Court Gazing

BurtLaw's Court Gazing
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2006 Burton Randall Hanson

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

The "Ten Commandments Judge" the ACLU helped elect. In November of 2000 the good voters of Alabama, where one of my best friends from law school, Prof. Howard P. Walthall, resides and teaches law, elected Roy Moore chief justice of the state supreme court. Moore is a former county circuit court judge who was appointed to that office in 1992. Upon taking that office he prominently displayed, in the courtroom, an 18" by 24" wooden plaque on which he had handcarved the Ten Commandments. He previously had displayed the plaque in his law office and apparently thought nothing of hanging it in the courtroom. In 1994 the ACLU received complaints that Moore and other judges were starting court sessions with prayers. The organization sent an observer to his courtroom and the observer observed the plaque. The ACLU then gave Moore what one commentator later said was the biggest gift of Moore's political life: the organization filed suit seeking an order requiring removal of the plaque. A circuit court judge in another county ruled that, based on Judge Moore's comments and the context of the display, the display was "purely religious" in purpose and therefore unconstitutional. The judge said Moore could remedy the violation by placing the plaque in a "larger display of non-religious and/or historical items," adding that if Moore did not do that, then he must remove the plaque. Moore said the suggested modification was not acceptable. Attorney General Bill Pryor and Gov. Fob James entered the fray, vowing to fight the order. The governor even threatened to call out the National Guard or state troopers if need be to "defend" Moore's display. The Alabama Supreme Court subsequently dismissed the lawsuit. Thereafter, Moore was able to ride what became known as "the Ten Commandments movement" to victory in his candidacy for chief justice. As part of his campaign Moore said he would take his plaque with him to the judicial center if elected, but he apparently didn't say whether he would simply hang it in his chambers or in the supreme court's courtroom. On taking office, he hung the plaque in the reception area of his chambers. As reported in the Gadsden Times, on Tuesday night, 07.31.2001, Moore, without prior knowledge of any of the eight other justices, installed in the rotunda a two-and-a-half ton piece of granite inscribed with quotations about God and law and topped by the Ten Commandments. During the "surprise unveiling" on Wednesday, 08.01.2001, Moore "explained" that "as chief justice" he had the authority to install the monument. That is a question the court's senior justice said he planned to research. [more, incl. pic] (08.02.2001) More detail and reactions (08.03.2001) More reactions, including from fellow judges and legislators. (08.04.2001) Chief justice explains: "I'm the lessee" (08.08.2001) Chief Justice takes campaign to Baptist church (08.20.2001) Moore subsequently denied, in early and late September, separate requests for placement nearby of an atheist monument and one to the late Dr. Martin Luther King. Meanwhile, at the end of October, two separate lawsuits were filed in federal court seeking an order directing Moore to remove the "Ten Commandments monument." Story in Freedom Forum dated 11.03.2001.

The "imperious" judge with "gray hair coifed in a formidable pompadour": oral argument as entertainment. "Quality entertainment in D.C. isn’t limited to congressional committee rooms, the House and Senate floors, think tank auditoriums, and black tie dinners....If you find yourself in D.C., check the...Web site [of the U.S. Circuit Court of Appeals for the D.C. Circuit]....If [Judge David] Sentelle

is [on a panel] slated to hear a case, pop into [the] courtroom for an hour; he’s far more entertaining than the IMAX nature film at the National Museum of Natural History...." From "Bleeping on the Job," an entertaining piece of legal reporting by Michael J. Lynch in Reason on oral arguments in an appeal by management of an NLRB decision that management's prohibition on verbal assault constituted an unfair labor practice in the context of a unionization drive even though the prohibition wasn't used against union organizers. [more]

