Brer Rabbit meets a Tar Babyretold by S. E. Schlosser
Well now, that rascal Brer Fox hated Brer Rabbit on account of he was always cutting capers and bossing everyone around. So Brer Fox decided to capture and kill Brer Rabbit if it was the last thing he ever did! He thought and he thought until he came up with a plan. He would make a tar baby! Brer Fox went and got some tar and he mixed it with some turpentine and he sculpted it into the figure of a cute little baby. Then he stuck a hat on the Tar Baby and sat her in the middle of the road.
Brer Fox hid himself in the bushes near the road and he waited and waited for Brer Rabbit to come along. At long last, he heard someone whistling and chuckling to himself, and he knew that Brer Rabbit was coming up over the hill. As he reached the top, Brer Rabbit spotted the cute little Tar Baby. Brer Rabbit was surprised. He stopped and stared at this strange creature. He had never seen anything like it before!
"Good Morning," said Brer Rabbit, doffing his hat. "Nice weather we're having."
The Tar Baby said nothing. Brer Fox laid low and grinned an evil grin.
Brer Rabbit tried again. "And how are you feeling this fine day?"
The Tar Baby, she said nothing. Brer Fox grinned an evil grin and lay low in the bushes.
Brer Rabbit frowned. This strange creature was not very polite. It was beginning to make him mad.
"Ahem!" said Brer Rabbit loudly, wondering if the Tar Baby were deaf. "I said 'HOW ARE YOU THIS MORNING?"
The Tar Baby said nothing. Brer Fox curled up into a ball to hide his laugher. His plan was working perfectly!
"Are you deaf or just rude?" demanded Brer Rabbit, losing his temper. "I can't stand folks that are stuck up! You take off that hat and say 'Howdy-do' or I'm going to give you such a lickin'!"
The Tar Baby just sat in the middle of the road looking as cute as a button and saying nothing at all. Brer Fox rolled over and over under the bushes, fit to bust because he didn't dare laugh out loud.
"I'll learn ya!" Brer Rabbit yelled. He took a swing at the cute little Tar Baby and his paw got stuck in the tar.
"Lemme go or I'll hit you again," shouted Brer Rabbit. The Tar Baby, she said nothing.
"Fine! Be that way," said Brer Rabbit, swinging at the Tar Baby with his free paw. Now both his paws were stuck in the tar, and Brer Fox danced with glee behind the bushes.
"I'm gonna kick the stuffin' out of you," Brer Rabbit said and pounced on the Tar Baby with both feet. They sank deep into the Tar Baby. Brer Rabbit was so furious he head-butted the cute little creature until he was completely covered with tar and unable to move.
Brer Fox leapt out of the bushes and strolled over to Brer Rabbit. "Well, well, what have we here?" he asked, grinning an evil grin.
Brer Rabbit gulped. He was stuck fast. He did some fast thinking while Brer Fox rolled about on the road, laughing himself sick over Brer Rabbit's dilemma.
"I've got you this time, Brer Rabbit," said Brer Fox, jumping up and shaking off the dust.
"You've sassed me for the very last time. Now I wonder what I should do with you?"
Brer Rabbit's eyes got very large. "Oh please Brer Fox, whatever you do, please don't throw me into the briar patch."
"Maybe I should roast you over a fire and eat you," mused Brer Fox. "No, that's too much trouble. Maybe I'll hang you instead."
"Roast me! Hang me! Do whatever you please," said Brer Rabbit. "Only please, Brer Fox, please don't throw me into the briar patch."
"If I'm going to hang you, I'll need some string," said Brer Fox. "And I don't have any string handy. But the stream's not far away, so maybe I'll drown you instead."
"Drown me! Roast me! Hang me! Do whatever you please," said Brer Rabbit. "Only please, Brer Fox, please don't throw me into the briar patch."
"The briar patch, eh?" said Brer Fox. "What a wonderful idea! You'll be torn into little pieces!"
Grabbing up the tar-covered rabbit, Brer Fox swung him around and around and then flung him head over heels into the briar patch. Brer Rabbit let out such a scream as he fell that all of Brer Fox's fur stood straight up. Brer Rabbit fell into the briar bushes with a crash and a mighty thump. Then there was silence.
Brer Fox cocked one ear toward the briar patch, listening for whimpers of pain. But he heard nothing. Brer Fox cocked the other ear toward the briar patch, listening for Brer Rabbit's death rattle. He heard nothing.
Then Brer Fox heard someone calling his name. He turned around and looked up the hill. Brer Rabbit was sitting on a log combing the tar out of his fur with a wood chip and looking smug.
"I was bred and born in the briar patch, Brer Fox," he called. "Born and bred in the briar patch."
And Brer Rabbit skipped away as merry as a cricket while Brer Fox ground his teeth in rage and went home.
