Short-Circuiting the System to Play Elected Dictator

MH900321176

Prosecutorial discretion.

Now there’s a nice phrase. 

Another phrase that’s almost synonymous with prosecutorial discretion is selective prosecution. One is considered a sometimes valid, if often abused, tool in the prosecutorial toolbox. The other heads off into the dark hinterlands of overt discrimination and flat-out corruption. 

From what I’ve seen, selective prosecution is closely aligned with those other destructors of justice: subornation of perjury and tampering with the evidence. 

Taken together, these little prosecutorial peccadilloes have the ability to overturn our justice system and make it into a tyranny.

Prosecutorial discretion, when mis-used for political demagoguery, can easily become a means of blocking the system and turning the whole legislative/judicial process into a sham. Prosecutorial discretion aligned with political demagoguery is so close to selective prosecution that it’s difficult to differentiate between them. 

My colleague, Leah Libresco, chimed in on the question of prosecutorial discretion yesterday with a fine post on the behavior of two elected officials. These two people are at the opposite ends of the ideological spectrum on what they are demagoguing about, but their misbehavior is based on an identical misapprehension of the powers of their office. 

KGK 318x468

One is Kathleen Kane, the Attorney General of the State of Pennsylvania. Attorney General Kane announced a few weeks ago that she would not do the job the voters of the state of Pennsylvania elected her to do. She would not defend the state’s law defining marriage in court. Why? Because she doesn’t agree with the law. She seems to think that the law is immoral.

Her announcement was greeted by cheers from gay rights activists and uncomprehending silence from most of the citizens she betrayed. Attorneys General have gone about the business of doing their jobs for so long that most people just take it for granted that they will do them. In fact, a lot of people don’t really understand that when an attorney general flat-out refuses to do their job in this way, it is, and should be, an impeachable offense in most localities. 

Sheriffpic4

The other is a sheriff in Baton Rouge Louisiana who has been arresting homosexuals for violation of what sounds like the state’s anti-sodomy law. The Supreme Court overturned this law in 2003. I would guess that the sheriff didn’t agree with this decision. He may very well mirror Attorney General Kane by thinking that the decision is immoral.  

This debate about where personal morality ends and the responsibilities of office begin is not nebulous. It also does not apply to employment situations such as whether or not a pharmacist is required to fill prescriptions for RU486, a nurse should be required to assist in an elective abortion or a florist must sell flowers for a gay wedding. But it applies absolutely to elected officials. 

The difference — and it is an enormous difference — is between ordinary employment and elected office. An elected official who refuses to fulfill the requirements of their job or who deliberately oversteps the limits of their powers, is violating a public trust. They are violating the Constitutional privilege to hold office and execute the powers of the people in the name of the people.

Public office is not mere employment. It is the indispensable ingredient of the smooth functioning of a just and stable government. As such, it is incumbent on every and all elected officials to do their jobs to the best of their abilities and not the abuse the powers of their office. 

I react to both the situations described above, not, as Leah did, as a philosopher, but as an elected official who has been charged with fulfilling the duties of office for 18 years. I understand several key things that proponents of these two elected officials’ actions won’t accept.

MH900400849

First, law enforcement, from top to bottom, is not law making. Law enforcement enforces laws. It does not write them. If Attorney General Kane wanted to work to overturn Pennsylvania’s marriage law, there were many options open to her, including running for election to a law-making position. Since she is an attorney, she might also have considered not running for office at all and filing cases against the law, maybe doing it pro bono. 

An Attorney General is not supposed to even take positions on the laws which they are sworn to defend and uphold. By that I mean that she should not be out making stump speeches against such laws — or for them, for that matter. Her job, and I keep saying this, but nobody seems to hear me, her job is to uphold and defend the laws of the State of Pennsylvania.

This is especially grave since, like all elected officials, she is the only person in her jurisdiction (in this case, the entire state of Pennsylvania) who holds the power of her office. If she refuses to do her job, the job can not be done by anyone else.

This is equally true of the sheriff in Baton Rouge. As an elected official, he is the only sheriff in that jurisdiction. No one else can do his job. Also, he is not a law maker or a law interpreter. He is a law enforcer. The decisions about what laws he should enforce are made by Congress, the legislature and the courts. 

Elected office is a privilege, not a sentence to be served. If any elected official finds that they cannot in good conscience perform the duties of their office, they have the free right to resign at any time.

Leah Libresco used a quote from a play and movie about my patron saint, St Thomas More, in her analysis. Thomas More was the Chancellor of England. Despite the enormity of this position, he resigned when his conscience would no longer allow him to discharge his duties as the King demanded. This is a good example for all of us who hold office. 