"It's my ball," said the spoiled boy. In the NYT today (08.14.2001) Dubya is quoted as saying he'll veto any legislation extending federal support for embryonic stem cell research beyond the parameters he set in his announcement last week. He said his announcement was based on what he thinks is right and "any piece of legislation that undermines what I think is right will be vetoed." (The news report is accompanied by this photo of Dubya strutting away from an outdoor "stage" at his ranch where he'd just signed a bill. Every time I see him walking that way, I ask myself, "Who the hell does he think he is -- the President or something?" He seems to be one of those folks who can "strut sitting down.") Also in the news today, in the Wichita Eagle, is this related item about a district court judge in Kansas who apparently thinks like Bush. This judge, Paul Buchanan, submitted a supplemental budget request to the county board listing eight items of equipment and salary totaling $493,900. When the board denied his request, he summarily issued an order that the items "shall be included in the budget." When the board approved the county budget without including the supplemental $493,900, the judge summarily issued a contempt citation against the board members. The board members have asked the Kansas Supreme Court to intervene. [more] When I was growing up, sometimes a kid who had furnished the ball for a neighborhood pickup basketball game would threaten to take his ball and go home if he didn't get his way on some issue. It's because of stories like these that one should be daily thankful our Founding Fathers recognized the need for checks and balances on the powers given to each branch of government and each official. It's why, e.g., our courts are not super-independent like the courts in Iran but independent and at the same time accountable. In Minnesota we can be thankful that our courts are not just indirectly accountable to the voters but directly via the requirement that every six years each judge must submit to potential opposition in an election. Update (08.17.2001) More... (08.14.2001)

More taxpayers' money spent on consultants. The St. Paul Pioneer-Press reports today (07.24.2001) that Washington County, MN, with help from the state, is spending $40K in consulting fees to help judges and administrators try figure out what they apparently haven't been able to figure out themselves after two years' of study: why it's taking them way too long to decide cases. One should not be surprised if the consultant, from the National Center for State Courts, recommends (at least at the bottom line) that the state solve the delay problem by spending more money hiring more judges and support personnel. I think taxpayers should ask (the lame press won't) a) why our highly-paid appellate and district court judges and administrators, with their recent raises, can't figure out things like this and come up with solutions without spending even more money hiring outside consultants, and b) how much, total, has the judicial branch paid to consultants from the National Center for State Courts over, oh, let's say, the last five or six years. I'm one who is of the opinion that there is a lot of waste in government in Minnesota, as well as elsewhere, and if you ask me for examples, I'd start with hiring consultants like those from the National Center for State Courts to tell those in charge what they should know -- or is it, as some suspect, to tell those in charge what they want to hear, so they can make a better case with the legislature and the governor for taking yet more money from the taxpayers' pockets? [more]

Who does this woman think she is? According to USA Today [more], Fla. Sec. of State Katherine Harris spent $3.4 million last year on foreign travel. "Harris visited eight countries on 10 foreign trips, staying at luxury hotels at taxpayer expense....Her travels have included trips to Argentina, Australia, Brazil, Venezuela, Canada, Panama, Mexico and Barbados." Recently, it's been rumored she wants to run for Congress. A special review committee has been appointed by the legislature to review these expenditures. I've been advocating, for some time, that all travel and entertainment expense reimbursement requests by all public officials in Minnesota, including each judge, be filed and archived on the WWW. The knowledge by each official that his or her travel and entertainment at public expense will be publicly scrutinized presumably will have a healthy prophylactic effect, causing each official to think twice about the ordinary and necessary nature of each such expenditure. [more] (08.01.2001)

The Rules of Golf according to Justice John Paul Stevens and 6 other duffers & nonplayers. Justice Scalia, in dissent, put it thusly: "I am sure the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? [On this] incredibly difficult and incredibly silly question, the Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a fundamental aspect of golf." For more, click here (WSJ Op. J.)