Thursday, June 21, 2007
Sunday, June 17, 2007
BROKEN TRUST- CORZINE USING RABNER NOM. TO PLAY SENATE, GILL
The manner of nominating AG Rabner to be the next State Chief Justice allows the State's Executive Branch, i.e. Governor Corzine, to usurp the State Constitution's delegation of power and duty to the legislature, i.e the Senate's check and balance duty to advise as well as consent.
THE NEW JERSEY CONSITUTION REQUIRES ADVICE AND CONSENT
The New Jersey Constitution lists ten current instances that reguire a Governor to "nominate and appoint, with the advice and consent of the Senate... ." In terms of Justices and Judges the Constitution (Article 6, Section 6, Paragraph 1) demands "The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality;"
Nothing in the Constitution, however, states the procedure by which the Governor "nominates and appoints" and the Senate "advises and consents". But, both the plain text and continuous historical practice identify "Senatorial Courtesy" to be the appropriate procedure.
THE PLAIN TEXT MAKES ADVICE THE PRECONDITION TO NOMINATION
The precondition for Governor Corzine's nomination of AG Rabner is advice from the Senate about whether to nominate Rabner. In general, one gives advice by giving an opinion about a future action. What good is it to advise a person not to jump off a bridge after the jump? Or, more to the point, what good is it for the Senate to advise the Governor about Rabner's nomination once he has been nominated? Once Governor Corzine nominated Rabner to be the next Chief Justice the next step is to consent to or not consent to the nomination.
DEEPLY ROOTED PRINCIPLE VALIDATES THE PLAIN TEXT
Senatorial Courtesy is "closely related to the nominations process. ... At least seven [U.S.] Supreme Court nominations have failed to be confirmed partly on the basis of deference to the nominee's home-state senators." The practice "... was born in the very first [U.S.] Congress and continues today." "By the 1940's 'Senatorial Courtesy' was formally institutionalized through the development of the so-called 'blue slip procedure.' ... it is understood that failure to return the blue slip amounts to a de facto invocation of senatorial courtesy that will prevent committee hearings on the nominee and thereby block the nomination."
SENATORIAL COURTESY IN NJ
In New Jersey Senatorial Courtesy ensures that senators largely control the identifiction of candidates for the bench. Even if the Governor does not rely outright on the senators to identify candidates for particular appointments, the practice ensures that the Governor typically asks the approval of the Senators in question well in advance of making a formal nomination.
THE STATEGY TO CRIPPLE ADVICE AND CONSENT
Governor Corzine has quietly, but persistently, sought to eviserate the checks and balances of the State Constitution "advice" requirement. Until now the job of identifing potential judicial candidates has fallen largely to the State's Senators. One purpose is to assure at least some local control from the encroachment of a larger government body. Accordingly, the first step was Governor Corzine's largely unoticed "Order establishing a Judicial Advisory panel that will be charged with evaluating judicial candidates."
The second step is "a death by a thousand cuts as exempliied by the nomination of Robert A. Bianchi followed by the nomination of AG Rabner.
The third step is "sit back and watch." Corzine has sought to create Brand Rabner as a brand with broad popular appeal regardsless of his qualifications to be Chief Justice. Smart working class guy with best education (Princeton and Harvard as opposed to Rutgers and Yale), Crime fighter (Assistant U.S. Attorney), and apolitical (not connected and couldn't get a judicial appointment). Thus, the last minute nomination of Rabner without the advice of the Senate receives popular support. Add in that Senatorial Courtesy (like Executive Courtesy or the pocket veto) is easily misunderstood and thus an easy target for those who use demagoguery to oppose it. Then bait a sometimes controversial but pro-active Senator to enforce the "Advice Clause" - and BOOM- the wheels spin.
Some call it arcane - although its is as arcane as the Constitution is musty. Some call it blackmail without offering any hard facts that lead to the conclusion. Some simply jeer. And some, as with the sham appointment of the disastrous Judge Marianne Espinosa Murphy, seek to circumvent it.
SENATORIAL COURTESY PROTECTS THE CONSTITUTION
How then, does the Senate keep the Executive Branch from commandeering the Constitutional powers and duties expressly assigned by the Constitution to the Legislative Branch? Holding confirmation hearings only absolves the usurper and seeks to legitimize the usurpation. Holding confirmation proceedings that lead to a predetermined "no" vote are a waste of time and money. And, using a sham to fight a sham only further detracts from public confidence and faith in the government's integrity.
Senatorial courtesy solves these problems as the nomination is void and never acted upon. There are no Judiciary Committee hearings and thus no vote. If Governor Corzine wants his candidate appointed he must respect the Constitution by seeking the advice of the appropriate Senators prior to the nomination. At times when the Senate is in the hands of mostly corrupt or self-serving politicans Senatorial Courtesy gives the Constitution and the integrity of the Judiciary the utmost protetion. For like Sodom and Gomorrah only one person need speak up to save it.
