Thursday, April 07, 2005

I see a direct correlation between John Cornyn's argument and that of those who argued that Matthew Shepherd put himself at risk by going to a bar and trying to 'hook up' with a couple of strangers. Most folks who make this argument IN NO WAY endorse the brutal murder (or any violence at all) of Matthew Shepherd nor IN ANY WAY excuse or attempt to mitigate the culpability of the perpetrators. Rather, it addresses the issue of the advisability of putting yourself in danger through risky behaviors. It puts *entirely* to the side the culpability of those who took advantage of Matthew's less-than-safe behavior. Simillarly, Cornyn is concerned that judges are putting themselves at risk through the nature and substance of their decision-making and worries that this may result in more violence. Cornyn is focused on the 'preventative' side of the equation rather than the punishments and judgement of violence after it has been conducted. In fact, implicit to his argument is that this violence *should* be avoided at all costs. And just as a person who fails to put on their seat-belt isn't in any way culpable when a drunk driver hits them, neither does Cornyn argue that judges are culpable for violence perpetrated against them. But just as I might argue that it is wise to wear a seat belt (without mitigating the actions of a drunk driver in the slightest), Cornyn argues that it is wise to avoid what he sees as defective decision-making that has been the proximate cause of violence. I don't endorse Cornyn's view in this case (i.e. I don't agree that his characterization of judicial decision-making is accurate), but what I do think is clear is that his views have NOTHING to do with encouraging or endorsing violence against judges. He sees a trend in decision-making that he thinks is both bad in terms of appropriate judicial behavior *and* possibly increasing the risk of violence against judges (which is necessarily bad). Even if he had not specifically stated that he abhors violence against judges, the distinction is apparent from and implicit in the argument he made.


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