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I've seen this brought up quite a lot, but to me, a Chinese national, it's confusing how judiciary branch is independent. Didn't Trump nominate the supreme cou

I've seen this brought up quite a lot, but to me, a Chinese national, it's confusing how judiciary branch is independent. Didn't Trump nominate the supreme court justice? And isn't the nomination confirmed by congress? What about the constant conservative vs democrat number battle in the supreme court? Also, didn't Trump himself say that he can intervene in Ms. Meng's case? Edit: Great. Thanks for the downvotes as answers. Now I have a better understanding of how things work in the US.

wisdomoftheages 8y ago
The executive nominates judges, but they hold tenure for life and after confirmation operate with complete independence as a separate branch of government with their own budget etc. The Supreme Court is also irrelevant to this because they do not initiate investigations, they do not oversee prosecutors, and they do not administer the justice system. They only hear cases about Constitutional issues - not criminal issues, so unless there's a constitutional dispute a case has no chance of reaching them. Judges in general do not oversee or initiate prosecutions, U.S. attorneys do. They're also appointed by the executive, but they operate independently and while, subject to Congressional oversight, he can fire some of them (but not the permanent civil servants who are the bulk of the staff), he cannot directly order them to do anything. In any case, an investigation of this complexity almost certainly started under Obama, just because they tend to take many years to reach the stage where charges are filed. Trump frequently claims to have powers that he does not have. He has said many times that he is going to do something only to find that he cannot actually do it, and so it hasn't been done.
wybiral 8y ago
Trump says a lot of things but the system is actually more balanced than the power-play media show makes it seem.
JumpCrisscross 8y ago
> Didn't Trump nominate the supreme court justice? Independent, not sovereign [1]. The branches can check each other, but a judge over whom the President has pretty much zero power will decide if Ms. Meng is guilty or not. For example, one of Trump's nominees recently voted to keep existing case law regarding Planned Parenthood in place [2]. This disappointed conservatives. But there isn't anything the President can do except complain about it. > didn't Trump himself say that he can intervene in Ms. Meng's case? Trump says lots of things. His Justice Department can decide whether or not to bring the case. That's prosecutorial discretion, and it's devastatingly powerful. But in the end, if Ms. Meng is to be convicted, an independent judge presiding over a jury must agree with their case. (It's not all rosy. The U.S. federal conviction rate is over 90% [3]. Better than China's 99.9%, but nothing to phone home about.) [1] https://en.wikipedia.org/wiki/Judicial_independence https://en.wikipedia.org/wiki/Judicial_independence [2] https://www.economist.com/democracy-in-america/2018/12/12/why-did-justice-kavanaugh-take-a-pass-on-two-planned-parenthood-cases https://www.economist.com/democracy-in-america/2018/12/12/wh... [3] https://en.wikipedia.org/wiki/Conviction_rate#United_States https://en.wikipedia.org/wiki/Conviction_rate#United_States [4] https://qz.com/246696/chinas-criminal-conviction-rate-is-99-9/ https://qz.com/246696/chinas-criminal-conviction-rate-is-99-... Side note: You asked an honest question. It's ridiculous you're getting downvoted.
- paraditedc 8y ago
  Well things just got more ridiculous now that your comment is being downvoted. HN is weird sometimes.
  - abc-xyz 8y ago
    Whenever you post something negative towards China then your post usually end up at -2 ~ -5 before slowly climbing up again. I personally don't care about karma but I do care about text becoming less readable, so it's unfortunate that it's so easy to game the system.
- burfog 8y ago
  High conviction rates are not bad. A low rate would likely mean that lots of innocent people are being made to face trial. Alternately, it could be a sign of incompetence. It is easy to make the rate low: prosecute based on mere suspicion, or have the prosecutor be a person who barely graduated from law school.