The Dersh. My first year criminal law teacher at Harvard Law School was then 23-year-old first-time teacher, Alan Morten Dershowitz, a Yale Law School graduate who had clerked for Justice Arthur Goldberg, whose son was in my class. To my knowledge, "The Dersh," as some of us called him, has never been known to be a practitioner of the art of understatement. While his statements -- on this, that and

everything else under the sun -- sometimes irritate me ever so slightly or strike me as a tad unfair, I like the guy. Those who know Felix Frankfurter only as a "conservative" judge may find it hard to believe that for several decades before he became a member of the USSCt he regularly wrote columns (for The New Republic) and issued pronouncements that bear somewhat of a resemblance in style and substance to The Dersh's columns and pronouncements. In any event,The Dersh -- "The Whirling Der(vi)sh"? -- is at it again, skewering, in a book (Supreme Injustice: How the High Court Hijacked Election 2000) and in speeches and columns, the five Justices whose votes ensured the Presidency to "The 'W'" late last year. On the NYT Op-Ed page on July 4th, in a piece titled Curious Fallout From Bush v. Gore (free regis. req.), he attributes what he calls "a spate of unexpected decisions and unusual voting lineups" in USSCt decisions this last term to public criticism of Bush v. Gore by folks like him (is there anyone around like him?) and others. He suggests that the Court was "stung" by criticism that Bush v. Gore was an exercise in partisan politics and argues that "In reaction, several justices may have tried to save their legacy and prove their nonpartisanship by moderating their views -- which led to a term of unpredictable decisions." While The Dersh appears to have been less successful in predicting decisions than I was, I don't think his thesis that judicial decisions are affected by such considerations should be rejected outright. Judges do care about their legacy, particularly as they get older and approach retirement; judges are "politicians," although not necessarily in the same way legislators are; they do pay attention to shifts in public opinion; and their decisions, in some areas more than others, are affected, though not necessarily determined, by public opinion and mood. Indeed, Justice O'Connor's critical statements about the death penalty in a speech on July 2 to an organization of feminist lawyers at the Hilton in Minneapolis -- a speech that appears to have occurred after The Dersh penned his column -- certainly provide at least superficial corroboration of the thesis. (07.04.2001)

The Dersh (continued) - In re Justice Thomas. While I am not troubled by The Dersh's thesis, I am troubled by his assumption that just because Justice Thomas and Justice Scalia often vote similarly, the one (Thomas) necessarily is a follower of the other (Scalia). Twice in a short opinion piece The Dersh makes the assertion, saying that Thomas "almost always follows Justice Scalia" and later "As usual, Justice Thomas voted very often with Justice Scalia." Justice Thomas has publicly expressed irritation with similar statements by others. Just this week the Atlanta Journal-Constitution, published a superb, in-depth 3-part profile of Justice Thomas, which everyone should read. Click here. In part three the author writes that when Thomas was asked if he writes his opinions, he replied, "No, Justice Scalia does." According to the author, this was the second time in 30 minutes that Thomas confronted "a perception that has dogged him for 10 years[, that]...Scalia, a white man of Italian descent, is the puppeteer who guides Thomas'] votes and crafts his judicial opinions." Thomas says, "Because I am black, it is said that Justice Scalia has to do my work for me...He must somehow have a chip in my brain and controls me that way." Nadine Strossen, President of the National ACLU, recently said, “Some of the attacks on Thomas -- that he is dumb, that he doesn’t write his own opinions -- are racist, the same things I used to hear about [former Supreme Court Justice] Thurgood Marshall." [See below] I don't know what The Dersh thinks or has said about Thomas, so I'm not suggesting anything he's said merits that kind of criticism. Let's just say I'm not sure it's fair of him to say that Thomas "almost always follows" Scalia. Why not, "The two almost always vote the same way and tend to join each other's opinions"? (07.04.2001) Update: The Dersh speaks to The Crimson (10.02.2001); The Dersh "prosecutes" Osama bin Laden (10.06.2001).

