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Judicial Bias and Na?ve and not-so- Na?ve People

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Judicial Bias and Na?ve and not-so- Na?ve People
« on: January 26, 2013, 11:49:23 AM »

Judicial Bias and Na?ve and not-so- Na?ve People

Written by Tim Heydon




Na?ve people  tend to believe that judges are even handed and that handing over to them the adjudication of  laws  on matters of social, cultural or religious importance,  for example in the European Court of Human Rights or the American Supreme Court will mean that there will be a fair and neutral outcome.  Laws on ?Human Rights?  for example  are absolute, they think,  and it only needs a judge, who will by definition be impartial, to draw necessary, inevitable conclusions  about how they should be applied in any given circumstances.
 
Other, especially politically motivated people, are far from na?ve. They know that rather than bringing their mighty intellects and legal training to bear to arrive at conclusions based on the  intentions of those who made the laws in the first place,  what happens very often is pretty much the reverse. ?Activist? judges come to conclusions   according to their personal preferences and then look for reasons to justify these already-arrived at conclusion,  plucking them effectively out of thin air.

This is especially the case where judges are unhindered by precedent and where the issues they are asked to pronounce on are ?broad brush ?, top --down concepts like ?Human Rights? or written constitutions.
 
Judges Overturning Democracy
 
These not-so-na?ve people very often like this procedure very much because it gives them the opportunity to appoint judges with political views favouring their own. These judges will then hand down judgements  having  wide-ranging consequences which these knowing, scheming people would never have been able to bring about through the democratic process.   Judges are used by them as a device for overturning   majoritarian views and making sure that the direction of social change in society is pointed according to their preferences.  This is one reason why rulings of The European Court of Human Rights  so often diverge wildly and laughably from  public opinion in Britain.
 
Illustating  Political Bias.  The Case of Robert H. Bork
 
That very often it is not the written words of laws or constitutions that matter but the opinions of the judges who are asked to interpret them and the manipulations of the politicians to ensure that their favoured opinions are represented  on judicial benches are nowhere better  illustrated than in the case of Robert H Bork. The attack on Bork?s candidature for the American Supreme Court by the American left was so vicious that it coined a new word:
 
To ?Bork?
 
??bork? Pronunciation: /ˈbɔːk/  Definition of bork verb [with object] US informal; obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them: ?We?re going to bork him?, warned a feminist (as noun borking) is fear of borking scaring people from public office?
 
Origin: 1980s: from the name of Robert Bork (born 1927), an American judge whose nomination to the Supreme Court (1987) was rejected following unfavourable publicity for his allegedly extreme views.?
 
The Vilification of Robert H Bork
 
December 2012 saw the death of  Bork.  Bork was a Yale Law School Professor who served as Solicitor General, Acting Attorney General and as a judge of the United States Court of Appeals for the District of Columbia.
 
President Reagan nominated him for the US Supreme Court, but his nomination was rejected by the US Senate in an infamous episode.  Reagan?s liberal political  opponents, chief among them Ted Kennedy,  vilified  Bork. In a scurrilous speech, Kennedy said that  Bork?s America would be
 
'[A] land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution,  writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is?and is often the only?protector of the individual rights that are the heart of our democracy ... ?
 
Bork responded, "There was not a line in that speech that was accurate." Nevertheless, as the Economist remarked in an obituary of Kennedy, Bork may well have been correct, "but it worked."  Fuel was added to the fire of Kennedy?s distortions by campaigns by various leftist pressure groups and a series of TV ads, including one narrated by Gregory Peck which branded Bork as an extremist.
 
Bork?s ?Crime?
 
So what was Bork?s ?crime? that attracted this tsunami of hostility from American ?Liberals?  (ie leftists)?
 
Bork stance was that when interpreting the US Constitution, Supreme Court Justices should  be guided by the framers' original understanding of it, because if they did not they must necessarily look inside themselves and find merely subjective answers. "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." He said.  It was not the function of Supreme Court Justices to "legislate from the bench," ie invent law according to their personal prejudices but to frame "neutral principles?.
 
