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“So Much For Checks And Balances”: Welcome To Tennessee, Where Lawmakers Are Trying To Kneecap Judges

In state houses around the country, January often brings the emergence of many of the year’s most dubious legislative proposals. January is the month of patently unconstitutional bans on “sharia law.” It is the month of promoting the unlawful practice of jury nullification. But mostly it’s the month for legislators to attack the independence of the judiciary.

Again this year, all over the country, state lawmakers have introduced bills to curb their cousins in the judicial branch. In Oklahoma, lawmakers want to remove from the Code of Judicial Conduct references to judicial independence. In Kansas and New York, state lawmakers want to force trial judges to render their decisions within a certain time or be forced out of office. But perhaps the most egregious of this year’s crop of ill-advised measures comes from Tennessee, where lawmakers have introduced a bill that combines many of these bad measures from other states into one big ball of scorn for the state’s judiciary.

SB 2322, as the Tennessee bill is known, seeks to replace the administrative office of the state courts with the treasurer’s office, which is part of the executive branch of state government. The state Supreme Court would no longer be able to “direct” the work of the court administrator but rather “urge” executive branch officials to take certain action. The bill would shut down the state’s judicial disciplinary board, now under the auspices of the judicial branch, and replace it with a new review board that would answer, again, to the state treasurer. That board would be made up of political appointees from the executive and legislative branches of government. Judges would be prohibited from serving on a board evaluating the work of the judiciary.

If that were all SB 2322 did, it would be bad enough. Each of the above components of the pending legislation violates separation of powers principles and constitutes impermissible encroachment upon basic judicial functions. It is axiomatic that judges should have the power and authority to administer their own affairs, as they do in every other jurisdiction in the nation, and should not be precluded from evaluating the disciplinary issues that arise within their profession. You don’t need to be a political scientist to understand the pressure the executive branch would be able to wield over Tennessee’s judiciary if the legislature were to enact this bill.

But there is more. SB 2322 seeks to dramatically alter the nature of death penalty procedures in a way that undermines core judicial functions. Judges would not be able to extend filing deadlines in capital cases — even if such extensions were justified and necessary to ensure the constitutional rights of defendants. And judges also would be forced to meet their own deadlines for resolving capital cases, even if they were not ready to do so. Meanwhile, lawyers representing indigent capital defendants would be required to reimburse the state if they were later found to have rendered “ineffective assistance of counsel,” a requirement that would make it materially harder for indigent defendants in the state to get a court-appointed lawyer willing to take the case.

These proposed measures, too, are patently unconstitutional incursions into the judiciary’s work. But they also happen to be bad ideas beyond their constitutional dimensions. Forcing judges to rush their decisions won’t make those decisions more accurate or justifiable — and that won’t ultimately save Tennessee taxpayers from the costs of appellate work. And precluding capital defendants from seeking more time to file their court papers — so they can better evaluate evidence, for example — won’t help root out instances of false confessions, or flawed eyewitness testimony, or prosecutorial misconduct.

Experts who study these sorts of bills are, quite naturally, both alarmed and disappointed. “There’s a reason no other state in the country has such a system, Bert Brandenburg, the executive director of Justice at Stake, told me Monday. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”

Tennessee’s judicial branch is not perfect. No branch of government anywhere is perfect. But it is reckless to think that the best solution to perceived problems within this state’s judiciary is to turn control of it over to the executive branch. There is a reason that our systems of government have three branches that are asked to provide checks and balances upon each other. What SB 2322 would do is upset that balance, and preclude those checks, in a way that surely would end up harming the people of Tennessee.

 

By: Andrew Cohen, The Week, January 29, 2014

January 31, 2014 Posted by | Judges, State Legislatures | , , , , | Leave a comment

“Those Dreaded Unions”: Republicans Who Meddle With Profit-Making Business

It’s no secret that many Republican lawmakers dislike labor unions, which are big supporters of Democrats. But it’s unusual to see a politician willing to castigate an employer in his state just for talking to union officials about setting up a union at its factory.