barry-cotter 8y ago
If a judge in China gets told to do something by someone above him in the CPC the judge will write a plausible or not so plausible legal opinion justifying what they were told to do. There is unlikely to be any explicit paper trail and from the outside you might confuse the Potemkin legal system for that of a Rechtstaat, where the government is, at least theoretically, bound by laws. In the US or Canada the government can interfere in the judicial process for reasons of national security and that’s really it. If Trump, Obama, Bush, Clinton or any of the others called up a Supreme Court Justice and tried to tell them what to do they’d get told, politely or not, to go take a running jump. The government’s lawyers can make an application for evidence to be sealed from public view if it’s classified, or they can ask that a prosecution be aborted for reasons of national security. The big difference is that things do not work on the basis of discretion or chain of command. If the sub mayor of Baoshan District Shanghai tells a police officer to cover up a murder or charge a foreigner with drugs offences because they broke up with the sub mayor’s daughter it will happen. If Trump tries to shut down the Huawei investigation for national security reasons the court could listen to his justifications and say no.
gpm 8y ago
> Didn't Trump nominate the supreme court justice Yes, nominating judges is basically the extent to which the judiciary is not independent, nominated justices are very much expected to act independently and without regards to who nominated them. Some examples of what Trump and Congress cannot do would be removing someone from the court, forcing the court to rule in a certain way, and so on. > Also, didn't Trump himself say that he can intervene in Ms. Meng's case? Trump regularly claims to be able to do things he can't in my experience - but yes. Trump can, perhaps, intervene in choosing not to prosecute Ms. Meng for a crime she did in fact commit. That's because how a court case works in the US is two sides argue their case to a judge. The judge is part of the judicial branch, but the side of the case representing the government is the executive branch of the government, which Trump is the head of. Prosecutors (the part of the executive branch that prosecutes people) have discretion towards which crimes they prosecute. With most prosecutions the president actually influencing the use of that power would probably be near impossible (but likely legal), extradition is more political as I understand it so he might actually be able to do so. What Trump can't do is influence how that judges will react to the prosecution. If Ms. Meng did not commit a crime she will be found innocent (and indeed, if the government can't show that she committed a crime in a public trial with legally gathered evidence beyond a reasonable doubt). If the government can be shown to be knowingly maliciously prosecuting her despite her being innocent the attorney's involved will be sanctioned and she can likely sue the government for significant sums of money. > What about the constant conservative vs democrat number battle in the supreme court? This is basically entirely an unrelated internal politics thing. The US constitution is a rather vague document really, and as such there are some different interpretations. One party would prefer one set, another party would prefer another set, and they both try and nominate supreme court justices that will agree with their set. This has to do with things like "does the second amendment protect carrying handguns or just owning them". A "democratic" justice isn't going to be ruling on things because one side of a case is a democratic or anything like that.
sbmthakur 8y ago
