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Notes on Graham

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The NYT's "Room for Debate" feature has a short piece by yours truly on Graham v. Florida and two pieces by people on the other side, Marc Mauer and Paul Butler. Here is the final paragraph from my piece:

Chop by chop, judicial activism slowly removes the important decisions of society from the democratic process and carries them off to the marble palace of the unaccountable judiciary. Whether one agrees or disagrees with the sentence in this case or even with the rule made in this case, we have all lost a bit of our constitutional right of self-government today.

Butler makes the case that Senators who believe in justice should be extremely skeptical of anyone nominated to the courts by President Obama, probe deeply their views on criminal law, and not accept evasions or platitudes for answers. That isn't the point he meant to make, of course. He actually wrote this:

This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says "Clarence Thomas, shame on you!"

So maybe Ms. Kagan's liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.

Hans Bader has this piece on examiner.com focusing on the [mis]use, again, of "international opinion" for the interpretation of the Constitution of the United States.

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Citing international opinion is unwise and undemocratic. It allows liberals to "cherry-pick" those positions they support while ignoring those they loathe.

In the context of punitive damages, you will never see a liberal court cite international opinion as the rest of the world thinks our practice of letting unguided, unaccountable, juries set punitive damages is foolhardy.

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