With the hearing on Supreme Court nominee Brett Kavanaugh set to begin on September 4, you will hear about something called the precedent. The Democrats want a judge who will always respect the precedent and consider it a sin if he does not.
So, what is a precedent?
The term precedent refers to when a judge interprets the law and describes it with much greater specificity than what was in the original law. After such a ruling, when lawyers argue about the law, they discuss the precedent and forget the actual law. This means that the precedent supersedes the law.
Once the precedent is in place, lawyers no longer look at the actual law. They look at the precedent. They know that judges respect only this precedent, regardless of what the actual law says. They call this process “stare decisis,” which is Latin for “to stand by decisions.” These decisions supersede the law itself. Everyone with a law degree learns this. They must respect this way of thinking or they will not graduate law school.
Kavanaugh has spoken and written that some cases may have been wrongly decided and are worthy of review. Recently, he has said that he will respect precedents. Senate Democrats such as Chuck Schumer do not believe that he will respect precedents. Democrats hope to defeat Kavanaugh in the Senate and continue this legislating from the bench. If they succeed, we are stuck with many errant decisions.
If precedents retain their undeserved status, what does this mean for the layman? The law is not in the law book. It is a decision that a judge made some time between when the law was passed and today. If you need to protect your rights, you must search all decisions ever made to find out if there are any about the law that you believe applies to your situation. This sounds like too much work, so you consider hiring a lawyer. All lawyers are expensive, so you hesitate before going to court. Can you bypass the lawyer and defend yourself? No. If you do, you will cite to the judge the law as written. The judge or your opponent will cite the precedent. You now face an interpretation with which you must cope with no time to prepare. Suppose that you are a quick thinker and observe a flaw in this interpretation. The judge will ignore this flaw. This is how he was trained. Even if he acknowledges this flaw and rules in your favor, the appeals court judge will ignore the flaw and overrule your judge. This will make your judge look bad. This is why your judge is compelled to honor the precedent. This means that the law that we must obey is unknown to us until the moment when the judge makes his ruling.
This chilling situation is also true of constitutional law. Whatever a judge decides about it supersedes the actual words. Usually, constitutional issues go to the Supreme Court. There are no courts above this level, so the Supreme Court has the final word on what the Constitution says. Being able to read the Constitution does you no good.
What does this mean for our country? You will recall the Star Trek episode called “The Omega Glory,” in which a planet was having a civil war between the Yangs (Yankees) and Kohms (Communists). The Yangs, who looked and acted like Native Americans, eventually won and pulled out their constitutional law. Captain Kirk went to read it and the Tribal Elder said “Only the eyes of a chief may see the Ee’d Plebnista.”
Captain Kirk responded, “That which you call Ee’d Plebnista was not written for the chiefs or the kings or the warriors or the rich and powerful, but for all the people! Down the centuries, you have slurred the meaning of the words.” He added, “They must apply to everyone or they mean nothing! Do you understand?”
American people: Do you understand?