Should the entire Supreme Court resign? Folks like the Dersh (see above) have expressed their ire, in speeches, articles, and books, at the five members of the U.S. Supreme Court who voted in favor of Geo. Bush, Jr., in Bush v. Gore. Some folks in Oregon even suggested the five be impeached. But I haven't heard of anyone who thinks all nine of the justices ought to resign. That's basically what some are suggesting in Thailand's mini-version of our constitutional crisis. In Thailand, the court divided 8-7 in a decision that, temporarily at least, ensured the political survival of Prime Minister Thaksin Shinawatra. Those advocating the mass resignation argue that the 15 justices violated an article of the Thai constitution that, according to The Bangkok Post, requires all judges, in deciding a case, "to write their individual opinions and present their oral statements to a meeting of the bench before passing a common resolution." [more] (08.26.2001)

Study: disagreement, not harmony, is key to organization's or institution's success. From a Brown University press release: "In money-making organizations, respectful disagreement among colleagues – not close friendships – is the ideal, according to a new study by Brown sociologist Brooke Harrington....The closer colleagues are – family and friends – the less apt they are to engage in constructive debate about business decisions....The findings illustrate why family businesses frequently get into trouble; people may be reluctant to contradict a family member. A similar danger is present in all work organizations...When it comes to decision-making in complex environments...it is essential for business to maximize input from workers. Nowhere is that more evident than in industries where ideas are the central product, said Harrington. Even an organization like a board of directors, which is given the challenge to hold management accountable for decision-making, can suffer when the managers become too friendly and close to board members...." These findings seemingly are applicable to large organizations like law firms and to smaller institutions such as a multi-member appellate court. In multi-member appellate courts one of the many current clichés is "colleageality." It is a word that, like most clichés, is used as a substitute for thought. Some judicial lightweights seem to think an appellate court should be a "mutual admiration society" and they put a premium on reaching unanimity. Our Founding Fathers were wiser. They knew that diversity of opinion and respectful arm's-length disagreement, even among colleagues, are the lifeblood of a creative, free, democratic society. I recently heard a well-known, highly-thoughtful appellate advocate bemoan a particular appellate court's relatively-recent overemphasis on suppressing ideological differences in its opinions in the interest of presenting a harmonious, united front to the bar and the public. The unsettling result, according to this advocate, is that even experienced students of the court's opinions are unable to discern any rational pattern to the court's jurisprudence. Another student of that court describes its opinions as "bland." More on this later....

Opinion Bingo - the law clerks' game. Dahlia Lithwick, who covers "the law" for Slate, is the wittiest and possibly the most perceptive analyst of the U.S. Supreme Court. Here's an excerpt from Microsoft Bad, Judge Jackson Worse, her fine analysis of the Circuit Court's decision in the Microsoft case: "Which gets us to Page 60 of this 125-page document. Where the court makes use of the word 'edentulous.' Writing as a former law clerk, I confess that the word 'edentulous' probably means a law clerk somewhere on the D.C. Circuit is getting a lot of free pizza and beer tonight. The game is Opinion Bingo. Points are earned for working a randomly selected word from Webster's into any published opinion. Here I must also add that such words never have made it past my judge's ruthless editing. Edentulous. Please." (06.28.2001)

Funniest line in recent judicial opinions: "[The] test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect) [is] th’ol’ 'totality of the circumstances' test." Scalia, J., dissenting in U.S. v. Mead Corp.,No. 99 - 1434 (8-1, June 18, 2001), a decision which, according to His Honor, "makes an avulsive change in judicial review of federal administrative action." Syllabus; Souter's majority opinion; Scalia's dissent. Washington Post editorial. BurtLaw comment: does this shed any light on whether Jenna'n'tonic is old enough to drink a margarita or a daiquiri? Click here. (06.22.2001)

A sense of where the camera is... John McPhee wrote a book in 1965 about Bill Bradley when Bradley was an All-American basketball phenom at Princeton. The title of the book was A Sense of Where You Are. It's a very good book, still in print, still worth reading. The title referred partly to Bradley's sense on the basketball court of where he was at any instant in relation to each of his teammates, each opponent, the refs, the ball, and the basket. There's a certain judicial politician somewhere in our great American common law system who has a related sense, an uncanny sense at any public gathering of where he is in relation to the cameras. If the cameras are present at a lying-in-state or a funeral, you can bet he'll find a way to be in their field of view at the precise moment the camera-persons press the shutters or set the videotapes a-rolling. If the governor is holding a press conference on a matter relating to the judiciary, you can bet he'll position himself in such a way that he'll appear in any subsequent news-clip on the local news.

