My Own Pie

Libertarian Thoughts from Renaissance Guy

Judging a Judge

with one comment

     After reading comments from reader Scott Erb, I have decided to post some thoughts on what I would say to Judge Nina Gershon, the federal judge who recently ruled that the United States Congress was acting unconstitutionally when it decided not to give funds to ACORN, the community organization group that has made headlines over the last few years.

     If I were to meet Judge Gershon, I would treat her courteously and would show her the respect to which her office entitles her.  I would most likely listen more than talk, since she certainly knows more about the law (and perhpas other things) than I do. 

     If, however, she did ask me what I thought of her ruling, I would summon up the courage to say, “Your Honor, I have a completely opposite view from you regarding the proper way to interpret the Constitution and also regarding the role of the judiciary.  Therefore, I do not think that your ruling was correct.  However, given your approach to the Constitution and to the judicial branch’s role, I think you made a very sound ruling.

     “Then again, you could make just about any ruling you want, based on the way the judicial branch has redefined its role and re-envisioned the Constitution for the last 35 years or more.  All you ahve to do is determine how you want to rule and then say that something in the case “is equivalent to” or “amounts to” something that is clearly unconstitutional.  Perhaps you are right in saying that Congress’s defunding bill amounts to a bill of attainder, but I think not.  I would think that a bill of attainder would be an act that declared an entity guilty of crimes and that deprived them of property or liberty (or in severe cases, life) as a punishment.”

     Of course, she would probably already have interrupted me, but if not, I would say, “Your ruling strikes me as being just like many other rulings in recent times in which the judicial branch has set itself above the other two branches, rather than being equal to and in balance with  them, as the Constitution outlines.  It also strikes me as an example of writing laws from the bench, rather than allowing the Congress to write laws, as they are given power to do in the Constitution.”

     Then I would shut up and let her tell me why she thinks I am wrong.  I would probably learn a lot, but I doubt that I would change my mind.

     If I had the chance, I would ask her what I think is a simple question.  I would want to ask why she accepts the authority of Congress to give out money but rejects their authority to withhold money.  It seems to me that you cannot have the first without the second.  She would, I guess, have a good and interesting answer.


Written by ambrosianideas

December 17, 2009 at 7:14 am

One Response

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  1. You really ought to have read the decision first. The Judge doesn’t make the statement that the government has to pay ACORN anything, the injunction was based on the fact that there are administrative procedures in place, and that those administrative procedures must be followed, even if there are videos on youtube.

    Gershon said in her ruling that ACORN had raised a “fundamental issue of separation of powers. They have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.”

    Personal Failure

    December 17, 2009 at 2:30 pm

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