The Federal Courts

...Chief among these is the altogether plausible explanation that the Supreme Court since the early sixties "enormously enlarged the number of rights upon which a federal court suit could be founded," mostly as a result of broad interpretations of the Bill of Rights, the Due Process and Equal Protection clauses of the Fourteenth Amendment, and other acts...

...and highly creative, judicial patchwork to avoid chaos...

...Nor do I see how—to use Posner's words"sharp legislative practices" (such as vote-trading) undermine legislative intent...

...tyrannous majoritarianism...

...To say that, because of this restricted field of interpretive declaration, courts make law just as do legislatures is to deny essential features in the history of our democracy...

...That is what strict constructionism properly means...

...The best summary of Chesterton available...

...Greenbaum...

...This suggests, I think, that the crucial "litmus test" for judges involves not politics but philosophy—whether a judge believes his role is fundamentally (though not exclusively) one of law-interpretation, or whether he prefers taking into his own hands the primary legislative task of creating law...

...But the caseload crisis, in Posner's view, is just a piece of the problem...

...Examining the "explosion" of court cases since 1960, when the present administrative tribulation of the courts began, he notes that whereas the number of cases filed in district courts in the previous quarter century had increased by only 30 percent, from 1960 to 1983 such cases increased by 250 percent...

...Unlike the universe of socialism, this one has souls and sin in it...

...Vote-trading is a means to an end...

...London Times Sewn soft-cover, $14.95...

...Alice Kaminsky does not have the leisure simply to mourn her son...

...One of the muggers—the one who had not wielded the knife—plea-bargained a short sentence in return for his testimony against the THE VICTIM'S SONG Alice R. Kaminsky/Prometheus Books/$19.95 William Tucker Three Outstanding New Books THE RATZINGER REPORT An Exclusive Interview On the State of the Church Joseph Cardinal Ratzinger with Vittorio Messori In this controversial, highly publicized interview, Cardinal Ratzinger speaks candidly and forcefully about the state of the Church in the post-Vatican II era...

...The history of men of letters from Solon to Norman Mailer probably says the same thing...

...Rare words, jokes, abrupt colloquialisms, anecdotes, analogies, all serve him in bringing his points home...

...Buckley makes them better than most...

...CHESTERTON l Illll l 1111 \\11111, THE AMERICAN SPECTATOR MARCH 1986 35...

...The facts are all here...

...Only a murder, and we are talking about an 18-year-old [defendant...

...In the Supreme Court, the number of applications to review appeals courts decisions rose from 870 to 2,841 over the same period...

...Such differences aside, there is much more to this book—for example, an excellent chapter on legal education that ought to be heeded in the all-too-arid environment of today's law schools...

...This, he writes, is because "the Constitution has given the federal courts broad authority with (in many places) imprecise direction, and the authority granted is thus inherently political...

...Sewn hardcover, $24.95 -----------------------------------Ignatius press Box 18990 San Francisco, CA 94118 Ignatius TITLE AMOUNT Name Street City State Zip N Please include $I.50 for postage and handling...

...Almost forty years ago, Justice Felix Frankfurter made a similar point: The vital difference between initiating policy, often involving a decided break with the past, and merely carrying out a formulated policy, indicates the relatively narrow limits within which choice is fairly open to courts and the extent to which interpreting law is inescapably making law...

...Court of Appeals for the 7th Circuit embarks on a much-needed and wide-ranging discussion of the American federal court system, moving over vast fields of contemporary law from the caseload crisis in the courts to strict constructionism and legal education...

...After all, as Supreme Court Justice Tom Clark once put it, was there ever a boy anywhere who would rather steal a wallet than steal second base...

...Thus, it has only been twenty-five years from the beginnings of the compassion crusade to the comment made in the Kaminsky case by Judge Benjamin Altman, who, when he becameexasperated with complaints from the district attorney about trial delays, finally blurted out: "This is only a murder, Mr...

...Once a book such as this wasn't necessary...

...Posner of course understands that the political decision-making that American courts assume does not mean they should be given carte blanche...

...Alice Kaminsky is a professor of English in upstate New York...

...Some 2500 years later, Kaminsky notes, Norman Mailer wrote about murder: "It means that two people are engaging in a dialogue with eternity...

...Chesterton's writings are so rich in good sense, in wit, and in plain, profound and cheerful truth that almost every page deserves a review to itself.''— The Spectator Sewn soft-cover, $12.95...

...Any delay usually works for the benefit of the defendants," Kaminsky quotes one defense attorney as saying...

...Thus, the average felony conviction in New York City now involves seven-teen court appearances by witnesses and victims, all at no cost to the defendant...

...He reminds us that the Framers plainly intended the legislative power and the judicial power to be separate, as declared respectively by Articles I and III of the Constitution...

...the words of a statute may frame underlying principles which allow the original intent to be deciphered even in changed circumstances...

...His influence has been enormous, and this volume spear-heads the great revival of interest in Chesterton's works...