THE NEW JERSEY CONSITUTION REQUIRES ADVICE AND CONSENT
The New Jersey Constitution lists ten current instances that reguire a Governor to "nominate and appoint, with the advice and consent of the Senate... ." In terms of Justices and Judges the Constitution (Article 6, Section 6, Paragraph 1) demands "The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality;"
Nothing in the Constitution, however, states the procedure by which the Governor "nominates and appoints" and the Senate "advises and consents". But, both the plain text and continuous historical practice identify "Senatorial Courtesy" to be the appropriate procedure.
THE PLAIN TEXT MAKES ADVICE THE PRECONDITION TO NOMINATION
The precondition for Governor Corzine's nomination of AG Rabner is advice from the Senate about whether to nominate Rabner. In general, one gives advice by giving an opinion about a future action. What good is it to advise a person not to jump off a bridge after the jump? Or, more to the point, what good is it for the Senate to advise the Governor about Rabner's nomination once he has been nominated? Once Governor Corzine nominated Rabner to be the next Chief Justice the next step is to consent to or not consent to the nomination.
DEEPLY ROOTED PRINCIPLE VALIDATES THE PLAIN TEXT
Senatorial Courtesy is "closely related to the nominations process. ... At least seven [U.S.] Supreme Court nominations have failed to be confirmed partly on the basis of deference to the nominee's home-state senators." The practice "... was born in the very first [U.S.] Congress and continues today." "By the 1940's 'Senatorial Courtesy' was formally institutionalized through the development of the so-called 'blue slip procedure.' ... it is understood that failure to return the blue slip amounts to a de facto invocation of senatorial courtesy that will prevent committee hearings on the nominee and thereby block the nomination."
SENATORIAL COURTESY IN NJ
In New Jersey Senatorial Courtesy ensures that senators largely control the identifiction of candidates for the bench. Even if the Governor does not rely outright on the senators to identify candidates for particular appointments, the practice ensures that the Governor typically asks the approval of the Senators in question well in advance of making a formal nomination.
THE STATEGY TO CRIPPLE ADVICE AND CONSENT
Governor Corzine has quietly, but persistently, sought to eviserate the checks and balances of the State Constitution "advice" requirement. Until now the job of identifing potential judicial candidates has fallen largely to the State's Senators. One purpose is to assure at least some local control from the encroachment of a larger government body. Accordingly, the first step was Governor Corzine's largely unoticed "Order establishing a Judicial Advisory panel that will be charged with evaluating judicial candidates."
The second step is "a death by a thousand cuts as exempliied by the nomination of Robert A. Bianchi followed by the nomination of AG Rabner.
The third step is "sit back and watch." Corzine has sought to create Brand Rabner as a brand with broad popular appeal regardsless of his qualifications to be Chief Justice. Smart working class guy with best education (Princeton and Harvard as opposed to Rutgers and Yale), Crime fighter (Assistant U.S. Attorney), and apolitical (not connected and couldn't get a judicial appointment). Thus, the last minute nomination of Rabner without the advice of the Senate receives popular support. Add in that Senatorial Courtesy (like Executive Courtesy or the pocket veto) is easily misunderstood and thus an easy target for those who use demagoguery to oppose it. Then bait a sometimes controversial but pro-active Senator to enforce the "Advice Clause" - and BOOM- the wheels spin.
Some call it arcane - although its is as arcane as the Constitution is musty. Some call it blackmail without offering any hard facts that lead to the conclusion. Some simply jeer. And some, as with the sham appointment of the disastrous Judge Marianne Espinosa Murphy, seek to circumvent it.
SENATORIAL COURTESY PROTECTS THE CONSTITUTION
How then, does the Senate keep the Executive Branch from commandeering the Constitutional powers and duties expressly assigned by the Constitution to the Legislative Branch? Holding confirmation hearings only absolves the usurper and seeks to legitimize the usurpation. Holding confirmation proceedings that lead to a predetermined "no" vote are a waste of time and money. And, using a sham to fight a sham only further detracts from public confidence and faith in the government's integrity.
Senatorial courtesy solves these problems as the nomination is void and never acted upon. There are no Judiciary Committee hearings and thus no vote. If Governor Corzine wants his candidate appointed he must respect the Constitution by seeking the advice of the appropriate Senators prior to the nomination. At times when the Senate is in the hands of mostly corrupt or self-serving politicans Senatorial Courtesy gives the Constitution and the integrity of the Judiciary the utmost protetion. For like Sodom and Gomorrah only one person need speak up to save it.