Consider the case of Bob Corker, the Republican senator from Tennessee, and Volkswagen, the German automaker that employs 2,000 workers at a plant in Chattanooga. As my colleague Steven Greenhouse reported last week, the company is working with the United Auto Workers on a plan to unionize its factory so it can establish what is known as a “works council” in Germany. These councils are essentially committees of workers that meet with management to discuss how to improve conditions and productivity. Some studies have found that plants with such committees have higher productivity and wages than factories without them, which is why both workers and management might want them.

But Mr. Corker appears to have never seen a union he liked. In an interview with the Associated Press, he called Volkswagen’s decision to engage in these talks “incomprehensible” and said the company would become a “laughingstock in the business world” if it went ahead with the plan. His criticism is particularly strange because he is reported to have played a big role in bringing Volkswagen to Chattanooga, where he was once mayor. To be fair, Mr. Corker is not alone; the governor of his state, the Republican Bill Haslam, is also opposed to the Volkswagen-U.A.W. plan.

The lawmakers say they are worried that a unionized Volkswagen plant would somehow ruin the investment climate in the state and compel other companies not to invest there. A more realistic explanation for why the lawmakers oppose the U.A.W.’s foray into their state is that they fear it will support the state’s Democratic party.

The strangest thing about Mr. Corker’s and Mr. Haslam’s criticism of Volkswagen is that Republicans are usually on the ones telling everybody else in government not to meddle in the affairs of profit-making businesses. After all, it’s their mantra that businesses, not lawmakers, create jobs. But I guess none of that matters in this case because even a company as successful and profitable as Volkswagen, which is competing with Toyota and General Motors to be the world’s largest automaker, must be deluded if it’s entertaining the possibility of working with a dreaded union.

 

By: Vikas Bajaj, Editors Blog, The New York Times, September 12, 2013

September 13, 2013 Posted by | Businesses, Unions | , , , , , , , | Leave a comment

“Religious Zealotry”: In God’s Name Or Baby Messiah, Competing Claims Of Religious Freedom

Last week, when a Tennessee judge forcibly changed an infant’s name from Messiah to Martin, it was hard to decide which was more noteworthy, the parents’ grandiosity in naming their child for the one they consider their Savior or the judge’s religious zealotry in prohibiting the name.

“The word ‘Messiah’ is a title, and it’s a title that has only been earned by one person and that one person is Jesus Christ,” said Magistrate Lu Ann Ballew.

The American Civil Liberties Union has offered to appeal the ruling for the child’s mother, Jaleesa Martin, of Newport, Tenn., who did not return a phone call. The ruling came in a hearing after Ms. Martin and the baby’s father could not agree on a last name for the boy, but the judge took issue with his first name.

The case of little Messiah — or Martin, for now — raises two interesting questions, one legal and the other religious. Both are trickier than they seem.

States put all sorts of restrictions on parental naming rights, from the length of first names to what punctuation marks are permissible. But the restrictions cannot, for the most part, be justified by an appeal to religion. It therefore seems likely that Magistrate Ballew’s ruling against “Messiah” will be overturned as a violation of the First Amendment.

On the other hand, last year a New York judge refused to allow a couple to change their family name to ChristIsKing. The judge argued that allowing certain names could infringe on the religious liberties of others, and he offered the example of a court employee forced to call out a name with a religious message.

“A calendar call in the courthouse would require the clerk to shout out, ‘JesusIsLord ChristIsKing’ or ‘Rejoice ChristIsKing,’ ” wrote Judge Philip S. Straniere, of Richmond County. He was alluding to the daughter’s first name, Rejoice, and a name they had sought for their son, although no court would allow them to change it to “JesusIsLord.”

Judge Straniere’s decision is not binding in Tennessee, but it reminds us that whenever religious language is involved, whether etched into public buildings or slapped onto a Social Security card, there are competing claims of religious freedom.

The Tennessee magistrate might have argued that “Messiah” would infringe on the religious liberty of those who did not want to call this boy the messiah — or did not believe there was even such thing as a messiah. She could have been the defender of atheists’ rights! That argument might have stood a better chance on appeal.