> Didn't Trump nominate the supreme court justice? And isn't the nomination confirmed by congress? What about the constant conservative vs democrat number battle in the supreme court? I am not from the US but another democratic country. So I think I can provide an answer. Being nominated(in democracies) doesn't imply that they've to play by the nominator's rules. In democracies, all branches of the Government have to work by the constitution(unlike in China where they are answerable to the Party). For example, in India, the judge of the Supreme Court is appointed by the President(head of the executive) who is essentially just a figurehead for the legislature(or the Parliament). So, indirectly the legislature nominates the Supreme court judge but Supreme court occasionally strikes down laws that it finds unconstitutional. > Also, didn't Trump himself say that he can intervene in Ms. Meng's case? Not sure about this but the executive/legislature often has powers to overturn the Supreme court's decisions. In India, the legislature often passes laws that by bypass/overturn Supreme court's decisions. In the case of the US, I think the President can do this as the US is essentially a Presidential form of government.
- deleted 8y ago
  [deleted]
- rgbrenner 8y ago
  That's not the way things work in the US. First, the president is not a figurehead of the legislature. He's the head of a separate branch of government called the executive... which also contains all US agencies: DOJ, NASA, HUD, CIA, BLM, SEC, etc. He nominates judges, and the legislature (which is its own branch) decides if they agree with his picks (by voting in the senate). Similarly, he nominates people to oversee each division in the executive branch, and the senate confirms those people also. The people he nominates are in charge of their division. He can't go to the DOJ and demand they drop cases... that's a crime called obstruction of justice. Constitutional cases are heard by the supreme court (but Meng's case isn't one of those).. but if the president does not like their decision, he can't do anything himself about it. There are only two ways to change the constitution: by getting 2/3rds of the 50 states to agree to the change (very hard, long process that usually takes much longer than the president's term.. rarely attempted); or by nominating judges to the supreme court who favor a different interpretation. On the second part, there are a few road blocks too: whoever he picks must be confirmed by the senate. Once they are confirmed, it's a lifetime appointment. So if you look at the current court, you can see the current judges were nominated by 5 different presidents over 30 years. Since he needs to wait for one of these judges to retire, the president's picks will always be a minority on the court. He has no way of knowing when or if someone will retire. He'll only get a couple of chances to nominate a judge during his term (presidents serve max 2 terms of 4 years). The legislature and president can change laws (sometimes those changes are the result of court decisions), but they don't change the court's decisions. Just their future decisions. Also laws can't override the constitution. And there are limits to the laws they can pass.. they can't for example make things illegal retroactively. Also, I should add, the president can be imprisoned for violating the law. If he obstructs justice, he can impeached by the legislature and removed from office. He can then be prosecuted for the crimes he's committed. It's very unlikely though, because in the past, the vice president (who replaces the president after he's removed) can pardon the president for his crimes.
sjellis 8y ago
> Didn't Trump nominate the supreme court justice? And isn't the nomination confirmed by congress? What about the constant conservative vs democrat number battle in the supreme court? There's deliberately limited legal ability for the legislature or the executive to influence or impose penalties on a serving judge, and the rule of law means that the president can't apply extra-legal pressure either. A judge could removed from office for really extreme or criminal behaviour, but that's considered extraordinary. Day-to-day, judges can rule against governments and politicians without any fear of reprisals. The selection process just weeds out people who are likely to frequently make such rulings.
deleted 8y ago
[deleted]
ardy42 8y ago
> I've seen this brought up quite a lot, but to me, a Chinese national, it's confusing how judiciary branch is independent. I'm an American, but I have a Chinese friend who liked the 近距离看美国 series of books by 林达 as an explanation of the American system for a Chinese audience.
- paraditedc 8y ago
  Thanks for the suggestion. Gonna pick it up soon!