Thursday, June 14, 2007
FUNNY THINGS ARE HAPPENING ON THE WAY TO RABNER'S CONFIRMATION
SOMETHING FAMILIAR
On the one hand, Governor Corzine's office leaked the nomination of Rabner’s appointment, refused to comment on the leak, and more than several days later made the formal announcement at a press conference. THAT'S OK.
On the other hand, Newsday reports: I have no comment,’ Gill said repeatedly as she arrived at a Senate Commerce Committee meeting in the State House Annex. ... When approached by reporters as she took her seat to chair the hearing, Gill had legislative security staffers keep reporters away." THAT’S NOT OK?
The only difference seems to be the paparazzi couldn’t stalk the Governor.
Ya know, if the press really cared about the nomination they would actually investigate and report on the criteria for being a chief justice and how or how not AG Rabner fills those criteria. Small things even. Like a review of published and unpublished opinions. Oh, Rabner has never been a judge so there are no opinions. Well, how about scholarly articles then. Oh, none of those either. Well how about his feelings concerning the Ethics Advisory Panel's opinion from the secret Corzine-Katz hearing using secret depositions about secret emails.... He did go to Yale Law School. Not Yale?
SOMETHING PECULIAR
A Home News Tribune report concerning U.S. Attorney Christies’ rant is just mindboggling. The best is the statement "Christie said New Jersey has no better person for the high court." Didn't know the U.S. Attorney had a Supreme Court selection process, committee or candidate list. Maybe he does know. Warrantless searches – billions of phone conversations and emails intercepted - monsterous web crawlers - hey, ya never know.
Second best is "Christie had also likened Senate Judiciary Committee Chairman John Adler, D-Camden, to 'a third-rank bureaucrat' because he had said he would not schedule a hearing for Rabner without the OK from Gill."
Go Get’em; hit them with the nonpartisan "nuclear option". P.S. Senator Adler went to Harvard too.
SOMETHING FOR EVERYONE
June 14, 2007 Star-Ledger article states:" Gill has refused to say why she is opposed to Rabner's nomination, although her colleagues said she feels that Corzine did not pay enough deference to the Senators by choosing Rabner without first consulting his home-county delegation.
June 13, 2007 Star-Ledger article states "Sen. Nia Gill (D-Essex), using a traditional courtesy extended to senators representing the home county of nominees, has not signed off on Rabner's nomination to lead the New Jersey Supreme Court and has raised questions about his inexperience in civil law and the rush to confirm him, the sources said yesterday."
Those are distinctions with a difference. Remember?
Wednesday, June 13, 2007
NO MORE VERNIEROS: SENATORS GILL & RICE SHOW COURAGE BY GIVING CORZINE AND RABNER HELL
The coverage of Stu Rabner's credentials to be New Jersey's next Chief Justice has been dismal. It would seem some Democrats are all afraid they will appear before the next one and some Republican's can't figure out what one does.
So, for all the right reasons Senators Gill and Rice have said enough is enough.
Take notice, neither Corzine nor Rabner have talked about racial profiling being at its high point. Neither Corzine nor Rabner have talked about his limited eperience in civil practice and dearth of knowledge and experience appellate practice.Neither Corzine nor Rabner have talked about his obsecuring crime with speech. And be assured the list gets longer.
So, hats off to the Senators for critical thinking and positive action. Thanks for working to assure the next Justice is not Peter Verniero.
So, for all the right reasons Senators Gill and Rice have said enough is enough.
Take notice, neither Corzine nor Rabner have talked about racial profiling being at its high point. Neither Corzine nor Rabner have talked about his limited eperience in civil practice and dearth of knowledge and experience appellate practice.Neither Corzine nor Rabner have talked about his obsecuring crime with speech. And be assured the list gets longer.
So, hats off to the Senators for critical thinking and positive action. Thanks for working to assure the next Justice is not Peter Verniero.
Tuesday, June 12, 2007
BROKEN TRUST: IS AG RABNER A MECHANIC WHO WANTS TO BE AN ENGINEER, PART 3.
If AG Rabner were a trained and experienced auto mechanic would you fly on an airplane he designed?
We trust auto mechanics to fix our cars but require automotive engineers to design them. We trust nurses to administer day to day hospital care but require doctors determine the health care given. And, we go to bank tellers to deposit and withdraw money but require financial managers to preserve the money we leave in the bank. It is no different with the court. A trial attorney, including prosecutor Rabner, or a trial judge, like the nurse, handle the day to day administration of the law in individual cases. Their job is applying the law as settled by the appellate or Supreme Court. They are not litigators or appellate judges. They do not resolve questions of law - they do not say what the law is. That is really the ultimate role of
the Supreme Court.