BurtLaw advice to former MN Supreme Court law clerk. A subcommittee of the Hawaii ACLU wanted to invite Justice Clarence Thomas of the USSCt to debate former MN Supreme Law Clerk Nadine Strossen, now President of the national ACLU, at an annual First Amendment (i.e., free speech) conference held in Hawaii. But the Hawaii ACLU, by a vote of 12-3, refused to invite Thomas after objections surfaced. The sad spectacle is set forth in detail in an article in the Honolulu Weekly [click here]. One of those who successfully lobbied the Board called Thomas an "Uncle Tom," one compared him to Hitler's propagandist, Joseph Goebbels, a third noted that Thomas is "married to a white person," and yet another called him an "intellectual fraud," adding that Thomas also "is an asshole." The article quotes Strossen as saying, “Some of the attacks on Thomas -- that he is dumb, that he doesn’t write his own opinions -- are racist, the same things I used to hear about [former Supreme Court Justice] Thurgood Marshall. I suspect I know Thomas better than anyone on the [Hawai‘i] board. My [law school] students absolutely adore him, and they know it’s important to have a dialogue with those with whom you disagree.” BurtLaw, who knows Strossen from her law-clerking days and believes she has been an effective advocate for civil liberties, advises Strossen to follow the advice a colleague reportedly has given her, to "decline any invitation to debate anyone other than Thomas." :-) (06.24.2001) Update. The Hawaii ACLU, in late July, after being subjected to widespread ridicule, reversed itself on the "Thomas invite." Click here.

Government records online. As an article in the Orlando Sentinel for 05.31.2001exemplifies, more and more political entities, including courts, are putting their records online. In Minnesota the late Chief Justice Peter S. Popovich was, both as a legislator and as a judge, a champion of open-government and so-called sunshine laws. The ascension of the web as a tool for providing the free-flow of information is a great thing, not just for the democratization of the world, but for the greater democratization of already-open societies such as ours. In Minnesota the court system is spending millions of dollars (I think too much) to develop a state-of-the-art statewide computer system that, I think, holds great promise for openness in government, provided the ordinary people -- you and I -- insist that the system be used for it. I foresee, for example, citizens demanding that the court put its financial books and accounts online -- specifically, the detailed budget, not just the "lite" version the public and legislators are shown. This would include the name and salary of every court employee, the unit-by-unit amounts spent on this or that, the expense-account filings of each judge, the daily calendar of each judge, etc., etc. I heard President Yudof of the U. of Minn. whining the other day about the Governor's and the Legislature's cutting his huge requested budget increase in half. Yudof said words to the effect that this left him with the choice between dramatic tuition increases and cutting the quality of education. What rubbish. My word to him would be my word to all public officials, that he can and should look a little harder at all the fat in his budget, at all the waste in spending. If he can't do this, he and his lieutenants should be encouraged to look elsewhere for employment. (05.31.2001) Update: Sunshine laws: theory vs. practice (08.08.2001) Click here for access to online version of Access, a guide by Washington journalists on gaining access to government information.

Hmmm. "Lawyers who contribute to the election campaigns of Texas supreme court justices get their cases disproportionately accepted for review, a judicial watchdog

group says....Chief Justice Thomas Phillips called the statistics 'junk science' and disputed the relevance of the analysis." [more] For access to the full report, "Pay To Play: How Big Money Buys Access To the Texas Supreme Court," prepared by Texans for Public Justice, click here. No one believes in judicial independence more than I, so long as its antimony partner, judicial accountability, is given equal recognition. I'm wondering if these two important public interests might be served by an association or organization of interested citizens in MN, which could use the "sunshine laws" to monitor our court system's budget in detail (not in "lite" summary form), examine judges' expense-account, time, and productivity records, conduct studies such as the Texas one (preferably a longitudinal one going back 5 or 10 years, to ensure reliability), study the issue whether the judicial branch is up to the task of regulating the practice of law, etc. It's possible our court system would come out smelling like a rose. Who knows.

