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Parting Words: Politics and the Judiciary

Columnist: Scott Gerien
December, 2012 Issue

Scott Gerien
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As we bid adieu to 2012 in this year’s final issue of NorthBay biz, I also bid adieu to all of you who may have read this column over the course of the past year. Along with my colleagues at Dickenson, Peatman & Fogarty, it’s been my pleasure to offer some insights and viewpoints, along with what I hope has been some helpful legal information, to this column every month. However, it’s time now for another North Bay legal professional to share his or her views with you in 2013 and maybe provide you with a different take on the legal scene.
As I look back on the columns over the past year, I find it most interesting to examine the August column on the independent judiciary and the hearings on the Affordable Care Act (Obamacare). I wrote that column after the oral arguments in the case but before the Supreme Court issued its decision on its constitutionality. Essentially, my point was that regardless of outcome, we could rest assured that it would be a fair, well-reasoned decision under the law so long as it was being made by an independent judiciary.
Therefore, I felt somewhat vindicated when the opinion was written by Chief Justice Roberts and issued largely in favor of the Obama administration. The stories in the media all expressed shock and surprise that Chief Justice Roberts, a Bush appointee and one of the more conservative members of the Court, could issue the majority opinion upholding “Obamacare.” However, if you read the opinion, it’s well reasoned and based on the law, not politics. The Chief Justice’s opinion was a shining example of why we must continue to rely on our unelected judiciary to be the arbiter of what’s legal as opposed to what’s politically desirable.
It should also be noted that the same week in which the Court issued that decision, it also issued its decision on Arizona’s immigration law, which requires law enforcement to check the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion the person is in the country illegally. The Court unanimously ruled that this provision of the immigration law didn’t improperly conflict with federal immigration laws and couldn’t be overturned on such basis. While this was disappointing to many immigration rights groups, it again demonstrated that the justices were guided by the rule of law rather than their political persuasions.
As a lawyer, I feel these opinions have helped me prove my case on the need for an independent judiciary. While I was troubled by the attempt of both parties and the media to politicize the Supreme Court’s decision-making in the case on affordable health care, I’m even more troubled by the latest attack on the judiciary taking place in Florida this election season.
Unlike the federal courts, many states, including California, require their judges be put on the ballot every few years for a “yes” or “no” vote by the electorate. The stated purpose of these types of approval votes is to be able to remove judges who aren’t capable of upholding their judicial duties. However, this year in Florida, a political effort has been launched by certain ideological groups to convince voters to reject several Florida state Supreme Court justices whom the group has deemed “judicial activists.”
As a result of this attack, these justices have now been forced to raise money to defend themselves and their records in a campaign to keep their jobs. This is an extremely slippery slope, as these Florida justices may now be beholden to political contributors as a result of having to raise funds to fend off this referendum on their decisions.
Members of both political parties have come out against this attack on the independence of the Florida judiciary. Justice Sandra Day O’Connor has also recorded a video for the Florida State Bar on the retention battle’s significance, stating, “Judicial independence is very hard to create and establish, and easier than most people imagine to damage and destroy.”
We all learned about the system of checks and balances in elementary school and the importance of the independence of the three branches of government. What has always kept this system functional is the nonpolitical nature of the judiciary, acting as the rational parent in enforcing the rules of the house while the other two branches of government take part in their political battles. My parting statement is that we should always act to ensure we have this one branch of government that stays apolitical and enforces the rules and laws of the land; otherwise, we lose the basic principles on which this country was founded.

And now, a lawyer joke

One day in contract law class, Professor Smith asked one of his students, “Now, if you were to give someone an orange, how would you go about it?” The student replied, “Here’s an orange.” The professor replied: “No! No! Think like a lawyer!” The student thought for a minute and then said, “OK, I’d tell him, ‘I hereby grant and convey to you all and singular, my interests, rights, claim, title, and advantages of, in and to said orange, including, but not limited to, all its rind, juice, pulp, and seeds, and all rights and advantages appurtenant thereto with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with or without the pulp, juice, rind and seeds, anything herein before or hereinafter or in any deed, or deeds, instruments of whatever nature or kind whatsoever to the contrary in any way notwithstanding....”
Have a safe and happy holiday!


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