Thursday, June 28, 2018

法官素质和最高法庭的概率问题

安东尼。肯尼迪,最高法庭法官(SCOTUS), 前几天向美国总统提交退休书。 Anthony Kennedy, Supreme Court Justice, announces retirement yesterday.
https://www.wired.com/story/anthony-kennedy-retirement-consequences-for-privacy/

引起巨大反响,可能历史从此改道。
1) 首先,美国宪法对修正案的流程,设下重重障碍:

The US Constitution Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

《道德经》《宪法》并读,这一篇略略写了美国宪法修正案: DDJ 63. 轻诺必寡信,多易必多难
http://taolaw.blogspot.com/2017/05/ddj-63.html

宪法当时立法的时候,美国只有13州。 现在已经50州了。 每个新宪法修正案,都必须" ratified by the Legislatures (or by conventions) of three fourths of the several States".

这就是概率问题。
假设一个修正案a,可以通过一个州立法部门的概率是: p(a).  假设过程是1年。
那么,修正案a, 能够通过3/4所有州的立法部门的概率是什么? P(a)  过程有多长?每一任国会州会众议院议员,任期一般只有2年。 
美国州越来越多(13 -> 50),所以宪法修正案越来越难。
左右两党都清楚这一点。


Since 1999, members of Congress have introduced 747 proposed constitutional amendments, or an average of nearly 75 per two-year term. They have covered dozens of topics, from lengthening House terms (from two to four years) to prohibiting any future attempt to replace the U.S. dollar with a hypothetical global currency. But not one has become part of the Constitution, or even come close. In fact, the last time a proposed amendment gained the necessary two-thirds support in both the House and Senate was 1978, when a measure giving District of Columbia residents voting representation in Congress was sent to the states for ratification. Only 16 states had ratified it when the seven-year time limit expired.
http://www.pewresearch.org/fact-tank/2018/04/12/a-look-at-proposed-constitutional-amendments-and-how-seldom-they-go-anywhere/

左媒 Slate: The U.S. Constitution Is Impossible to Amend
Blame the founders—other countries routinely update their constitutions, but ours may as well be written in stone.
http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/05/amending_the_constitution_is_much_too_hard_blame_the_founders.html

右媒 National Review:The Constitution Is Very Hard to Amend.  And thank goodness.
https://www.nationalreview.com/2018/04/united-states-constitution-difficult-to-amend/


2) 因为修正案的难度, 现代《美国宪法》修正案已经很少通过。 很多宪法注释问题,都依赖最高法庭的9个法官来一锤定音。 再说一遍: 左右双方都遵守美国宪法。 怎样运用宪法的战场,已经转移到了只有9个法官的最高法庭。
https://www.vox.com/explainers/2018/6/28/17512106/anthony-kennedy-retirement-supreme-court-trump


3) 最高法官是终身制,70,80的最高法官比比皆是。 所以为了占领最高法庭,两党总统,都倾向于任命壮年法官,以此能够长期(20年甚至40年)影响政局的渠道。 


这也是为什么美国总统们,4年,8年离任之前,都为了最高法庭出空位,可以在任后通过最高法庭的任命,而长期影响政局而庆贺。

4)因此,最高法庭的9个法官,如果明显偏向左,或者右(离开4/5分布,变成明显的6/3),可能会有不可预知的长期后果。 


人口成分大变化,贫富种族矛盾激化,一些群体没有翻盘希望,革命内战都有可能。 可以学习墨西哥近期的选举相关的动荡。这种暴力”民主“在很多国家是常态。
http://www.latimes.com/world/mexico-americas/la-fg-mexico-candidates-violence-20180627-story.html

结论和预言: 

短期民主党,应该会在2018中期选大胜。 因为美国人注意平衡,且左派是哀兵必胜。
长期来说,华人需要自保自建社区,多培养律师和法官人才。 否则9祸1福。

什么是法官人才?
https://www.apursuitofjustice.com/the-qualities-of-a-good-judge/

《道德经》教育,法官中立的思想非常重要。

The Qualities of a Good Judge
What are the qualities that should be identified and then sought after in an applicant for judicial office? The diverse and balanced Special MSBA Committee which researched and deliberated on this question for two years concluded that the judicial recruitment and selection process should maximize the diversity of each Bench not only as to race, gender and ethnicity, but also as to professional background experience and abilities. Under that umbrella, it then concluded that the following qualities should be sought after in all judicial applicants.

1. Judicial Temperament: This character trait encompasses both the ability to apply the law to the facts and to understand how a judicial decision will affect the human beings appearing before the court. It is the ability to communicate with counsel, jurors, witnesses and parties calmly and courteously, as well as the willingness to listen to and consider what is said on all sides of a debatable proposition.

A candidate should exhibit the following aspects of proper judicial temperament: Patience, open-mindedness, courtesy, tact, courage, punctuality, firmness, understanding, compassion, humility and common sense. Those qualities should be demonstrated consistently. For applicants who already hold a judgeship, these qualities should have consistently manifested themselves to all the court’s “stakeholders” interacting with the judge regardless of station in life, profession, type of case, representation by counsel or lack thereof.

A judicial candidate should be able to exercise forbearance under provocation, to deal with others with sensitivity and without giving offense, and to assimilate data outside the candidate’s experience without bias and without undue difficulty or stress. A candidate should be able to handle personal stress without unloading on others; he or she should recognize that the position is not only stressful but an official governmental position of public trust, with its business conducted largely in full view; and that criticism and scrutiny are inherent in the position. Candidates fearful of or uncertain about these aspects of the job should be counseled to reconsider.

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