wisdomoftheages 8y ago

The executive nominates judges, but they hold tenure for life and after confirmation operate with complete independence as a separate branch of government with their own budget etc. The Supreme Court is also irrelevant to this because they do not initiate investigations, they do not oversee prosecutors, and they do not administer the justice system. They only hear cases about Constitutional issues - not criminal issues, so unless there's a constitutional dispute a case has no chance of reaching them. Judges in general do not oversee or initiate prosecutions, U.S. attorneys do. They're also appointed by the executive, but they operate independently and while, subject to Congressional oversight, he can fire some of them (but not the permanent civil servants who are the bulk of the staff), he cannot directly order them to do anything. In any case, an investigation of this complexity almost certainly started under Obama, just because they tend to take many years to reach the stage where charges are filed. Trump frequently claims to have powers that he does not have. He has said many times that he is going to do something only to find that he cannot actually do it, and so it hasn't been done.

wybiral 8y ago

Trump says a lot of things but the system is actually more balanced than the power-play media show makes it seem.

JumpCrisscross 8y ago

> Didn't Trump nominate the supreme court justice? Independent, not sovereign [1]. The branches can check each other, but a judge over whom the President has pretty much zero power will decide if Ms. Meng is guilty or not. For example, one of Trump's nominees recently voted to keep existing case law regarding Planned Parenthood in place [2]. This disappointed conservatives. But there isn't anything the President can do except complain about it. > didn't Trump himself say that he can intervene in Ms. Meng's case? Trump says lots of things. His Justice Department can decide whether or not to bring the case. That's prosecutorial discretion, and it's devastatingly powerful. But in the end, if Ms. Meng is to be convicted, an independent judge presiding over a jury must agree with their case. (It's not all rosy. The U.S. federal conviction rate is over 90% [3]. Better than China's 99.9%, but nothing to phone home about.) [1] https://en.wikipedia.org/wiki/Judicial_independence https://en.wikipedia.org/wiki/Judicial_independence [2] https://www.economist.com/democracy-in-america/2018/12/12/why-did-justice-kavanaugh-take-a-pass-on-two-planned-parenthood-cases https://www.economist.com/democracy-in-america/2018/12/12/wh... [3] https://en.wikipedia.org/wiki/Conviction_rate#United_States https://en.wikipedia.org/wiki/Conviction_rate#United_States [4] https://qz.com/246696/chinas-criminal-conviction-rate-is-99-9/ https://qz.com/246696/chinas-criminal-conviction-rate-is-99-... Side note: You asked an honest question. It's ridiculous you're getting downvoted.

paraditedc 8y ago
Well things just got more ridiculous now that your comment is being downvoted. HN is weird sometimes.
- abc-xyz 8y ago
  Whenever you post something negative towards China then your post usually end up at -2 ~ -5 before slowly climbing up again. I personally don't care about karma but I do care about text becoming less readable, so it's unfortunate that it's so easy to game the system.
burfog 8y ago
High conviction rates are not bad. A low rate would likely mean that lots of innocent people are being made to face trial. Alternately, it could be a sign of incompetence. It is easy to make the rate low: prosecute based on mere suspicion, or have the prosecutor be a person who barely graduated from law school.

barry-cotter 8y ago

If a judge in China gets told to do something by someone above him in the CPC the judge will write a plausible or not so plausible legal opinion justifying what they were told to do. There is unlikely to be any explicit paper trail and from the outside you might confuse the Potemkin legal system for that of a Rechtstaat, where the government is, at least theoretically, bound by laws. In the US or Canada the government can interfere in the judicial process for reasons of national security and that’s really it. If Trump, Obama, Bush, Clinton or any of the others called up a Supreme Court Justice and tried to tell them what to do they’d get told, politely or not, to go take a running jump. The government’s lawyers can make an application for evidence to be sealed from public view if it’s classified, or they can ask that a prosecution be aborted for reasons of national security. The big difference is that things do not work on the basis of discretion or chain of command. If the sub mayor of Baoshan District Shanghai tells a police officer to cover up a murder or charge a foreigner with drugs offences because they broke up with the sub mayor’s daughter it will happen. If Trump tries to shut down the Huawei investigation for national security reasons the court could listen to his justifications and say no.

gpm 8y ago

> Didn't Trump nominate the supreme court justice Yes, nominating judges is basically the extent to which the judiciary is not independent, nominated justices are very much expected to act independently and without regards to who nominated them. Some examples of what Trump and Congress cannot do would be removing someone from the court, forcing the court to rule in a certain way, and so on. > Also, didn't Trump himself say that he can intervene in Ms. Meng's case? Trump regularly claims to be able to do things he can't in my experience - but yes. Trump can, perhaps, intervene in choosing not to prosecute Ms. Meng for a crime she did in fact commit. That's because how a court case works in the US is two sides argue their case to a judge. The judge is part of the judicial branch, but the side of the case representing the government is the executive branch of the government, which Trump is the head of. Prosecutors (the part of the executive branch that prosecutes people) have discretion towards which crimes they prosecute. With most prosecutions the president actually influencing the use of that power would probably be near impossible (but likely legal), extradition is more political as I understand it so he might actually be able to do so. What Trump can't do is influence how that judges will react to the prosecution. If Ms. Meng did not commit a crime she will be found innocent (and indeed, if the government can't show that she committed a crime in a public trial with legally gathered evidence beyond a reasonable doubt). If the government can be shown to be knowingly maliciously prosecuting her despite her being innocent the attorney's involved will be sanctioned and she can likely sue the government for significant sums of money. > What about the constant conservative vs democrat number battle in the supreme court? This is basically entirely an unrelated internal politics thing. The US constitution is a rather vague document really, and as such there are some different interpretations. One party would prefer one set, another party would prefer another set, and they both try and nominate supreme court justices that will agree with their set. This has to do with things like "does the second amendment protect carrying handguns or just owning them". A "democratic" justice isn't going to be ruling on things because one side of a case is a democratic or anything like that.

