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This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took powe

by jariel 6y ago

This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took power by the previous governments anti-constitutional actions of trying to appoint Constitutional Court judges ahead of the end of their terms. For a summary of events: [1] Imagine if Barack Obama / George Bush decided to go ahead and punt some SCOTUS members ahead of the end of their terms, because they were afraid they were going to lose his upcoming elections? Imagine what what the consequences would be. 'Law and Justice' , after having won elections came in and did some nasty things (which you point out) and were sanctioned by the EU for it, however, it's hypocritical that the group that initially broke the law on a very fundamental issue were not also sanctioned. I don't remotely support any of this, but it's important to consider that this didn't just happen out of thin air. This 'free speech' bill is an interesting political issue, I wonder how much of this is pointed at the local population, or how much of it is trying to obtain some populist goodwill in other EU nations ... or if it's trying to gain some kind of 'moral high ground' leverage in their current 'issues' with the EU. [1] https://en.wikipedia.org/wiki/2015_Polish_Constitutional_Court_crisis https://en.wikipedia.org/wiki/2015_Polish_Constitutional_Cou...

dan-robertson 6y ago
Well Obama did ask Bader-Ginsburg to step down when democrats had control of the senate (I think she’d only had cancer once at the time), but I guess you’re referring to something stronger than just asking judges to step down. I feel like the US Supreme Court nomination system only works through a combination of frequent changes of power and most judges believing in the system and following the unwritten part of the constitution, and that the US example isn’t really a good one to copy in other democracies.
- xyzzyz 6y ago
  What happened is roughly this: in Poland's Constitutional Tribunal (which is as close of an equivalent of US Supreme Court as you can get in a country with a civil law system), the judges are not elected for life, but only for fixed term. As the term of the elected government was coming to an end, so were the terms of 5 of the justices in the Tribunal. However, two of these terms ended within the elected government's term, and three after it ended. As a result, the ruling party (PO) had a clear right to nominate 2 justices, and hardly any right to nominate the other three. It decided to nominate all 5 nevertheless. The party that won the subsequent election, PiS, refused to recognize any of the 5 justices nominated by PO, and nominated 5 of their own. What happened afterwards you can read in the Wikipedia article.
  - didibus 6y ago
    Did both of those things happen through some loophole? Or is the elected party just able to kind of do whatever they want unstopped?
    - xyzzyz 6y ago
      As far as I can tell, neither of these actions was based on any “loophole”. However, the nature of the rule of law is that it only works as long as everyone plays by the rules. When the government decides it does no longer has to play by the rules, there isn’t much that can be done to oppose them, as they still hold all the power, and are presumed to hold political authority.
user982 6y ago
> Imagine if Barack Obama decided to go ahead and punt some SCOTUS members ahead of the end of their terms, because he was afraid he was going to lose his upcoming elections? Imagine if Barack Obama had Supreme Court appointments blocked by Republicans on constitutionally flimsy grounds that were immediately ignored when the Trump administration was in identical situations. Would any "nasty things" done by a future Democrat administration then be laid at the feet of this original malfeasance, forevermore, or would it be misrepresentation not to mention it?
seba_dos1 6y ago
> This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took power by the previous governments flagrant anti-constitutional actions of trying to appoint Supreme Court Judges ahead of the end of their terms. It was the Constitutional Court, not Supreme Court. Also, no, not really - that didn't start the crisis in any reasonable meaning of that word. In a correctly functioning democracy that would simply be blocked by Constitutional Court, and that's in fact exactly what happened. The problem started when currently ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government. Of course the Constitutional Court deemed that unconstitutional, but that didn't stop the ruling party at all, and the rest is history.
- jariel 6y ago
  "Also, no, not really - that didn't start the crisis in any reasonable meaning of that word." The entire world disagrees with this. The issue, in public, is very clear - actions by the the previous government in the summer of 2015 were declared anti-constitutional, and later actions highly undemocratic. There is no doubt that this was the 'start of the crisis' by any objective measure. It doesn't matter how much we may not like certain 'current authorities' - History is History - people should stop trying to rewrite it to suit their narrative. Suppressing these unfortunate events is not going to help anyone's cause in the long run.
- mamon 6y ago
  > ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government The problem is that previous government broke the law in more than one way: 1. They appointed more judges that they were allowed to. 2. They did appoint all those judges by means of single parliamentary resolution, despite the fact that Polish Constitution clearly requires voting for each judge separately. Given those two points NONE of the judges was appointed lawfully, and there was no other way forward than repeal the whole resolution, therefore removing all 5 unlawfully appointed judges.
  - 6y ago
space_fountain 6y ago
So in keeping with the law at the time (well the law they passed), they elected 5 justices to replace up coming vacancies. Later it was ruled that 2 of those nominations were unconstitutional (I think because they were for justices who's terms expired after the new legislature was seated), but the newly elected Law and Justice government refused to seat any of them and elected their own slate of 5 justices. When the constitutional tribunal refused to include those 5 justices until the dispute was resolved, rather than back down the new government raised the threshold to conduct business so that the new justices would have to be included and even worse chose to interpret a clause requiring a majority to mean a supper majority and gave themselves the power to remove justices. The constitutional tribunal ruled this new law unconstitutional, but because that ruling was not made under the new rules introduced by the again according to them unconstitutional law the new government ignored it. It's one thing to pass unconstitutional laws and quite another to pass unconstitutional laws and refuse to listen to listen when you're called out on them
- jariel 6y ago
  This is all fine and good - but the previous governments 'changing of the law' governing Judicial appointments, and then controversially 'stacking the court' to 14 out of 15 appointments in their favour, is clearly the first salvo in a constitutional war. There is no doubt. It doesn't matter that 'we don't like the jerks in charge' or that 'they've done bad stuff' - the fact is the crisis was obviously initiated before they came to power. Much like pretty much everyone here hates Trump (I certainly do), but he was unfairly castigated in the press with the 'Mueller investigations' which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians. If either side in in the US tried to pull what the previous Polish government did - it would set off major events, possibly conflict, worse than what we're seeing today for sure.
  - joshuamorton 6y ago
    > which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians. This is quite literally the opposite of the stated conclusion of the Muller investigation. It's not clear to me how you get "absolved him from any Russia shenanigans". There were clear links between the campaign and Russia (up to and including Trump Jr. meeting with a Russian Lawyer for "dirt" on the Clinton campaign), likely in return for changes to the Magnitsky act. That's all plainly stated in the muller report. He ultimately didn't charge them because while there may have been intent to collude, it didn't pan out.

