June 25, 2008

Impeach Anthony Kennedy

For the second time this month, US Supreme Court Justice Anthony Kennedy has written an opinion which says it doesn't matter what the political branches of government or the US Constitution have to say on a matter -- the Supreme Court knows better and will impose its will on the people of the United States.

The first time was in granting habeas corpus rights to terrorist detainees, despite Congress having acted under its authority in Article III of the Constitution to strip the Supreme Court of any jurisdiction is such cases.

This time it is in a decision that decrees that the sense of the Supreme Court will be the basis for determining when the death penalty may be imposed, not the laws of the states or the US Constitution -- and that the "evolving standard" on the death penalty can only move towards greater restrictions on capital punishment, not the other direction -- and that the rape of an eight-year old is not a sufficiently serious crime to merit the ultimate sanction.

The U.S. Supreme Court made it illegal to execute persons convicted of child-rape in a 5-4 decision Wednesday.

"The death penalty is not a proportional punishment for the rape of a child," wrote Justice Anthony Kennedy, who authored the majority opinion. The ruling broke on party lines, the liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer siding with Kennedy.

In their decision, the liberal justices ruled that a Louisiana law that sent 43 year-old man named Patrick Kennedy to death row in 2003 for raping his 8-year old stepdaughter was “cruel and unusual punishment.”

The utter constitutional, legal, and moral depravity of Justice Kennedy in this ruling is clear to see for anyone who reads the majority opinion and the dissent. Indeed, Kennedy expresses more concern with the dignity of the child-raping scumbag than he does for the innocent eight-year-old victim in this case.

In his dissent, Justice Alito shreds Kennedy's arguments, ending his analysis of the flaws of the majority opinion with this conclusion.

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable"objective indicia" of a "national consensus" in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not "extend" or "expand" the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general.

Indeed, as in the recent case granting terrorists outside the United States access to federal courts, Kennedy again twists precedent, law, and fact to fit a pre-determined conclusion at odds with all three. This must stop -- and it must stop now.

The American people are really quite outragedabout this. National Review Online analyzes this decision's wrongness. Rush notes the same attitude on Kennedy's part that I did above.

[W]e just have the court deciding, "We're going to decide these political issues. We're going to decide these things." We don't even need a Congress, anymore. We don't even need a president. We'll just take you all of our controversial issues, submit them to the lawyers [and] the Supreme Court decides, and that's it because that's what it has become.

In the United States,Congress has rarely exercised its power to impeach and remove a sitting federal judge. Furthermore, it has been over two centuries since Congress impeached a Supreme Court justice, and in that case the Senate refused to remove him. Even more importantly, mere disagreement with Supreme Court rulings has not been held to be an appropriate cause for impeachment.

Those things noted, I return to the ultimate authority in this case -- the United States Constitution. Article II, Section 4 speaks to the matter as follows.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.

Furthermore, Article III states that judges (including Supreme Court Justices) shall hold their office during good behavior.

This brings me back to the point at hand -- in these two rulings, Justice Kennedy has demonstrated bad behavior. In both cases, he has placed himself and the Supreme Court above previous court precedent, the laws duly enacted by the elected representatives of the people, and the Constitution itself. As such, he has exceeded his authority in office and promulgated lawless decisions and attempted to make them binding upon the people of the United States and their elected representatives. This is malfeasance in office, pure and simple, engaged in under color of law and authority.

I'd like to urge one or more members of the House of Representatives to file motions for impeachment against Anthony Kennedy. Put each and every Congressman on record right now, four and one-half months before the next election -- do they support allowing the Supreme Court to impose their own extra-constitutional standard rather than that set by the Constitution and the laws enacted by the United States and the several states.

Now some may challenge me, raising the spectre of billboards from decades past urging Congress to "Impeach Earl Warren". The difference here is that while many of the opinions of the Warren Court were controversial and unpopular, it was difficult to argue that they were not grounded in the Constitution -- indeed, the roots of those decisions were buried in the fertile loam that is the text of that guiding document. The same cannot be said of these two most recent judicial monstrosities brought forth by Anthony Kennedy.

I sincerely doubt that the Senate would vote to remove Anthony Kennedy if the House adopted articles of impeachment against the him, but the precedent would serve as a powerful warning against such naked judicial activism.

And in addition, there is a course of action which should be followed by in every state as a result of this ruling. Every state legislature should pass, and every governor should sign, legislation imposing the death penalty for the rape of a child. If even half manage to accomplish this task, it would establish a strong national consensus in favor of the view that "the evolving standards of decency" hold that child rape is viewed by our society as meriting death. Gov. Bobby Jindal of Louisiana has already vowed to resist this decision.

Oh, and for those of you curious, here is what Justice Kennedy argues does not merit capital punishment in today's ruling.

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death. At 9:18 a.m. on March 2, 1998, petitioner called 911 to report that his stepdaughter, referred to here as L. H., had been raped.

He told the 911 operator that L. H. had been in the garage while he readied his son for school. Upon hearing loud screaming, petitioner said, he ran outside and found L. H. in the side yard. Two neighborhood boys, petitioner told the operator, had dragged L. H. from the garage to the yard, pushed her down, and raped her. Petitioner claimed he saw one of the boys riding away on a blue 10-speed bicycle.