sbmthakur 8y ago

> Didn't Trump nominate the supreme court justice? And isn't the nomination confirmed by congress? What about the constant conservative vs democrat number battle in the supreme court? I am not from the US but another democratic country. So I think I can provide an answer. Being nominated(in democracies) doesn't imply that they've to play by the nominator's rules. In democracies, all branches of the Government have to work by the constitution(unlike in China where they are answerable to the Party). For example, in India, the judge of the Supreme Court is appointed by the President(head of the executive) who is essentially just a figurehead for the legislature(or the Parliament). So, indirectly the legislature nominates the Supreme court judge but Supreme court occasionally strikes down laws that it finds unconstitutional. > Also, didn't Trump himself say that he can intervene in Ms. Meng's case? Not sure about this but the executive/legislature often has powers to overturn the Supreme court's decisions. In India, the legislature often passes laws that by bypass/overturn Supreme court's decisions. In the case of the US, I think the President can do this as the US is essentially a Presidential form of government.

deleted 8y ago
[deleted]
rgbrenner 8y ago
That's not the way things work in the US. First, the president is not a figurehead of the legislature. He's the head of a separate branch of government called the executive... which also contains all US agencies: DOJ, NASA, HUD, CIA, BLM, SEC, etc. He nominates judges, and the legislature (which is its own branch) decides if they agree with his picks (by voting in the senate). Similarly, he nominates people to oversee each division in the executive branch, and the senate confirms those people also. The people he nominates are in charge of their division. He can't go to the DOJ and demand they drop cases... that's a crime called obstruction of justice. Constitutional cases are heard by the supreme court (but Meng's case isn't one of those).. but if the president does not like their decision, he can't do anything himself about it. There are only two ways to change the constitution: by getting 2/3rds of the 50 states to agree to the change (very hard, long process that usually takes much longer than the president's term.. rarely attempted); or by nominating judges to the supreme court who favor a different interpretation. On the second part, there are a few road blocks too: whoever he picks must be confirmed by the senate. Once they are confirmed, it's a lifetime appointment. So if you look at the current court, you can see the current judges were nominated by 5 different presidents over 30 years. Since he needs to wait for one of these judges to retire, the president's picks will always be a minority on the court. He has no way of knowing when or if someone will retire. He'll only get a couple of chances to nominate a judge during his term (presidents serve max 2 terms of 4 years). The legislature and president can change laws (sometimes those changes are the result of court decisions), but they don't change the court's decisions. Just their future decisions. Also laws can't override the constitution. And there are limits to the laws they can pass.. they can't for example make things illegal retroactively. Also, I should add, the president can be imprisoned for violating the law. If he obstructs justice, he can impeached by the legislature and removed from office. He can then be prosecuted for the crimes he's committed. It's very unlikely though, because in the past, the vice president (who replaces the president after he's removed) can pardon the president for his crimes.

sjellis 8y ago

> Didn't Trump nominate the supreme court justice? And isn't the nomination confirmed by congress? What about the constant conservative vs democrat number battle in the supreme court? There's deliberately limited legal ability for the legislature or the executive to influence or impose penalties on a serving judge, and the rule of law means that the president can't apply extra-legal pressure either. A judge could removed from office for really extreme or criminal behaviour, but that's considered extraordinary. Day-to-day, judges can rule against governments and politicians without any fear of reprisals. The selection process just weeds out people who are likely to frequently make such rulings.

deleted 8y ago

[deleted]

ardy42 8y ago

> I've seen this brought up quite a lot, but to me, a Chinese national, it's confusing how judiciary branch is independent. I'm an American, but I have a Chinese friend who liked the 近距离看美国 series of books by 林达 as an explanation of the American system for a Chinese audience.

paraditedc 8y ago
Thanks for the suggestion. Gonna pick it up soon!