If Attorney General Kane can not in good conscience do the job that her office requires of her, she has the clear option of resigning. What she does not have is the option of refusing to do her job and thereby depriving the people of Pennsylvania of the legal representation they are Constitutionally entitled to. 

I am glad that Leah found this example giving the other side of this argument. Maybe it will help clarify what is at stake for those people who are so enthralled with their particular advocacy that they are willing to support overturning the very structure of government that gave them the right to advocate in the first place. 

From Unequally Yoked:

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.

 

Texans have a New Abortion Law. Americans have a New Political Reality.

Texas abortion ap 328 605

Texans have a new abortion law.

Americans have a new political reality. 

The Texas legislature passed the much-ballyhooed abortion law which would require abortion doctors to have hospital privileges and abortion clinics to provide the same health and safety standards as other outpatient surgical clinics. They crossed the finish line on this bill late last night amid what can only be described as a mob assault on the Texas state capitol.

The reason I chose the words “mob assault” is that the focus of at least a good number of the citizens who came to the Texas capitol was to use mob action to shut down the legislative process. Consider, for instance, this statement issued by the Texas Department of Public Safety:

AUSTIN – The Texas Department of Public Safety (DPS) today received information that individuals planned to use a variety of items or props to disrupt legislative proceedings at the Texas Capitol.

Therefore for safety purposes, DPS recommended to the Texas Senate that all bags be inspected prior to allowing individuals to enter the Senate gallery, which the Texas Senateauthorized.

During these inspections, DPS officers have thus far discovered one jar suspected to contain urine, 18 jars suspected to contain feces, and three bottles suspected to contain paint. All of these items – as well as significant quantities of feminine hygiene products, glitter and confetti possessed by individuals – were required to be discarded; otherwise those individuals were denied entry into the gallery.

In the interest of the safety and security of Texas legislators and the general public, these inspections will continue until the conclusion of Senate business.

I am all in favor of citizens visiting their state capitols. I think the people of this nation should pay a lot more attention to what their lawmakers are up to than they do now. I believe that every person in this country has a right to talk to their elected officials and to petition them concerning the issues and legislation they are voting on. 

We are, every single elected one of us, representatives of the people who put us here. We can’t know what the people who elected us want from us unless they tell us. Polls and things of that ilk are not a substitute for direct personal input with the people themselves. 

On the other hand, when a group of people try to use mob action to shut down the legislative process, they are attacking democracy. The people who were so bent on disrupting the Texas legislature would not have needed to be there at all if they had been able to take their cause to the court of public opinion and win elections. By trying to disrupt the legislative session with mob action, they were, in effect, attempting to overturn the elections which put the legislators in that chamber to cast those votes.

Political Campaign

If you don’t like what your legislator does with the power you gave them when you elected them, then run against them for election. If  you don’t want to run, then go out and volunteer to help someone else run. Put up yard signs. Make phone calls. Hand out literature. Donate money. 

That is the way to change the face of government in this country. It is a power we all have, and which we are giving away to special interests and money men when we don’t use it. 

There is a new kid on the political block, and it’s a yammering, spoiled, mean-spirited little brat who wants what it wants when it wants it and doesn’t care what damage it does to this country to get it. The bad behavior of some of the protestors in Texas is paralleled by the sudden rash of elected officials, Attorneys General, in particular, who run for office, get elected, and then find that their superior morality requires them to refuse to do the job they were elected to. 

We’re going to have to start arresting these people who come to state capitols and try to use mob action to shut down the legislative process. I don’t want to do that. I want people to feel free to go to their capitols and to talk to their legislators about whatever is on their minds. But we cannot allow mobs of people who cannot win an election try to overturn elections by shutting down the Democratic process by means of creating such havoc that they stop debate.  

Impeach

At the same time, we need to consider impeaching or at least defeating at the polls duly elected chief law enforcement officers who refuse to speak for the people in court. When an Attorney General of a state will not represent the people who elected him or her in court, they are derelict in their duty. They are using a sort of don’t-show-up-in-court-and-deliberately-lose-the-case veto power over the legislative and referendum process. They are making themselves the judge of what it is not their job to be the judge — the will and the power of the people of their state to make their own laws. 

Both of these extreme behaviors — the mob actions in Texas and other states, and the newfound desire to veto legislation by not showing up in court on the part of Attorneys General — are attempts to subvert the will of the people, and to nullify the actions of a representative government. 

I view both these behaviors as the natural outcome of the moral depravity of the positions some citizens are taking. It corrupts and hardens a person to support killing unborn babies. It scrambles the normal thinking processes to convince yourself of something as stupid as the idea that two men or two women are the same as a man and a woman. This is untrue on its face. 

