and the politics without principle, it is absurd to think that a judge can simply enforce the law without letting their political opinions play some role. In which case, we should attempt to have judges sympathetic to labor, civil rights, and democratic and socialist ideals.

On the lower levels of the judicial branch, it is easier for a judge to enforce the law as written. A defendant either murdered someone, sold drugs or they didn't. However, the higher up the judicial ladder one climbs, the more subjective the law becomes. The vaguer and less defined certain laws become.

When political stalemate in the legislative branch prevents movement on important issues, judges are often forced to decide cases without legislative instructions. This can range from sentencing to Constitutional law. In sentencing a liberal judge might give a shorter sentence to a petty working class criminal, or in a murder case a decades long sentence instead of the death penalty. In constitutional law, the liberals on Supreme Court argue over what a document written over 200 years ago has to say about very modern issues, and will have to make arguments about how the constitution can be read in a way to legalize sodomy.

All of this becomes more relevant in light of the Sotomayor nomination.

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