When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he had carried her from the yard to the bathtub and then to the bed. Consistent with this explanation, police found a thin line of blood drops in the garage on the way to the house and then up the stairs. Once in the bedroom, petitioner had used a basin of water and a cloth to wipe blood from the victim. This later prevented medical personnel from collecting a reliable DNA sample.

L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery.

At the scene of the crime, at the hospital, and in the first weeks that followed, both L. H. and petitioner maintained in their accounts to investigators that L. H. had been raped by two neighborhood boys. One of L. H.’s doctors testified at trial that L. H. told all hospital personnel the same version of the rape, although she reportedly told one family member that petitioner raped her. L. H. was interviewed several days after the rape by a psychologist. The interview was videotaped, lasted three hours over two days, and was introduced into evidence at trial. On the tape one can see that L. H. had difficulty discussing the subject of the rape. She spoke haltingly and with long pauses and frequent movement. Early in the interview, L. H. expressed reservations about the questions being asked:

“I’m going to tell the same story. They just want me to change it. . . . They want me to say my Dad did it. . . . I don’t want to say it. . . . I tell them the same, same story.” Def. Exh. D–7, 01:29:07–:36.

She told the psychologist that she had been playing in the garage when a boy came over and asked her about Girl Scout cookies she was selling; and that the boy “pulled [her by the legs to] the backyard,” id., at 01:47:41–:52, where he placed his hand over her mouth, “pulled down [her] shorts,” Def. Exh. D–8, 00:03:11–:12, and raped her, id., at 00:14:39–:40.

Eight days after the crime, and despite L. H.’s insistence that petitioner was not the offender, petitioner was arrested for the rape. The State’s investigation had drawn the accuracy of petitioner and L. H.’s story into question. Though the defense at trial proffered alternative explanations, the case for the prosecution, credited by the jury, was based upon the following evidence: An inspection of the side yard immediately after the assault was inconsistent with a rape having occurred there, the grass having been found mostly undisturbed but for a small patch of coagulated blood. Petitioner said that one of the perpetrators fled the crime scene on a blue 10-speed bicycle but gave inconsistent descriptions of the bicycle’s features, such as its handlebars. Investigators found a bicycle matching petitioner and L. H.’s description in tall grass behind a nearby apartment, and petitioner identified it as the bicycle one of the perpetrators was riding. Yet its tires were flat, it did not have gears, and it was covered in spider webs. In addition police found blood on the underside of L. H.’s mattress. This convinced them the rape took place in her bedroom, not outside the house.

Police also found that petitioner made two telephone calls on the morning of the rape. Sometime before 6:15 a.m., petitioner called his employer and left a message that he was unavailable to work that day. Petitioner called back between 6:30 and 7:30 a.m. to ask a colleague how to get blood out of a white carpet because his daughter had “ ‘just become a young lady.’ ” Brief for Respondent 12.

At 7:37 a.m., petitioner called B & B Carpet Cleaning and requested urgent assistance in removing bloodstains from a carpet. Petitioner did not call 911 until about an hour and a half later.

About a month after petitioner’s arrest L. H. was removed from the custody of her mother, who had maintained until that point that petitioner was not involved in the rape. On June 22, 1998, L. H. was returned home and told her mother for the first time that petitioner had raped her. And on December 16, 1999, about 21 months after the rape, L. H. recorded her accusation in a videotaped interview with the Child Advocacy Center.

The State charged petitioner with aggravated rape of a child under La. Stat. Ann. §14:42 (West 1997 and Supp. 1998) and sought the death penalty. At all times relevant to petitioner’s case, the statute provided:

“A. Aggravated rape is a rape committed . . . where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
. . . . .
“(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
. . . . .
“D. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

“(1) However, if the victim was under the age of twelve years, as provided by Paragraph A(4) of this Section:
“(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury.”

(Since petitioner was convicted and sentenced, the statute has been amended to include oral intercourse within the definition of aggravated rape and to increase the age of the victim from 12 to 13. See La. Stat. Ann. §14:42 (West Supp. 2007).)

Aggravating circumstances are set forth in La. Code Crim. Proc. Ann., Art. 905.4 (West 1997 Supp.). In pertinent part and at all times relevant to petitioner’s case, the provision stated:

“A. The following shall be considered aggravating circumstances:

“(1) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, or simple robbery.
. . . . .
“(10) The victim was under the age of twelve years or sixty-five years of age or older.”

The trial began in August 2003. L. H. was then 13 years old. She testified that she “ ‘woke up one morning and Patrick was on top of [her].’ ” She remembered petitioner bringing her “[a] cup of orange juice and pills chopped up in it” after the rape and overhearing him on the telephone saying she had become a “young lady.” 2005–1981, pp. 12, 15, 16 (La. 5/22/07), 957 So. 2d 757, 767, 769, 770. L. H. acknowledged that she had accused two neighborhood boys but testified petitioner told her to say this and that it was untrue. Id., at 769.

The jury having found petitioner guilty of aggravated rape, the penalty phase ensued. The State presented the testimony of S. L., who is the cousin and goddaughter of petitioner’s ex-wife. S. L. testified that petitioner sexually
abused her three times when she was eight years old and that the last time involved sexual intercourse. Id., at 772. She did not tell anyone until two years later and did not pursue legal action.

The jury unanimously determined that petitioner should be sentenced to death…

But five justices of the Supreme Court think that death is too cruel for the perpetrator.

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