Court Gazing II

BurtLaw's Court Gazing II
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.

"May it please the Court, we've got 25 amicus briefs on our side!" The headline someone attached to Tony Mauro's latest posting reads: "Amicus Filings Before High Court Bolster School Voucher Supporters' Hopes for Victory." More (Yahoo). Does it mean anything that the supporters of the constitutionality of school vouchers have that much support from "friends of the court"? It may and it may not. Justice Frankfurter said, "Anybody can decide a question if only a single principle is in controversy." But the world of truth is contradictory. As Emerson said, "Mad contradictions flavor all our dishes." For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on. Important constitutional issues that reach the Court are often "close" issues involving the conflict of these opposing values or truths, each important. As I have written elsewhere, "Those who think simplistically and without proper regard for the intended role of the judiciary in our system of government think that being a judge is just a matter of voting for or against a particular issue, as if a judge were a kind of legislator who listens, then votes. Robert Frost, who was a renowned college teacher as well as poet, used to tell his students that thinking is more than simply voting or taking sides on an issue. Deciding appeals in the great common law tradition requires more. So the mere fact that the number of amicus briefs filed on one side of an issue far outweighs the number filed by those supporting the other side doesn't necessarily mean much. Moreover, I've read my share of amicus briefs over the years. In my opinion, many, perhaps the majority, are not helpful, at least at the state level. One might assume that those filed in the USSCt are better, but I wouldn't assume that, anymore than I would assume that the lawyers who argue cases there are generally better. (I don't know how in general they could be any worse, but that's another matter.) In any event, although the Justices are not necessarily unaffected by the political and social mood of the country, they won't be basing their decision on which side has more amicus support, or, for that matter, on what polls say. Moreover, heretical thinkers among us are even free, in this free country, to question whether all the Justices actually read, or even browse, most of the amicus briefs, anymore than that they actually read the often all-important record. (It would be fun to put each of the Justices under oath and see what they'd say about those matters.) I have a lot more I could say about amicus briefs, but the short of what I have to say is that I think they matter more to the organizations that submit them than they do to the Court. That an organization can say to its members that it filed an amicus brief has the potential of impressing members. It can be a way of satisfying members that their financial contributions went for something. And, of course, some of the lawyers who write amicus briefs do get compensated and some lawyers have a way of persuading clients and others that their work is essential, that filing a lawsuit or an appeal, even that filing an amicus brief, is essential. :-) (11.10.2001)

A judge's role. The Justices of the USSCt love to go on the lecture circuit every now and then and talk about themselves, that is, about what distinguishes their approach to judging from the approaches of some of their colleagues who aren't as wise. One sometimes wonders what their judicial philosophy might be, and how helpful it might be, if they found themselves sitting as judges in some third world country in which the judiciary is not as "independent" as ours is. This piece, out of Malaysia, illustrates what I'm thinking. It profiles the views of some participants in the 11th Malaysian Law Conference. A court of appeals judge there, Datuk Gopal Sri Ram, spoke on "The Role of Judges and Lawyers in Evolving A Human Rights Jurisprudence." He expressed the view that the "literal approach" (perhaps one might fairly substitute the term "originalist approach" or "textualist approach") taken by Malaysia's Federal Court in interpreting the provisions of the Constitution "gives little hope for the creation of human rights jurisprudence." A prominent lawyer, R. Sivarasa, "likened the Malaysian judiciary’s approach to the development of human rights jurisprudence to the metaphor of a person hesitantly dipping their toes and testing the temperature of the water in the potential whirlpool of human rights jurisprudence. 'It...appears that as tentative dips are made, there is also a tendency to quickly pull back the dipped toe.'" Some of those who weigh in with great confidence in debates in our country over the proper role of a member of the USSCt seem "cock sure" that there is only one right way, their way. But I'm not always sure they really know what they're saying or that they are doing anything more than uttering an agreed-upon set of "code words" and "code phrases." Does what "Judge A" says in a speech at a law school in Milwaukee really provide more than a "screen of words" to justify his going one way or another in a body of cases? Does what a judicial nominee says at a hearing on his nomination help much in predicting how he'll decide cases in the future? Mr. Dooley said once that "jidges" follow the election returns. (And we also know that election returns sometimes follow the judges.) I think Mr. Dooley was right: judges (even "originalists") after all are politicians, albeit judicial politicians, and have sensitive antennae and pick up on those things; they do follow (or pay attention to or are in some way indirectly influenced by) the election returns. And, just as political parties experience being in and out of favor, so, according to Robert Frost, are truths "in and out of favor." If I were President or a governor appointing judges, I wouldn't put too much stock in what the potential nominee says about his judicial philosophy or the method he thinks a judge should use in reaching a result. Here's what C.G. Jung says about this: "An ancient adept has said: 'If the wrong man uses the right means, the right means work in the wrong way.' This Chinese saying, unfortunately only too true, stands in sharp contrast to our belief in the 'right' method irrepective of the man who applies it. In reality, everything depends on the man and little or nothing on the method." I think there's more truth than we might like to admit to what Jung says. (11.09.2001)