This might seem a very reasonable, sensible  position to take, but it did not suit the left in the US, which wanted a Supreme Court stuffed with Justices who would  continue to hand down rulings which favoured their opinions, interpreting the US Constitution  accordngly.
 
The US Supreme Court as an Agent of Liberalism
 
As Bork related in the Chapter   headed, ?The Supreme Court as an Agent of Liberalism ? in his  Book, ?Slouching towards Gomorrah? (a New York Times best seller):-
 
?It is arguable that   the American Judiciary- the Supreme Court, abetted by the lower federal courts and many state courts- is the single most powerful force shaping our culture?.
 
?In its cultural ?political role, the Court almost invariably advances the agenda of modern liberalism. That is to say, the Justices, or a majority of them, are responsible in no small measure for the spread of both radical individualism and radical egalitarianism?? When liberty and equality come into conflict, the Court almost always prefers equality, even in its modern, corrupt, egalitarian form.
 
?This is a philosophy, or mood , that cannot be derived from the Constitution. It is approved however by..the intellectual class .  That class has distinctive attitudes well to the left of the American center.?
 
The intellectual class is powerful because it controls the dissemination of facts, whether true or false  and can make and unmake reputations.  Judges belong to that class and so absorb its viewpoints and predilections naturally.
 
Bork goes on,
 
?It is instructive that in the United Kingdom, the primary proponents of adopting a written constitution and the power of judicial review of legislation are the Labor Party and the intellectuals. That development would shift a great deal of power from the British electorate to judges who would better reflect the leftish agendas of labor and intellectuals. Cultural and political victories would then be achieved in the courts that could not be achieved in Parliament.  The British exponents of judicial supremacy have learned from the American experience.?
 
Of course, the same remarks apply to the European Court of Human Rights.
 
The European Court of Human Rights ? our Supreme Court
 
By virtue of politically biased ?mission creep? this court has succeeded in establishing itself as effectively the European Supreme Court, intruding  into the minutiae of our lives in a way never envisaged by those who originally signed the European Convention of Human Rights, which was designed to counter only such gross crimes as genocide.
 
The story of Robert H Bork demonstrates most clearly that when it comes to the interpretation of the law, its original intentions and plain meaning are less important than the political prejudices of the judges who interpret it, especially when they are uninhibited by precedent.
 
No wonder that the left, which assumes that it will be able to control the selection of those judges has been the case in the USA, loves the European Court of  Human Rights and New Labour can boast that enshrining Human Rights into domestic law with the HRA in 1997 was one of its proudest achievements.
 
The left also loves  the nation-destroying aspect of supra-national  institutions like this court because it suits its New World Order agenda of World Government.
 
A British Bill of Rights?
 
Would a British Bill of Rights, adjudicated by British judges, be a better bet than the European arrangements?  One would have to be very wary here.
 
True, our Common Law traditions and precedent hinder judges?  ?law making?  to a degree unknown in Europe.  Nevertheless, a Bill of Rights would be a broad-brush measure of concepts allowing judges free reign to interpret, very like the European court.
 
Our judges are selected according to their politically correct credentials. They go on courses which instill them with reverence for racial and cultural diversity, radical equality and the whole gamut of Cultural Marxism.  Why trade rule by leftist European judges for rule by British ones?
 
We don?t need a new British Bill of Rights.   We should simply rely, as we always have done, on the common sense and decency of the British people (than which there are none better) as expressed in its traditionally Christian attitudes, ancient common law which grew out of the practices of the people and other laws which should be enacted by a genuinely representative system of government.
 
This, and not rule by politically biased  judges deliberatlng on ?Human Rights? and so forth handed down from  on high, would be genuine democracy and would satisfy our conception of fairness and so justice.
 
Anything else would be an insult to the British people.


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