US Courts Governing US

Judge of the Ninth Circuit Court of Appeals Diarmuid F. O'Scannlain Under Scrutiny

In an article published in the summer 2010 edition of the Harvard Journal of Law and Public Policy Mr. O'Scannlain wrote an essay entitled "The Role of The Federal Judge under the Constitution; Some Perspectives from the Ninth Circuit".  This essay along with his past history will be scrutinized herein.
The essay is well written and reveals a man of considerable intelligence, maturity and experience in law.  Mr. O'Scannlain was appointed to sit on the Ninth Circuit by conservative president Ronald Reagan in 1986.  The essay brings to light issues that have drawn a fundamental constitutional divide amongst federal judges, i.e. Originalist v. Revisionist, decisions based on law v. decisions based on personal predilections.  The welfare (bleeding heart) judge is prone to ruling out of sympathy.  Mr. O'Scannlain clearly lays out the courts playing field by defining its parameters up front and with explanation, the fields described are 'standing', 'jurisdiction' and 'standard of review'.
To sum up some points, an Originalist aims to be faithful to the original meaning and intent of the Constitution and Declaration of Independence, and generally makes rulings based on literal interpretations.  A revisionist tends to believe the Constitution is a malleable instrument and can be bent and twisted by artfully dissecting and distorting it to achieve some personal or social goal.  Bleeding heart welfare judge will ignore precedence in law if such interferes with what they personally construe justice to be in a given instance.  They usually favor those of hard luck, someone who invokes their emotion concerning unfairness due to that person's unfortunate circumstances or for society being at fault for someone's misfortune.  Originalists tend to base judgment on case law, law established by rulings on prior cases mostly at the appellate and supreme court level.  Rogue judges are those who rule based on their personal predilections as Larry Burns did in the Cross on Mt. Soledad case.  They generally pick and choose parts of this and that law or this and that part of the Constitution, dissect, distort and deviously create new facts or precedence to mischievously create a new reality based on their alchemy.  These judges are generally self-serving crooked opportunists looking out for their own pocket book.
Mr. O'Scannlain portrays himself as a sober conservative, relaxed and comfortable with his world views and interpretation of the Constitution.  Indeed he goes a little overboard on this tack to the point of making himself observable as smug and self-righteous.  However his ruling on the pregnant black woman who was tasered by police while sitting in her car during a traffic stop reveals his overzealous nature in his pure approach to law.  In other words he cannot see the forest because the trees are in his way.   
Mr. O'Scannlain ruled in favor of the cop.  Why?  According to Mr. O'Scannlain the amount of electrical current the woman was given did not cause enough pain to her to rise to the level of being considered 'excessive force'.  Evidence revealed the woman was tasered three times while sitting behind the steering wheel, had burn marks on her neck and thigh and screamed from the pain of being electrocuted.  Why?  She refused to sign the ticket.  She did not threaten harm, had no weapons and in fact was just dropping off her young child at a school.
Mr. O'Scannlain had made a fatal error in this ruling.  As a purist Originalist, conservative and apparent Christian he has failed on all counts due to his inability to see truth and fact.  The fact is inducing pain on a citizen to force compliance on an issue that does not concern a criminal act is immoral and a violation of a citizen's unalienable rights.  His fatal error is not recognizing that a citizen has the natural law right that is unalienable right to be free from punishment for behaving out of concern for preserving one's life, liberty, property and happiness.  In this case the woman was concerned she was signing a document that caused her to acknowledge she did something against the law.  No law stated she needed to sign.  A government employee violated her constitutional rights in a blatant and immoral manner but Mr. O'Scannlain, the Originalist, could not see it violated her unalienable rights.
Mr. O'Scannlain cannot solely be blamed however.  As mentioned earlier in this site the Federal Judiciary has systematically refused to protect citizens' 9th Amendment unalienable rights so Mr. O'Scannlain is following the herd.  In this case had her unalienable rights been recognized and upheld the cop would not have walked nor would any cop or other government employee ever again walk away scot free from abusing citizens.
As can be ascertained from Mr. O'Scannlain essay the role of a judge is to uphold the Constitution, protect citizens' constitutional rights and do so in a manner that is unbiased, based on precedence in law and interpretation of the Constitution as close as possible to the Founders' intent. However Mr. O'Scannlain has failed.  The Founders clearly intended the government to have very limited authority, which is why the Constitution clearly defines the length and breadth and limits of authority.  The keyword is however authority, they did not give rights because rights cannot be given to a governing body, a non-corporal entity.  Rights are exclusively associated with human beings.  Rights are not given by man.  Rights were given to man by God and the Founders intended for those rights to be retained by the people as indicated in the 9th Amendment.  Government has authority, people have rights.  The Founders intended for authority to be protected in so far as what is specified in the Constitution as the manner to protect authority.  The Declaration of Independence clearly indicates that when government abuses or takes away people's rights they have invaded and violated the exclusive domain of the people.  It also states that if a long train of abuse of rights continues on with a perceptible aim at reducing people to live under tyranny (cruel use of power and usurpation of rights) the people who of a majority agree to cast off such tyranny retain the right to do so as Judge Bork so aptly pointed out the right of majority.  In other words in this scenario rights have power over authority.  Mr. O'Scannlain failed to understand that failure to uphold the black pregnant mother's and her unborn child's unalienable rights was a failure to uphold the Constitution in meaning and intent, in toto, in re.
The Federal Judiciary's failure to uphold citizens' unalienable rights puts the judges in open defiance of the Constitution and in defiance of the best interest of, and the will of, the people.
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