Judicial disclosure - the actual and the ideal. The Las Vegas Review-Journal has published an interesting article comparing the disclosure forms required of Nevada and California judges concerning their financial activities. "Under California law, judges from Supreme Court Chief Justice Ronald George down to the lowliest Superior Court jurist must release information on their income, investments and real property holdings, as well as any gifts or loans they have received during the prior year. In contrast, Nevada only requires its judges to generally describe their financial resources and liabilities. Instead of the standardized form that California's Fair Political Practices Commission uses, which forces judges to disclose the dollar value range of any asset or liability they possess, Nevada allows judges to describe their financial situation in any manner they choose." A critic of Nevada's limited disclosure requirement is quoted as stating, "These reports remind me of a person who talks a lot but never says anything. It's misleading to call these disclosure statements." The Chief Justice of the California Supreme Court is quoted as saying he is considering putting the disclosure statements on the court system's public information web site so the public will have easy access to the information. Because it is so difficult for the public to gain access to the Nevada judges' disclosure forms, the Review-Journal has posted on its website the most recent disclosure reports of all Clark County judges and Nevada Supreme Court justices. See here, here and here. Some jurisdictions, of course, don't even require judges to file any disclosure statements. I have proposed on a number of occasions that, in the interest of greater judicial accountability, the administrators of state courts be required to collect and post on state court websites considerably more information than just information regarding judges' financial activities. See, e.g., my essay on judicial independence and accountability, particularly this section and this section. Of course, there's nothing preventing newspapers from doing their job by using the "sunshine laws" to collect this information and post it on the Internet. Unfortunately, too many newspapers practice "press release journalism" when it comes to coverage of the judiciary, basically just printing the "lite" stuff that courts' "press information officers" ("p.r. reps" paid for by taxpayers) put out. Some states have independent court-watching organization that could easily start doing this. Texas, for example, has Texans for Public Justice (more and more). (11.05.2001)

The "Ten Commandments movement" revisited. Last summer (click here), I described the ongoing soap opera in Alabama involving a) the election, with considerable unintended "help" from the ACLU, of Roy Moore, the so-called "Ten Commandments Judge," to the chief justiceship in November of 2000 and b) the placement by the Chief, without advance knowledge or approval by his cohorts, of a "Ten Commandment monument" in a prominent public area of the Alabama Judicial Center. Today, 11.04.2001, I posted there my latest update, a link to a news story relating to the filing of two separate lawsuits in federal court by parties seeking an order directing Moore to remove the monument. Story in Freedom Forum dated 11.03.2001. The story also refers to skirmishes in other states in which politicians have tried or are trying to follow Moore's lead.

Some have asked, "What's so bad about what Moore has done?" That's somewhat like the legendary question, "What is jazz?" If you have to ask, well, maybe you'll never get it -- or maybe you'll never see it as I see it and as other people who believe in the separation of church and state see it. I think a better question is, Do I think there's a place for "The Ten Commandments" in a court house or court room? My answer to that is "Yes, come to the Supreme Court's main court room in the Minnesota State Capitol in St. Paul or go to the U.S. Supreme Court Building in Washington, D.C. and see for yourself." Both buildings were designed by Minnesota's greatest architect, Cass Gilbert. In Minnesota Gilbert assigned to John La Farge the task of executing four huge paintings to fill lunettes inside the court room. La Forge's paintings relate to the history or evolution of the law. One, in the north lunette, depicts Confucius and three disciples recording precedents. The one in the west lunette is of Socrates and his disciples and is intended to depict, among other things, freedom of thought and expression. The one in the south lunette relates to the Roman law; its theme is the need for law to mediate the great antinomies or opposing truths, such as freedom and order. The one in the east lunette, over the bench where the justices sit, is of Moses receiving the moral and divine law on Mt. Sinai. In the court room in Gilbert's U.S. Supreme Court building are marble friezes depicting the great lawgivers of history sculpted by Adolph Weinman. If you've ever possessed a 1916-45 Winged Liberty or "Mercury" head dime, you've owned a piece of art created by Weinman. The model for the 1913 bust on which the coin design is based was Elsie Kachel Stevens, the wife of one of America's greatest poets, the lawyer Wallace Stevens. Anyhow, in the court room friezes Weinman included 18 "lawgivers," specifically, Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius, Octavian, Napoleon Bonaparte, John Marshall, Blackstone, Grotius, Louis IX, King John, Charlemagne, Muhammad and Justinian. For more, see Joan Biskupic, Great Figures Gaze Upon the Court Washington Post 03.11.1998. If Alabama's Chief Justice Moore weren't a judicial demagogue and if he really wanted to "do it right," he wouldn't have done it the way he did. He'd have talked it over with his colleagues, he'd have done some research, and he'd have solicited input from legal scholars and historians -- and there wouldn't be any "Ten Commandments controversy" whatever. Moore would have had his Moses, and more.... But, in my opinion, politicians like Moore aren't as much about Moses and the great Judeo-Christian tradition as they are about using Moses and the great Judeo-Christian tradition to create controversy and get votes. (11.04.2001)