Last year, there were 762 American baby boys given the name Messiah, putting it right between old standbys Scott and Jay for popularity, according to the Social Security Administration database. As currently formulated, the magistrate’s reasoning would be a problem not only for all of them, but also for all the Americans, primarily of Hispanic ancestry, who have named their sons Jesus. There were 3,758 Americans given the name Jesus last year, putting it way ahead of Messiah.

Now, one could argue that Jesus does not necessarily refer to Jesus Christ, the one believed to be the Messiah (“Christ” is one Greek-derived translation for “messiah”). But surely that’s whom most parents have in mind. Jesús finds particular favor among Roman Catholics in Mexico and Central America, where so many recent immigrants come from. It is less popular in Spain.

“My impression,” said Ilan Stavans, who teaches Spanish literature at Amherst College, “is that there is an identification in Latin America with characters of the Passion that you don’t find in other parts of the world, including Spain.”

Yet as Mr. Stavans points out, the tradition of religious naming in Latin America goes beyond those involved in the events, known as the Passion, leading up to Jesus’ crucifixion. Many Latinos are happy to name their children versions of the word “God.”

“Adonai is also a common name among Latinos, especially Mexicans,” Mr. Stavans said. “And so is Elohim.” Those are both Hebrew versions of the word for the deity. “But neither of them,” he added, “matches the ubiquity of Jesus, closely followed by Maria, Jose and Guadalupe.”

Hebrew-derived names are particularly popular among Latinos who have become Pentecostal Protestants, according to Arlene Sánchez-Walsh, a historian at Azusa Pacific University, in Azusa, Calif. As Pentecostalism has spread in Latin America, new adherents have a “desire to connect to Old Testament prophets, Jewish dietary laws and sometimes Sabbath keeping,” Ms. Sánchez-Walsh said. It “gives Latino Pentecostals a stake in their religious heritage as non-Catholics — which is what a lot of this is about.”

For some, that stake in non-Catholic Christianity is achieved by picking the names of patriarchs or prophetic figures, like Jacob or Eliezer, both names given to Hispanic Pentecostal boys I know. Adonai or Elohim ups the Old Testament ante.

Jews don’t name children versions of God, generally sticking to human beings in the Hebrew Bible. It is forbidden for Muslims to name a child Allah or God. For reasons that are unclear, much of the English-speaking world has tended to avoid Jesus as a name.

And all of these rules, quasi rules and traditions are subject to change, notes Stephen Butler Murray, the pastor of First Baptist Church in Boston and a lecturer at Harvard Divinity School.

“Mary was considered simply too holy for secular use until the 12th century,” Mr. Murray said. Yet today Mary, along with cognates like Maria and Marie, are popular throughout the Christian world.

Finally, Mr. Murray added that we use God-names for institutions all the time, without anyone being accused of blasphemy. “Messiah College in Pennsylvania seems to go on without being struck by the lightning of divine wrath too often,” he said.

 

By: Mark E. Oppenheimer, The New York Times, August 16, 2013

August 19, 2013 Posted by | Religion | , , , , , , , , | Leave a comment

“By Any Other Name, It’s Still A Name”: Why Veto Messiah But Not Moon Unit Or Moses?

It’s not exactly in the Constitution, but it is a parent’s inalienable right to have questionable taste and embarrass their children. And that is why it’s disturbing that a judge in Tennessee would tell a parent what she can and cannot name her son.

OK, so the mother wanted to name the kid “Messiah.” It’s sort of an elegant name, actually, if it didn’t mean anything to a lot of people. And that’s what troubled Tennessee Child Support Magistrate Lu Ann Ballew, who did not bear the child or agree to raise the child, but who has nonetheless decided it’s her place to veto the name. To which one can only respond, “oh, for God’s sake.”

The judge told WBIR TV:

The word Messiah is a title and it’s a title that has only been earned by one person. And that one person is Jesus Christ.

So it’s about titles, is it? Then how did singer Michael Jackson get away with naming his kid “Prince Michael?” You could make a stronger argument that the actual name “Jesus Christ” is pushing the envelope. But even then, “Jesus” is a popular name among Spanish-speaking people, many of whom are devoted Catholics.

So what’s the problem, again? Ballew went on, saying, “It could put him at odds with a lot of people. And at this point, he has had no choice in what his name is.”