...I: Orthodoxy, Heretics, Blatchford Controversies This first volume of Chesterton's writings contains three of his most influential and engaging works...

...During the struggle one mugger knifed him in the back—making sure to turn the knife so it would do William Tucker is The American Spectator's New York Correspondent and most recently author of Vigilante: The Backlash Against Crime in America (Stein and Day...

...essays, poetry, and apologetics...

...Such things are no more...

...They never anticipated that the federal judiciary, the "least dangerous branch," would in time become dangerously usurpative...

...Sewn hardcover, $24.95 COLLECTED WORKS OF G. K. CHESTERTON Vol...

...For the Kaminskys this meant making the long drive from Bingham-ton countless times...

...He believes that the "formalist" canons of construction are outdated, arguing, for example, that judges rarely look to the words of a statute...

...but Buckley is the real egalitarian, in that he hasn't forgotten, as the liberal has, that even a poor man can go to hell...

...It is far preferable to have judges engage in old-fashioned analysis—including historical and textual analysis—than to em-bark on careers of imaginative reconstruction which promise to end up in the constitutional boondocks of wishful judicial thinking...

...Posner begins by noting that the Founders intended to create a judiciary of unprecedented, but not free-wheeling, power in contrast to the more restricted English judiciary...

...indeed, such presuppositions Halfway through this wonderful book, Alice Kaminsky quotes Solon: "We will not have real justice until each person is as offended by a crime as the victim himself...

...Eric resisted—trying to protect his pianist's hands in the process...

...The two teenagers apparently became worried that he could identify them...

...Like people everywhere, she has grown up with the sense that some benevolent authority knows right from wrong and has the power and will to tear through the lies of the wicked and wreak punishment on the guilty...

...they asked...

...This book is about the life of Alice Kaminsky's son, her grief, and her experiences with the American justice system...

...It's that kind of universe...

...They did so because they feared less the power of the executive branch than the legislative branch with its potentially William Bradford Reynolds is the Assistant Attorney General for Civil Rights...

...It denies that legislation and adjudication have had different purposes, function under different conditions, and bear different responsibilities...

...California residents please add 61/2% sales tax...

...Endless trial delays are one of the favorites...

...As Solon had hoped, we lived in a time when society's delegates—the judiciary—were willing to play out their admittedly histrionic role of righteous indignation...

...But Lindbergh was living in a time when the justice system was willing to express the victim's anger...

...We are given a wide variety of highly readable and enjoyable selections from his noels...

...Who are these nameless, faceless victims we are being asked to cry over...

...Suppose, as is probable, that some judges or their staffs are derelict in their research duties or deficient (or perhaps excessive) in imaginative intelligence...

...In the courts of appeals, similarly, the number of signed opinions between 1960 and 1983 increased by 183 percent...

...Case-load is not necessarily workload, however, so it is instructive that a comparison of another benchmark—the number of trials completed between 1960 and 1983—shows a still enormous increase of 110 percent...

...But such a thing no longer exists for us...

...Defense lawyers operate under the self-proclaimed obligation to use every cheap trick in the book to get their clients off the hook...

...Sewn soft-cover, $9.95 — Joseph Cardinal Ratzinger A CHESTERTON ANTHOLOGY Edited by P. J: Kavanagh G. K. Chesterton is one of the most widely quoted 20th century writers...

...What has happened is that the killer is becoming a little more possible, a little more ready to love someone...

...This does not mean, of course, that whole bodies of case law should necessarily be ignored or overturned...

...About twenty-five years ago the hired actors got tired of doing the show...

...Such legislation, whether of the public interest or special interest variety—a distinction Posner stresses—is not only declared as official but is, on its face, official as declared...

...But judges who look to case law without due regard for the original statute's language and legislative history are simply misguided in doing so...

...instead, they look to the body of case law that has grown up around a statute...

...He insists on testing political claims against the universe he inhabits, and the constant In The Federal Courts Crisis and Reform, Judge Richard Posner of the U.S...

...efflorescence of his mind shows that this is a large, unpredictable, and often delightful universe...

...Critics to the contrary, Buckley is the opposite of an ideologue...

...Ratzinger's forthright, measured criticism of certain forms of liberation theology, and his removal of the imprimatur from two widely read books in the U.S., are well known...

...This deserves to become the standard introduction to Chesterton...

...Posner is perhaps best known for his sociological-utilitarian approach to the law—an approach that is rigorously empirical (some would say reductionistic) and deeply influenced by economic thinking (Posner is a close colleague of economist and Nobel laureate George Stigler at the University of Chicago), and for which he has been criticized both by conservatives, such as Judge Robert Bork, and by contemporary liberals, who can be expected to dislike anything that is, so to speak, metaphysically appreciative of the free market...

...Henry Adams once remarked that the history of American Presidents from George Washington to U. S. Grant disproved Darwin's theory of evolution...

...Aren't they individuals as well...

...a prolific opinion-writer, he is widely regarded as one of the most industrious minds on tl}e federal bench...