Stu Rabner is a trial lawyer. His job has been to act as the U.S. Government's advocate in administering Federal law. That experience may well qualify him to be a trial court judge either in the federal district court or in the New Jersey Superior Court. Even at the Superior Court level, however, it is uncertain the AG is an appropriate choice.
Assume for a moment you are accused of some awful crime. AG Rabner may well be prepared to prosecute against you, defend you, or decide your case. But would want him to advocate for you, defend you, or decide your case in a civil matter. If he were to be your lawyer he would be a neophyte facing experienced trial attorneys. As a new judge he would be continually challenged by a diversity of civil actions, rules and standards that bear little relation to those in a criminal court. And, he would face the rich and the powerful corporations with their well heeled outside counsel and litigation public relations firms. If they were your opponents and your home, job and / or family life were at stake would you want AG Rabner to be the trial lawyer who represents you or the judge who decides your case. In short would you want the auto mechanic to repair the airplane? Do you want to be his on the job training?
Taking the analysis one step further, ask your self, would you want the best auto mechanic in the world to design the airplane you were flying on? Because in making the AG the Chief Justice of the Supreme Court you are not just asking the mechanic to design the airplane - you are asking him to lead the design team.
We trust auto mechanics to fix our cars but require automotive engineers to design them. We trust nurses to administer day to day hospital care but require doctors determine the health care given. And, we go to bank tellers to deposit and withdraw money but require financial managers to preserve the money we leave in the bank. It is no different with the court. A trial attorney, including prosecutor Rabner, or a trial judge, like the nurse, handle the day to day administration of the law in individual cases. Their job is applying the law as settled by the appellate or Supreme Court. They are not litigators or appellate judges. They do not resolve questions of law - they do not say what the law is. That is really the ultimate role of
the Supreme Court.
Stu Rabner is a trial lawyer. His job has been to act as the U.S. Government's advocate in administering Federal law. That experience may well qualify him to be a trial court judge either in the federal district court or in the New Jersey Superior Court. Even at the Superior Court level, however, it is uncertain the AG is an appropriate choice.
Assume for a moment you are accused of some awful crime. AG Rabner may well be prepared to prosecute against you, defend you, or decide your case. But would want him to advocate for you, defend you, or decide your case in a civil matter. If he were to be your lawyer he would be a neophyte facing experienced trial attorneys. As a new judge he would be continually challenged by a diversity of civil actions, rules and standards that bear little relation to those in a criminal court. And, he would face the rich and the powerful corporations with their well heeled outside counsel and litigation public relations firms. If they were your opponents and your home, job and / or family life were at stake would you want AG Rabner to be the trial lawyer who represents you or the judge who decides your case. In short would you want the auto mechanic to repair the airplane? Do you want to be his on the job training?
Taking the analysis one step further, ask your self, would you want the best auto mechanic in the world to design the airplane you were flying on? Because in making the AG the Chief Justice of the Supreme Court you are not just asking the mechanic to design the airplane - you are asking him to lead the design team.
Monday, June 11, 2007
BROKEN TRUST- IS A.G. RABNER A JUDICIAL ACTIVIST - PART 2.
To date A.G. Rabner has sought to reinforce the notion he is “Mr. Clean” by simply saying “trust me; for years I was a (mediocre?) Assistant U.S. Attorney”, that he has “no agenda” and in the absence of bias he will make decisions based on the facts and legal precedent(s) (itself an odd statement given his role is to review conflicting appellate panels'opinions). Nevertheless, given recent, lesser known remarks, it appears A.G. Rabner is a judicial activist who will not respect the First Amendment and thus cannot serve on the New Jersey Supreme Court.
The matter at hand pits “hate crime” against “hate speech.” Making the two indistinguishable is a slippery slope. It’s always hard to defend speech that is disliked. And, it is the mark of a politician to judge according to interest. Except in Rabner’s case the implications are far more severe. Will he find words like wife and husband or natural marriage to be hate speech. Will he force all statutes and codes to be sexual orientation neutral. Will he handle dissenting heterosexual views of students in the schools as harassment? Will he respect the First Amendment or will he serve the political interests that appoint and confirm him. Think it’s crazy – much of it’s the law in the Ninth Circuit Court of Appeals. Some is now being made law by the California legislature.
The A.G. recently obscured the difference and has made no attempt to correct it. Indeed, according to Rabner we must all be afraid of people who think bad thoughts as they will surely hurt us. Thus we must control what they think.