Judicial politics Minnesota style. The Eighth Circuit Court of Appeals, in a 2-1 decision filed April 30, 2001, upheld, as construed, the controversial Canon 5 of the Minnesota Code of Judicial Conduct. Republican Party v. Barry M. Lazarus Case Nos. 99-4021, 99-4029, and 99-4025. Although I was an unsuccessful candidate for chief justice in 2000, I am not involved in the litigation and have no connection with the litigants. During the campaign, I publicly urged my opponent, the current chief justice, to do as I did, forego all endorsements and contributions from both individuals and groups. Her chairperson hinted that I took the position because I couldn't get anyone to endorse me or contribute to my campaign if I tried. Perhaps there's a grain of truth to that. :-) However, anyone who really knows me knows that I've always been pretty independent-minded, that I'm not a joiner, that I don't follow the crowd, and that I don't particularly want any crowd to follow me. I think I'd make a good judge but I made a poor judicial candidate. As my old torts professor at Harvard Law, the patrician Milton Katz -- who had been Chief of the Marshall Plan in Europe in 1950-51 and always wore a vested suit to class -- said in a book he wrote, the skills needed to get elected to a particular office aren't necessarily the same as those needed to serve well in that office. In any event, I urge everyone interested in the important issues to read the majority opinion by Judge Gibson, joined by McMillian, and the provocative dissent by Judge Beam. Click here, then go to opinions filed on April 30 to download opinion in Adobe format. The Eighth Circuit's decision is less than satisfactory, in my opinion, and I therefore hope the United States Supreme Court will review the case. For an interesting perspective on the issues, see The Case for Partisan Judicial Elections at the Federalist Society's website. (05.02.2001)

Dept. of cheapskate judges. From the diary kept by Elizabeth Black, Justice Black's secretary and then second wife.... Entry of Tuesday, June 24, 1968: "Hugo and I had a big argument as to whether we could replace our thirty-year-old gas stove which has a semi-rusted oven and no thermostat on it. We stopped by Harris Plumbing to see if the old stove could be fixed, and Mr. Harris laughed heartily when Hugo was so insistent that our stove was perfect. Hugo said if people made stoves to last only thirty years they ought to be arrested." Entry of Thursday, June 27, 1968: "Hugo talked to me finally about the stove, reiterating his opinion that we do not need a new stove, but if it would make me happy he'd get it for me. I told him it would, and so he agreed, reluctantly."

Guess which appellate court judge. Guess which appellate court judge, when asked if his wife and he had time to go to movies, answered as follows: "My wife and I don't go to the theaters; that's too much of a bother. But we rent movies or buy movies. I like comedies. I don't like serious movies. I make an occasional exception, but I like comedies and my tastes are pretty catholic. I'm very enthusiastic for the Marx Brothers; I like Joe Pesci a lot; I like Meg Ryan; I like the Cary Grant-Katharine Hepburn movies." Hint: he's one of a reported dwindling number of appellate judges who write their own opinions. [click here to find out]

Criticize the courts (when appropriate) and don't feel bad about it. Larry D. Kramer, a professor of law at NYU, recently wrote an interesting critical piece in the New York Times on recent federalism decisions of the U.S. Supreme Court. As he points out, our wonderful system of government in reality doesn't give the "final" answer to any of the "three" branches, and it subjects all of them, directly or indirectly, to the scrutiny of the people and the press. The notion that the judiciary is a fragile institution that needs to be protected from public censure is, he correctly points out, false and counterproductive. If you, as a lawyer or as a layperson, believe a judicial decision is wrong, you are free to criticize it. So is the press, although I believe in recent years the press -- increasingly mired in "lite" news, celebrity gossip, personalizing of politics, and press-release journalism -- has failed in its role as watchdog on the judiciary, as in its role of governmental watchdog in general. A veteran reporter with the Times of India, Palagummi Sainath, seems to agree with me. He argues that journalism has been replaced by "stenography," that is, "mindless notetaking" by reporters at press conferences, etc. [more]

