The Fouse Report: 27 Jun 08

Justice Anthony Kennedy-Is He the Most Powerful Man in America?

The Supreme Court Child-Rape Ruling

By Gary Fouse

http://garyfouse.blogspot.com/

Friday, June 27, 2008

In the past few days, the US Supreme Court ruled in Kennedy vs Louisiana that no state may sentence a convicted child rapist to death. As usual, the decision was a 5-4 vote, with the 4 liberal justices lined up against the 4 conservative justices. The deciding vote? Anthony Kennedy, of course.

For those of you who don't follow the make-up of the Supreme Court (which everyone should), the 4 liberal justices are; John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter. The 4 conservatives who dissented were Clarence Thomas, Antonin Scalia, Sam Alito and John Roberts. Anthony Kennedy, who is the one swing vote on the Court, sided with the majority and wrote the majority opinion. As Bill O'Reilly and Laura Ingraham opined last night, Kennedy may well now be the most powerful man in America.

And what did the majority base its legal ruling on? Incredibly, they based it on "evolving standards of decency"..."Based on both consensus (among state legislatures) and our own independent judgement, our holding is that a death sentence for one who raped but not kill a child...is unconstitutional under the 8th and 14th Amendments." Where in the Constitution did they find that reasoning? What consensus in state legislatures are they talking about? Does that mean that the elected officials in all state legislatures all are against the death penalty for child rapists? Even if so, what connection is that to the Constitution?

Then there is this statement: "Society's desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of a mature age to make that choice."

In dissenting, Samuel Alito, joined by Scalia and Thomas, demonstrated why they were solid choices to sit on the Supreme Court. Thomas writes, "The court today holds that the 8th Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be." (In the Kennedy case in Louisiana, the defendant, who raped his step-daughter, indeed, nearly killed her in the process.)

Finally, this comment: "Once all of the court's irrelevant arguments are put aside, it is apparent that the court has provided no coherent explanation for today's opinion."

When I was 14, the State of California (back in a different era) executed one Caryl Chessman, who had raped a series of young women leaving one of his victims severely psychologically damaged. (No one died, but one element of his crime that made him eligible for the death penalty involved kidnapping.) After years of appeals and stays of execution, Chessman was executed in California's gas chamber at San Quentin Prison in 1960. That was almost 50 years ago. Had Chessman had the good fortune of committing his crimes today in Massachusetts or Vermont (two states notoriously lenient when it comes to child rape), he might have served a minimal time in jail-even if his victims had been small children. (To repeat, Chessman's victims were not children, but young women.)

Is this the evolving standard of decency that Judge Kennedy refers to? What decency is there in taking a less condemning view of child rape?

This case illustrates why presidential elections are so vitally important. It is not just about taxes, health care, bringing the troops home and all that. The next president will probably select not only 2-3 Supreme Court judges, but a large number of federal judges as well. As a retired DEA agent I well recall the disasterous judges that Jimmy Carter and Bill Clinton appointed to the federal bench. Is there any doubt that Barack Obama will do the same? Those conservatives out there who are dissatisfied with John McCain as the nominee should think long and hard before sitting out the election.