Friday, September 16, 2005

Friends Don't Let Friends Watch "The Point"

Hyman squanders another precious couple of minutes of your airtime going over a story that’s more than a month old; this time, he’s upset about a judge who ruled that it was unconstitutional to presume someone drunk given a certain blood alcohol level, since people have different tolerances.

Yes, the ruling seems a bit silly. After all, the law regarding drunk driving makes the act of driving with an alcohol level above a certain defined point to be illegal; to my knowledge, no state defines drunk driving by proving precisely how incapacitated someone is.

But Hyman distorts the situation by saying that the judge who made the ruling determined that the defendant in question was not drunk. In fact, the judge was simply ruling that since we all have the presumption of innocence, it’s unconstitutional to presume guilt based on the reading of a breathalyzer.

As we just noted, this is a weak argument given the ways DUI laws are written, but to say that because drunk drivers kill people that judges should rig their reading of the Constitution for the purpose of throwing the book at them goes against the sort of strict constructionism that conservatives are usually so besotted with. You can take issue with the judge’s interpretation of the law (and I do), but to pretend that the law should simply be ignored when it’s inconvenient (which is what Hyman is advocating) is dopey.

The bigger picture here is that Hyman is going after a particular judge as a way of contributing to the right wing wind machine that’s been going after so-called “activist judges” for some time, now. Note that at the end of his commentary, Hyman pointedly mentions “bad judges”—plural. Even though the decision he comments on is the work of a single judge and no one else has ruled similarly, Hyman broadens the scope of his attack.

It’s a small but telling detail that reveals a tactic we’ve seen from Hyman many times before, as well as from his political brethren: keep throwing out negative remarks about people or groups you want to undercut, no matter what the context—every little bit of mud helps. Enough condemnations of particularly bad judgments and the connections of these to the judiciary as a whole, and pretty soon the cries of “judicial activism” every time someone interprets the law in a way conservatives disagree with will find some traction among the general public.

But to give Hyman credit, it’s not his fault that he’s had to scrape up a commentary about a single legal case from over a month ago. Not much worth noting has happened in the last few weeks, right?

And that’s The Counterpoint.

Hyman Index: 3.07


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