On April 19, 2007 A.G. Rabner addressed the first "New Jersey Unites Against Hate" summit at the State House Annex in Trenton. The goal was to demonstrate to the people in New Jersey that we are united in our efforts to combat bias and hate crimes … Rabner opened the forum by remembering the Virginia Tech massacre just a few days earlier and connecting it to the work of the anti-hate organizations. Raber said ‘When thinking about the incident at Virginia Tech, the Oklahoma City bombings, and Don Imus, you may have realized that, unlike the Waco situation or the Holocaust, these acts of hatred were carried out by individuals, and not a larger group,’ the attorney general continued. ‘The majority of those who commit hate crimes are individuals who have heard the ethnic and racial stereotypes, wholeheartedly believe them to be true, and decide to act on impulse.’ "
In the view of the U.S. Department of Justice: “In its broadest sense, the term [hate crime] refers to an attack on an individual or his or her property (e.g. vandalism, assault, arson, murder) in which the victim is intentionally targeted because of his or her race, color, religion, national origin, gender, disability, or sexual orientation.”
Aside from Rabner’s apparent desire for thought control, he needs to explain how the shootings at Virginia Tech are a hate crime as opposed to a deliberate misstatement of the act. He needs to tell us what he knows that takes the matter to the area of race, religion, etc. as opposed to a mentally ill person who was a danger to himself and others?
A.G. Rabner also needs to explain how the words of Imus constitute a hate crime as opposed to revolting speech. Did they incite the team to violence. Did they harass the players. The words Imus used are protected at law and precedent. Aren’t they Stu.
A.G. Rabner’s statements show he has an agenda because they fail to distinguish between an act made criminal by law which includes some element of bias and protected words which he personally deems hateful. As a prosecutor he should know the difference. If he doesn’t he is not competent to be Chief Justice. If the A.G. is as well versed in the law as Governor Corzine would have us believe, then Rabner knows the difference and his remarks reflect a deliberate insensitivity in decision making. Thus Rabner’s bias is his deliberate indifference to the First Amendment and his blatant lack of respect for the Constitutional rights of others with whose views he differs. In short, the agenda of a judicial activist.
The matter at hand pits “hate crime” against “hate speech.” Making the two indistinguishable is a slippery slope. It’s always hard to defend speech that is disliked. And, it is the mark of a politician to judge according to interest. Except in Rabner’s case the implications are far more severe. Will he find words like wife and husband or natural marriage to be hate speech. Will he force all statutes and codes to be sexual orientation neutral. Will he handle dissenting heterosexual views of students in the schools as harassment? Will he respect the First Amendment or will he serve the political interests that appoint and confirm him. Think it’s crazy – much of it’s the law in the Ninth Circuit Court of Appeals. Some is now being made law by the California legislature.
The A.G. recently obscured the difference and has made no attempt to correct it. Indeed, according to Rabner we must all be afraid of people who think bad thoughts as they will surely hurt us. Thus we must control what they think.
On April 19, 2007 A.G. Rabner addressed the first "New Jersey Unites Against Hate" summit at the State House Annex in Trenton. The goal was to demonstrate to the people in New Jersey that we are united in our efforts to combat bias and hate crimes … Rabner opened the forum by remembering the Virginia Tech massacre just a few days earlier and connecting it to the work of the anti-hate organizations. Raber said ‘When thinking about the incident at Virginia Tech, the Oklahoma City bombings, and Don Imus, you may have realized that, unlike the Waco situation or the Holocaust, these acts of hatred were carried out by individuals, and not a larger group,’ the attorney general continued. ‘The majority of those who commit hate crimes are individuals who have heard the ethnic and racial stereotypes, wholeheartedly believe them to be true, and decide to act on impulse.’ "
In the view of the U.S. Department of Justice: “In its broadest sense, the term [hate crime] refers to an attack on an individual or his or her property (e.g. vandalism, assault, arson, murder) in which the victim is intentionally targeted because of his or her race, color, religion, national origin, gender, disability, or sexual orientation.”
Aside from Rabner’s apparent desire for thought control, he needs to explain how the shootings at Virginia Tech are a hate crime as opposed to a deliberate misstatement of the act. He needs to tell us what he knows that takes the matter to the area of race, religion, etc. as opposed to a mentally ill person who was a danger to himself and others?
A.G. Rabner also needs to explain how the words of Imus constitute a hate crime as opposed to revolting speech. Did they incite the team to violence. Did they harass the players. The words Imus used are protected at law and precedent. Aren’t they Stu.
A.G. Rabner’s statements show he has an agenda because they fail to distinguish between an act made criminal by law which includes some element of bias and protected words which he personally deems hateful. As a prosecutor he should know the difference. If he doesn’t he is not competent to be Chief Justice. If the A.G. is as well versed in the law as Governor Corzine would have us believe, then Rabner knows the difference and his remarks reflect a deliberate insensitivity in decision making. Thus Rabner’s bias is his deliberate indifference to the First Amendment and his blatant lack of respect for the Constitutional rights of others with whose views he differs. In short, the agenda of a judicial activist.