...Like other Americans, she has been forced to rein-vent the justice system for herself—raising a banshee wail loud enough to wake the whole society...

...Posner admits that the causes of the caseload growth are unclear, but he does hazard a few reasonable guesses...

...Strict constructionism, he says, wrongly assumes legislative intent where legislative compromises and vote-trading have occurred, effectively obscuring any clear and straightforward intent...

...Having earlier criticized the predominantly liberal tendency to equate the interpretation of laws with their creation, Posner departs from the traditional conservative view as well by criticizing strict constructionism, which he defines as "sticking close to dictionary meanings" even where changed circumstances over time render the literal words of a statute incoherent...

...Where there is a tough fact pattern [a nice term, no?], the more time that lapses, the more witnesses will contradict themselves...

...Posner does not give enough credit to the philosophical presuppositions and values which subtly shape the way in which one approaches historical evidence...

...Judicial power is necessarily limited, he says, for "not only must the judge wait for a case to come up to him before he can lay down a rule, but with cases coming up to him in random order hewill find it difficult to establish an agenda for political action...

...The ambit of Posner's expertise is not surprising...

...His role is inherently one of reacting rather than initiating...

...CJ the most damage...

...Further political involvement by the courts is caused by "the interactions between . . . federal law and the law of fifty quasi-sovereign states [which] have made many fields of American law immensely complex, with a multitude of ill-fitting seams that require continuous...

...This definition, I believe, is too narrow...

...In eschewing the traditional canons of construction—such as the rule that one should start with the language of a statute, or that construction is unnecessary if the statute's language is plain—Posner favors "an imaginative reconstruction" of legislators' motives rather than legislative intent embodied in the language of the statute and its legislative history...

...THE KATIINGER UNIT A 1 \l -I1\I\ I I\ 1111\ II N I I 0111 NIM,1Y- .Ir.M G.K...

...Posner does not restrict his inquiry to substantive issues...

...In any case, that theory is not as central to this book as it is to many of Posner's other writings, so I will leave judgment to others...

...It must be clearly stated that a real reform of the Church presupposes an unequixocal turning away from the erroneous paths whose catastrophic consequences are already incontestable...

...Few statutes are ambiguous to the point of sheer legal relativism...

...Are they really that important...

...As he points out: "The biggest challenge that the federal courts . . . confront and will always confront is how to interpret statutes and the Constitution...

...the end, however reached, and whatever the legislators' motives, is the legislation to which a public representative is willing to stake his name, job, and reputation—the legislative intent...

...Cardinal Ratzinger addresses a variety of critical issues in the Church, making clear what he thinks the problems are—and their solutions...

...On September 13, 1980, her talented only son, Eric, age 22, was robbed and then stabbed to death by two Dominican teenagers on a subway platform in New York City...

...In our tripartite and bicameral legislative system, in which the parties have moreover become increasingly weak and decentralized, laws emerging from Congress tend to be "radically incomplete...

...Everything in it matters and finally coheres, and it's up to us to make such connections as we can...

...often determine the very criteria used to decide what counts as evidence, and what weight to assign it...

...The liberal who sees in Buckley only a snob may doubt that a rich man can enter the kingdom of heaven...

...Who will arbitrate between these different judges and their claims...

...Through shameless misreadings of the Constitution, plus a denuding of the once sacred rights of the jury, Americans now find themselves underthe domination of a smug legal fraternity that sees criminal justice as—in the exasperated words of Chief Justice Warren Burger---"nothing more than a sporting contest...

...In this extensive, wide-ranging interview...

...Don't they deserve some respect, perhaps even a little sympathy and compassion...

...Suppose two equally capable judges come to diametrically opposing conclusions on the basis of their imaginative reconstruction...

...Anne Morrow Lindbergh, writing about the kidnapping and murder of her son, for example, spoke with a kind of sleepwalking horror that we would expect from the families of murder victims...

...to argue so, I believe, is to confuse ends and means...

...THE FEDERAL COURTS: CRISIS AND REFORM Richard A. Posner/Harvard University Press/$25.00 William Bradford Reynolds 34 THE AMERICAN SPECTATOR MARCH 1986 I am less confident than Posner that a judge, no matter how learned or wise, can ever engage in an objective task of "imaginative reconstruction," as he understands it...

...And what about these flesh-and-blood people who stand before us, the criminal defendants...

...I once heard him tell a story he heard from Gene Kelly about being aboard a plane that went into a terrifying nosedive: The story turns up in a column about KAL 007...

...They tried to throw him onto the subway tracks...

...Posner condemns judicial activism ("We must clothe the naked beast") but acknowledges that, to a partial but inevitable degree in our political system, judging is inherently political...

...This substantial work shows the many sides of Chesterton's mind...

...And whether one agrees or disagrees with so original a thinker, Judge Posner and his ideas ought to provoke general reflection about the law...

...In certain cases, the American judge is left to decide political questions, but the basis on which he does so—that is, whether his judicial philosophy permits the usurpation of legislative prerogatives—is decisive in separating the judicial wheat from the activist chaff...