Felix Frankfurter fires his secretary. From The Enigma of Felix Frankfurter 89-90 (1981), by H. N. Hirsch, a book I'm reading in researching a book I'm writing: "The only secretary I ever fired was one that I had when I came [to the Court] who was generally too officious. My gut bust when she told me one day what a fine opinion I wrote. I couldn't stand that -- to have my secretary tell me. She was thoroughly incompetent to know whether it was a fine opinion or not...." Sadly, Frankfurter was, among other things, many of them good, a world-class egomaniac. If you know anyone else who "qualifies" for the appellation, particularly one who wears a robe, please inform me by e-mail; my address is: BurtLaw@LawAndEverythingElse.Com.

Big law firms' subsidies to state supreme court law clerks -- the Texas controversy. Last September The Texas Lawyer revealed that some big Texas law firms with lots of cases before the state supreme court were subsidizing the salaries of the court's law clerks who had agreed to come to work with the firms following their clerkships. Texans for Public Justice, a watchdog group, conducted a study. Its report was released in January. The report concludes the practice "appears to violate the plain language of the 'Bribery and Corrupt Influence' chapter of Texas' penal code, which bars state judicial employees from accepting 'any benefit' from interests with business before the court" and further that "the practice aggravates persistent concerns that the court's coziness with wealthy special interests could influence its official actions." The report recommends: "To prevent further wear and tear on its already tarnished reputation, the court should immediately prohibit its employees from taking salaries or other benefits from any interests that bring business before the court. Any court employee recruited for future employment should be recused from all court matters involving that employer. All employment relations and recusals should be made public." Now it appears some legislators have introduced three different bills attempting to address the ethical concerns. Update (08.04.2001)

Impeach the judge? Last year articles of impeachment were filed against Chief Justice David Brock of the New Hampshire Supreme Court, and a trial was held in that state's senate, which resulted in the judge's acquittal. Recently there's been talk of possible impeachment of a new member of the NJ Supreme Court, if he doesn't resign first. The justice was the state's AG at the time the feds were investigating allegations of racial discrimination by state police in stopping minority motorists for what critics have called the "offense" of "DWB, Driving While Black." His critics allege he withheld information from the feds and gave false sworn testimony during the confirmation process regarding his knowledge of the practice while he was AG. These cases show that the flip side of judicial independence is judicial accountability. Speaking hypothetically, the New Hampshire case suggests that a judge who verbally "recuses" in conference on a case because of a conflict of interest but then proceeds to make comments to his nonrecusing voting colleagues about the case might be subject to impeachment. Again speaking hypothetically, the New Jersey "case" perhaps suggests that in a state in which gubernatorial appointment of a judge is "confirmed" by the voters rather than by the state's senate, an incumbent's making false campaign statements about his prior professional experience, for example, or intentionally misrepresentating the challenger's prior experience to a reporter could be an impeachable offense. For an interesting history of impeachment of federal judges, written by Griffin B. Bell in 1998, click here.

Headline to a story in the Chicago Tribune: "Lawyers plotted to buy judgeship." The charge is that three lawyers hoped campaign contributions to a candidate for the Illinois Supreme Court,who was then a member of the court system's associate judge nominating committee, would convince the recipient to recommend one of them for a judgeship. [more] I argued during my own unsuccessful 2000 campaign for judicial office in Minnesota -- which fortunately has no history of judicial corruption -- that a judicial candidate "who relies heavily on endorsements and contributions by lawyers in particular risks creating certain negative perceptions, fair or unfair." For that reason, I argued that all judicial candidates should voluntarily refuse to accept contributions from lawyers. I went further and refused all endorsements and contributions, thereby making it clear that if elected I wouldn't owe (or appear to owe) anyone, lawyers or others, anything. I also spent practically nothing on the campaign. A lot of good my purity did me: I lost big. :-)

More "Court Gazing"? Click here, here, here, and here.

See, also, LawAndJudicialEconomics.

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