Thursday, June 7, 2007
BROKEN TRUST: IS A.G. RABNER A JUDICIAL ACTIVIST, PART 1.
The overarching question for New Jersey’s Senate Judiciary Committee Hearings considering Gov. Corzine’s appointment of A.G. Rabner to Chief Justice of the Supreme Court is whether A.G. Rabner is a “judicial activist” and if so what kind?
Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.
However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.
Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.
Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."
At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.
If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.
Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.
However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.
Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.
Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."
At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.
If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.
Monday, June 4, 2007
BROKEN TRUST: GOV. CORZINE HAS A.G. RABNER ON SUPREME COURT SPIN CYCLE
Governor Corzine appears to have initiated the second go-round in his multi-part strategy to put A.G. Rabner in the seat of retiring Chief Justice Zazalli.
The first phase was to create Brand Rabner in the public’s mind by making him the Governor’s Counsel and Attorney General.
The second phase was to wait until the last minute to announce the appointment and thus provide enough uncertainty to prevent any opposition from zeroing in on a sitting target.
The third phase began on Thursday, May 31, 2007, when anonymous "administration officials" leaked to the press that Governor Corzine will announce, at a press conference scheduled for Monday, June 4, 2007, A.G. Rabner is his choice to replace C.J. Zazalli on June 17, 2007. And, of course, Governor Corzine's Office refused to comment (1).
The purpose of the Thursday’s release, therefore, is threefold. First, it gives the press a "scoop" and thus a reason to quickly print the story, i.e. to create buzz. Second, it sets the tone and frames the buzz in those stories by sending otherwise busy reporters scurrying to put together some relevant combination of facts, quotes and analysis by deadline. Third, it uses the timing as a foil to unfavorable news . Without more then, Monday's announcement is old news, out of the headlines - a fate resigned to. By Monday night the media's eyes and reporting attention will be on the State's primary elections. And, in a week, plus or minus, Rabner will be quietly confirmed.
Based on newspaper articles it appears Governor Corzine's early head count makes the appointment of A.G. Rabner a go. But, as your read them, ask yourself some questions: Do the things said about A.G. Rabner show essential and enough attributes, as opposed to being good but not necessary nor enough characteristics, to warrant making him the next Chief Justice? Do they identify Governor Corzine’s mission, what he wants the Court to be?
Peter G. Verniero (Disgraced former Justice) "... From what I know of Stuart, he’s up to the task.” COMMENT: Then again, racial profiling is up.
Senate President Richard Codey: " 'This was expected all along.' ... Rabner 'is an excellent choice. I think he's fair,' said Codey, who represents Rabner's hometown … . 'I don't necessarily think he tilts either way, ideologically. He's a man of integrity and a voice of reason.'" COMMENT: What the hell did he say? Without a legal ideology there is neither a legal mode nor method and thus only arbitrary, as opposed to fair, judgments. Isn’t that called judicial activism?
Senate Minority Leader Leonard Lance "said he did not want to 'pre-judge' the confirmation process, but 'as a starting point, I would say that Stuart Rabner received our support when he was confirmed to be attorney general.' Lance also said he worked well with Rabner when Rabner was Corzine's chief Counsel last year." COMMENT: Looks good, feels good.
Senator Adler (Chairman of the Senate Judiciary Committee) "who graduated from Harvard Law School a year before Mr. Rabner, said of his qualifications: 'I have a very high regard for Stuart Rabner as an attorney, as a public servant and as a person. And in whatever capacity he serves New Jersey, New Jersey is better off.'” COMMENT: Rabner for Governor!
Senator Gerald Cardinale said "it would be 'one of the better appointments' that Corzine has made." COMMENT: Seems to imply Governor Corzine has pretty low standards.
The Fourth phase will begin with NJ Bar provided unsubstantiated anointing, followed by a short Judiciary Committee hearing, ASAP, with an equally quick Senate vote. Speed of approval is necessary to prevent in depth review and legislative accountability. It facilitates ignoring, silencing or ridiculing any opposition. Why? Because when you scratch the surface, Meagan's Law litigation aside, one might find A.G. Rabner to be neither qualified nor impartial.
FOOTNOTES:
(1) This post was ready for release on the morning of 06 - 04 - 07, but was not published. Please accept our apology. Because it is an analysis of Governor Corzine's strategy, however, for better or worse, it is unchnaged. thus, the decision was made to publish it today. Thank you for you patience.
(2) Monday's announcement may or may not be as advertised. It could be a feint and the Governor might name someone else. But that would anger a lot of reporters. Such an Administration in-your-face on the heels of the anonymous official certainty incorporated by so many reporters into creating their stories would hurt the reporters (source checking) and their employers' credibility (the Fourth Estate) and damage the administrations ability to spin future leaks. Or, the announcement could be a variant of the leak. If, over the weekend, an opposition with the power to stop A.G. Rabner appears stronger than anticipated, Governor Corzine could appoint him to the Supreme Court as a justice. Someone else, like tenured Justice Virginia Long, might be elevated to Chief Justice. Justice Long retires no later than 2012. This path would advance A.G. Rabner to the Court and give him another chance within 5 years. An improbable, but practical Plan B.