by jariel 6y ago

dan-robertson 6y ago

Well Obama did ask Bader-Ginsburg to step down when democrats had control of the senate (I think she’d only had cancer once at the time), but I guess you’re referring to something stronger than just asking judges to step down. I feel like the US Supreme Court nomination system only works through a combination of frequent changes of power and most judges believing in the system and following the unwritten part of the constitution, and that the US example isn’t really a good one to copy in other democracies.

xyzzyz 6y ago
What happened is roughly this: in Poland's Constitutional Tribunal (which is as close of an equivalent of US Supreme Court as you can get in a country with a civil law system), the judges are not elected for life, but only for fixed term. As the term of the elected government was coming to an end, so were the terms of 5 of the justices in the Tribunal. However, two of these terms ended within the elected government's term, and three after it ended. As a result, the ruling party (PO) had a clear right to nominate 2 justices, and hardly any right to nominate the other three. It decided to nominate all 5 nevertheless. The party that won the subsequent election, PiS, refused to recognize any of the 5 justices nominated by PO, and nominated 5 of their own. What happened afterwards you can read in the Wikipedia article.
- didibus 6y ago
  Did both of those things happen through some loophole? Or is the elected party just able to kind of do whatever they want unstopped?
  - xyzzyz 6y ago
    As far as I can tell, neither of these actions was based on any “loophole”. However, the nature of the rule of law is that it only works as long as everyone plays by the rules. When the government decides it does no longer has to play by the rules, there isn’t much that can be done to oppose them, as they still hold all the power, and are presumed to hold political authority.