Well, that’s another question. Silly names that feed the juvenile humor or self-aggrandizement of the parents? Yes, let’s then get rid of Moon Unit Zappa, Gwyneth Paltrow’s kid, Apple, and all those names by parents who think it’s just adorable to name their kids things like “Candy Bar” and “Claire Voyant.”

It’s simply not up to a judge to rename a child, especially when the alleged offense is against a select group of people with a particular view towards religion. The name “Messiah” might mean a lot to some people, but it means basically nothing to a whole group of other people. It’s not as though the name is, on its face, obscene. Though it might be humorous to go on TV and have one’s own name bleeped out when you’re introduced.

The judge pledges to protect and respect religion, but she’s really just imposing her own beliefs on everyone else, and in a way that is intensely personal. And if it’s really religious names that get her into a lather, she ought to have a long chat with Paltrow. The actress’s second child is named “Moses,” after all.

 

By: Susan Milligan, U. S. News and World Report, August 14, 2013

August 15, 2013 Posted by | Politics, Religion | , , , , , , , | Leave a comment

“A Larger Terrifying Trend”: Nullification Must Never Be On The Table

About a week ago, Robert Schlesinger reported on a bill in Montana’s state legislature that would have “forbidden Big Sky law enforcement from enforcing any new assault weapons ban or ban on high capacity magazines,” even if such a law were passed by Congress. In effect, a majority of Montana state lawmakers said they want to be able to nullify a federal law they don’t like.

In this case, the Montana bill was largely pointless — a law that doesn’t exist can’t be rejected — and was vetoed by Gov. Steve Bullock (D) anyway. But the effort was a reminder about a larger, rather terrifying trend: a growing number of state Republican policymakers consider nullification a legitimate use of state power.

For context, it’s worth remembering that there was a rather spirited debate in the mid-19th century over whether states could choose to ignore federal laws. The debate was resolved by a little something called the U.S. Civil War — those who argued in support of nullification lost.

And for the last several generations, that was that. But as Republican politics has grown increasingly radicalized in recent years, the discredited legal principle has started to move from the outer fringes of American life to state capitols. Consider this story out of Tennessee this week, for example.

The state House and Senate speakers have agreed to have a joint committee conduct hearings over the summer and fall on federal government laws and executive orders that may have exceeded constitutional authority, Sen. Mae Beavers, R-Mount Juliet, told colleagues Tuesday.

Beavers’ announcement came after declaring she would not push for passage of the “Balance of Powers Act” (SB1158), which would have set up a joint legislative committee to determine which federal laws should be nullified in Tennessee by the General Assembly.

Not to put too fine a point on this, but there’s nothing to discuss — state lawmakers can’t pick and choose which federal laws they’ll honor. But instead of realizing this basic tenet of modern American law, Tennessee will actually hold hearings on a concept that is, in the most literal sense, radical.

And it’s not just Tennessee.

As Schlesinger noted in his report, some states are looking to nullify gun laws that don’t yet exist; West Virginia is thinking about nullifying federal regulations on coal mining; and Mississippi, like Tennessee, is eyeing the creation of a nullification committee to pare down federal laws the state doesn’t like.

Let’s also not forget that in North Carolina, there’s pending legislation that says the First Amendment doesn’t apply to the state, federal courts can’t determine what’s constitutional under the U.S. Constitution, and North Carolina has the right to declare its own state religion.

If we broaden the context a bit, we can even look at the anti-abortion measures recently approved in North Dakota and Arkansas. Lawmakers were well aware of the fact that these bills are unconstitutional under existing Supreme Court precedent, but they decided it didn’t matter.

It’s my sincere hope that this is just a bizarre fad among radicalized Republicans, and to borrow a phrase, the “fever” gripping GOP politics will soon fade without incident. Chances are, cooler heads will prevail and these various nullification efforts will fade away, left to become a punch-line among future historians marveling at the far-right hysteria of the Obama era.

But I’d lying if I said this isn’t disconcerting and more than a little alarming.

 

By: Steve Benen, The Maddow Blog, April 4, 2013

April 8, 2013 Posted by | Federal Government, GOP | , , , , , , , | Leave a comment

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