The first phase was to create Brand Rabner in the public’s mind by making him the Governor’s Counsel and Attorney General.
The second phase was to wait until the last minute to announce the appointment and thus provide enough uncertainty to prevent any opposition from zeroing in on a sitting target.
The third phase began on Thursday, May 31, 2007, when anonymous "administration officials" leaked to the press that Governor Corzine will announce, at a press conference scheduled for Monday, June 4, 2007, A.G. Rabner is his choice to replace C.J. Zazalli on June 17, 2007. And, of course, Governor Corzine's Office refused to comment (1).
The purpose of the Thursday’s release, therefore, is threefold. First, it gives the press a "scoop" and thus a reason to quickly print the story, i.e. to create buzz. Second, it sets the tone and frames the buzz in those stories by sending otherwise busy reporters scurrying to put together some relevant combination of facts, quotes and analysis by deadline. Third, it uses the timing as a foil to unfavorable news . Without more then, Monday's announcement is old news, out of the headlines - a fate resigned to. By Monday night the media's eyes and reporting attention will be on the State's primary elections. And, in a week, plus or minus, Rabner will be quietly confirmed.
Based on newspaper articles it appears Governor Corzine's early head count makes the appointment of A.G. Rabner a go. But, as your read them, ask yourself some questions: Do the things said about A.G. Rabner show essential and enough attributes, as opposed to being good but not necessary nor enough characteristics, to warrant making him the next Chief Justice? Do they identify Governor Corzine’s mission, what he wants the Court to be?
Peter G. Verniero (Disgraced former Justice) "... From what I know of Stuart, he’s up to the task.” COMMENT: Then again, racial profiling is up.
Senate President Richard Codey: " 'This was expected all along.' ... Rabner 'is an excellent choice. I think he's fair,' said Codey, who represents Rabner's hometown … . 'I don't necessarily think he tilts either way, ideologically. He's a man of integrity and a voice of reason.'" COMMENT: What the hell did he say? Without a legal ideology there is neither a legal mode nor method and thus only arbitrary, as opposed to fair, judgments. Isn’t that called judicial activism?
Senate Minority Leader Leonard Lance "said he did not want to 'pre-judge' the confirmation process, but 'as a starting point, I would say that Stuart Rabner received our support when he was confirmed to be attorney general.' Lance also said he worked well with Rabner when Rabner was Corzine's chief Counsel last year." COMMENT: Looks good, feels good.
Senator Adler (Chairman of the Senate Judiciary Committee) "who graduated from Harvard Law School a year before Mr. Rabner, said of his qualifications: 'I have a very high regard for Stuart Rabner as an attorney, as a public servant and as a person. And in whatever capacity he serves New Jersey, New Jersey is better off.'” COMMENT: Rabner for Governor!
Senator Gerald Cardinale said "it would be 'one of the better appointments' that Corzine has made." COMMENT: Seems to imply Governor Corzine has pretty low standards.
The Fourth phase will begin with NJ Bar provided unsubstantiated anointing, followed by a short Judiciary Committee hearing, ASAP, with an equally quick Senate vote. Speed of approval is necessary to prevent in depth review and legislative accountability. It facilitates ignoring, silencing or ridiculing any opposition. Why? Because when you scratch the surface, Meagan's Law litigation aside, one might find A.G. Rabner to be neither qualified nor impartial.
FOOTNOTES:
(1) This post was ready for release on the morning of 06 - 04 - 07, but was not published. Please accept our apology. Because it is an analysis of Governor Corzine's strategy, however, for better or worse, it is unchnaged. thus, the decision was made to publish it today. Thank you for you patience.
(2) Monday's announcement may or may not be as advertised. It could be a feint and the Governor might name someone else. But that would anger a lot of reporters. Such an Administration in-your-face on the heels of the anonymous official certainty incorporated by so many reporters into creating their stories would hurt the reporters (source checking) and their employers' credibility (the Fourth Estate) and damage the administrations ability to spin future leaks. Or, the announcement could be a variant of the leak. If, over the weekend, an opposition with the power to stop A.G. Rabner appears stronger than anticipated, Governor Corzine could appoint him to the Supreme Court as a justice. Someone else, like tenured Justice Virginia Long, might be elevated to Chief Justice. Justice Long retires no later than 2012. This path would advance A.G. Rabner to the Court and give him another chance within 5 years. An improbable, but practical Plan B.
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