user982 6y ago

> Imagine if Barack Obama decided to go ahead and punt some SCOTUS members ahead of the end of their terms, because he was afraid he was going to lose his upcoming elections? Imagine if Barack Obama had Supreme Court appointments blocked by Republicans on constitutionally flimsy grounds that were immediately ignored when the Trump administration was in identical situations. Would any "nasty things" done by a future Democrat administration then be laid at the feet of this original malfeasance, forevermore, or would it be misrepresentation not to mention it?

seba_dos1 6y ago

> This comment misrepresents the situation by failing to indicate that the 'Constitutional Crisis' started before the current Law and Justice government took power by the previous governments flagrant anti-constitutional actions of trying to appoint Supreme Court Judges ahead of the end of their terms. It was the Constitutional Court, not Supreme Court. Also, no, not really - that didn't start the crisis in any reasonable meaning of that word. In a correctly functioning democracy that would simply be blocked by Constitutional Court, and that's in fact exactly what happened. The problem started when currently ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government. Of course the Constitutional Court deemed that unconstitutional, but that didn't stop the ruling party at all, and the rest is history.

jariel 6y ago
"Also, no, not really - that didn't start the crisis in any reasonable meaning of that word." The entire world disagrees with this. The issue, in public, is very clear - actions by the the previous government in the summer of 2015 were declared anti-constitutional, and later actions highly undemocratic. There is no doubt that this was the 'start of the crisis' by any objective measure. It doesn't matter how much we may not like certain 'current authorities' - History is History - people should stop trying to rewrite it to suit their narrative. Suppressing these unfortunate events is not going to help anyone's cause in the long run.
mamon 6y ago
> ruling party replaced not only the extraneous judges, but also those judges who were lawfully supposed to be appointed by previous government The problem is that previous government broke the law in more than one way: 1. They appointed more judges that they were allowed to. 2. They did appoint all those judges by means of single parliamentary resolution, despite the fact that Polish Constitution clearly requires voting for each judge separately. Given those two points NONE of the judges was appointed lawfully, and there was no other way forward than repeal the whole resolution, therefore removing all 5 unlawfully appointed judges.
- 6y ago

space_fountain 6y ago

So in keeping with the law at the time (well the law they passed), they elected 5 justices to replace up coming vacancies. Later it was ruled that 2 of those nominations were unconstitutional (I think because they were for justices who's terms expired after the new legislature was seated), but the newly elected Law and Justice government refused to seat any of them and elected their own slate of 5 justices. When the constitutional tribunal refused to include those 5 justices until the dispute was resolved, rather than back down the new government raised the threshold to conduct business so that the new justices would have to be included and even worse chose to interpret a clause requiring a majority to mean a supper majority and gave themselves the power to remove justices. The constitutional tribunal ruled this new law unconstitutional, but because that ruling was not made under the new rules introduced by the again according to them unconstitutional law the new government ignored it. It's one thing to pass unconstitutional laws and quite another to pass unconstitutional laws and refuse to listen to listen when you're called out on them

jariel 6y ago
This is all fine and good - but the previous governments 'changing of the law' governing Judicial appointments, and then controversially 'stacking the court' to 14 out of 15 appointments in their favour, is clearly the first salvo in a constitutional war. There is no doubt. It doesn't matter that 'we don't like the jerks in charge' or that 'they've done bad stuff' - the fact is the crisis was obviously initiated before they came to power. Much like pretty much everyone here hates Trump (I certainly do), but he was unfairly castigated in the press with the 'Mueller investigations' which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians. If either side in in the US tried to pull what the previous Polish government did - it would set off major events, possibly conflict, worse than what we're seeing today for sure.
- joshuamorton 6y ago
  > which de-facto absolved him of any Russian shenanigans. It doesn't matter that he lies about election results - he was not colluding with Russians. This is quite literally the opposite of the stated conclusion of the Muller investigation. It's not clear to me how you get "absolved him from any Russia shenanigans". There were clear links between the campaign and Russia (up to and including Trump Jr. meeting with a Russian Lawyer for "dirt" on the Clinton campaign), likely in return for changes to the Magnitsky act. That's all plainly stated in the muller report. He ultimately didn't charge them because while there may have been intent to collude, it didn't pan out.