Genuinely pro choice (as opposed to pro abortion) people have legitimate points. Much of what concerns them about the misogynistic treatment of women is well-founded. By the same token, homosexuals have legitimate claims to civil rights and protection under the law. However, the pretense that an unborn baby is not a human being, or that a homosexual union is the same as the marriage between a man and a woman, flies in the face of reality. 

Laws enacted according to these fantasies are always going to cause great harm, because they are not based on the reality of the human condition. People who advocate for these positions, will, over time, harm themselves and their thinking abilities. 

It saddens me, but it doesn’t surprise me, to see the destructiveness to our political fabric ratcheting up with each twist of the political dial. It is the inevitable consequence of the fantastical thinking many people use in forming their worldview.  

Pennsylvania: Another AG Refuses to Do Her Job

Attorney General Kathleen Kane

Pennsylvania Attorney General Kathleen Kane

 

Kamala Harris has an astral twin in Pennsylvania

Ms Harris is the California Attorney General who refused to do her job when it came to speaking for the people of California and defending Proposition 8 in court. That is why the Supreme Court refused to rule on Prop 8, which let the lower court decision that overturned it stand. 

Now, we have another state Attorney General who says she is going to use the power of her office to aid in overturning a state law by the simple expedient of refusing to do her job. 

“I can not ethically defend Pennsylvania’s version of DOMA,” Pennsylvania Attorney General Kathleen Kane announced at a press conference attended by cheering gay marriage supporters, “We are the land of the free and the home of the brave and I want to start acting like that.”

I’m not sure how an Attorney General can claim that they are “ethically” refusing to do the job they were elected to do with a straight face, much less do it with such grade school rhetoric. 

I am a Democrat, but it’s no surprise to me that this latest la-dee-dah refusal to do the job which is the primary requirement of the office she holds comes from another Democrat. I have a suggestion for Attorney General Harris: If you find the laws of Pennsylvania so reprehensible that you cannot in good conscience enforce them and defend them in court, then do not file for the office and campaign for the job which requires you to do that. 

If Attorney General Harris wanted to be a lawmaker, she should have filed for the state legislature. Then, she could have worked to overturn this statute by acting in the full integrity of her office. However, she did not file for the legislature and she was not elected to that or any other lawmaking body. The office she sought and to which she was elected is the chief law enforcement office of Pennsylvania.

Cops at any level do not make laws and they do not chose which laws to enforce. It’s called separation of powers, and we have it to keep little caesars like this from taking over government. 

These two women have allowed their overweening concern with their own personal opinions to supersede the responsibility they owe the people of their states to do the job they were elected to do. If they were honest rather than demagogues, they would resign these offices on the basis that their consciences would not allow them to do the job in front of them.

To refuse to do their jobs and by so doing to aid in the overturning of a law they are bound by oath to enforce and defend is dishonest, callous, cheap demagoguery that denies the people who elected them the voice in the courts that they promised to give when they ran for election in the first place. 

From Reuters

PHILADELPHIA (Reuters) – Pennsylvania Attorney General Kathleen Kane refused on Thursday to fight a lawsuit brought by the American Civil Liberties Union challenging the state’s ban on same-sex marriage.

The lawsuit is believed to be the first federal case since the U.S. Supreme Court ruled on June 26 that the U.S. government must recognize same-sex marriages in states where it is legal.

Kane, a Democrat who supports same-sex marriage, announced her decision at a press conference in the National Constitution Center in historic Philadelphia.

“I cannot ethically defend Pennsylvania’s version of DOMA,” Kane said, referring to the federal Defense of Marriage Act, overturned by the high court last month.

“It is now the time here in Pennsylvania to end another form of discrimination,” Kane said to a crowd of about 200 supporters gathered at conference, many carrying signs reading “Out for Freedom” and cheering her decision.

“We are the land of the free and the home of the brave and I want to start acting like that,” she said.

By declining to defend the state, Kane effectively tosses the issue to Governor Tom Corbett, who can decide to appoint another state lawyer to the task.

Kane and Corbett, a Republican who opposes gay marriage, are both named in the federal lawsuit that was filed in Harrisburg this week.

The ACLU sued on behalf of 23 people, including potential marriage candidates whose unions would not be recognized under current Pennsylvania law.

The lawsuit asks the court to allow the plaintiffs and all other same-sex couples the right to marry in Pennsylvania, and also asks that the marriages of same-sex couples validly obtained in other states be recognized by the state.


CLOSE | X

HIDE | X