Robe throwing and other judicial shenanigans in the vicinity of Beantown? According to the Boston Globe, two Massachusetts trial court judges are now on "voluntary" paid ($113,000 a year) "nonassignment" for an indefinite time while the Commission on Judicial Conduct investigates Commission leaks during an earlier investigation of one of them. The two judges, who are friends, are Paul J. Cavanaugh and David E. Harrison. They are both what some cynics refer to as "politicians in robes" -- that is, like many judges, they previously were active in partisan elective politics, and that involvement presumably led to their appointments to the bench. Specifically, they both served in the Massachusetts House of Representatives together and they both were appointed by then-Governor (later Democratic Presidential nominee) Michael Dukakis to the bench. The rumored leaks being investigated relate to 1998 Commission deliberations concerning a complaint filed against Harrison. The leak investigation began over a year ago and has already resulted in the resignation of a member of the Commission, Attorney Gerald C.J. Cook. In August the Massachusetts Supreme Judicial Court issued an order rejecting Cook's claim of the Fifth Amendment privilege against compelled self-incrimination, and he has since provided testimony and subpoenaed documents to the Commission. Cook reportedly admitted having conversations with Judge Cavanaugh about the deliberations involving the complaint against Judge Harrison. The Commission is investigating whether Cavanaugh passed on information obtained from Cook to Harrison. The Commission didn't learn of the possible leaks until 2000, when it was again investigating Judge Harrison, that time for having made intimidating remarks to an opponent of a zoning variance for a real estate development sought by a developer represented by his Harrison's attorney wife. That investigation resulted in what is known as a "private reprimand." Some of the investigation into Commission leaks is coming from discovery in a 1999 federal civil suit for discrimination filed by a district court clerk against Judge Cavanaugh. The clerk's complaint claims Judge Cavanaugh harassed her and denied her a promotion because she complained publicly about "unhealthy conditions" at the court. in open court. The complaint alleges that at one point in 1997 Cavanaugh ''angrily removed his robe, rolled it into a ball and threw it at her,'' striking her in the head. In a deposition of Cavanaugh's assistant taken last summer in that lawsuit, the assistant testified that Cavanaugh had met with Attorney Cook, the Commission member, in the courthouse and that they had discussed ''a list of judges'' at ''another court" (whatever that means). (11.03.2001)

The always-fascinating Dick. "I bet you didn't know that Richard Nixon put together a Cabinet committee on terrorism, or that he was the first to have air marshals on flights. Nixon has been viewed through the lens of everything that went wrong." John Dean, author of The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court, quoted by Charles Leroux in "Blind ambition meets blind justice -- Who's that ratting out Richard Nixon again, this time over his Supreme Court choices? Why, it's John Dean," in the Chicago Tribune. The book is based on newly-released tapes of what Nixon and his aides said. As anyone who has worked in Government knows, or should know, people (especially politicians) sometimes say things in confidence (as well as in public) they don't necessarily mean -- maybe for a laugh, maybe to test the waters, maybe to see what others are thinking or will say they're thinking, maybe to see if an idea stated in the worst way still makes sense, etc. Creative writing involves a two-part process -- the wild-man creative-blockbusting phase and the see-how-it-writes and editing stage. And so it is with creativity in governing.

The latter requires the creation of safe places and safe contemporaneously-confidential relationships that permit leaders and aides to engage in the open-ended wild thinking and talking that give birth to new ideas. As other stories about the book have revealed, both the boisterous Martha Mitchell, the AG's wife, and Pat Nixon, the ever-loyal First Lady, wanted Nixon to appoint a woman, and in the company of his aides he toyed with the idea for awhile. At one point on the tapes Nixon is heard saying that, because of the problem of the close contact required among co-workers, one would no more put a woman on the court with the other judges, all men, than one would put a woman with men on a space ship. At another point Nixon is heard on the tapes saying, "For Christ sakes! I don't even think women should be educated." According to the article, even though he didn't stop making his jokes, which produced the desired laughs from the boys, "Nixon came around to seeing the possibility of a female Supreme Court justice as a potential political plus and not much of a minus. Also he seemed intrigued by the chance to be the first president to put a woman on the court. At one point, a male jurist is mentioned and Nixon says all he'd need to be perfect is a sex change. Ehrlichman can be heard commenting, 'Takes too much time.'" Nixon, of course, was no ground-breaker in considering appointing a woman. That honor apparently goes to FDR, who in some way -- whether seriously or not -- considered appointing Florence Allen to the Court. See, The First Woman Candidate for the Supreme Court -- Florence E. Allen by Beverly B. Cook. One can only speculate concerning what an audio tape of FDR's conversations with his confidantes, including Justice Frankfurter, would reveal. Perhaps we might hear the same kind of talk a playing of the Nixon tapes reveal. In speculating, we might remind ourselves that Justice Frankfurter is the man who said, "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...." From H. N. Hirsch, The Enigma of Felix Frankfurter 89-90 (1981). (11.01.2001) More (Nixon and Secretary of State Rogers discuss bowling).

Super-independent judge vows to punish reformers. Iran's top-gun super-independent judge, Ayatollah Mahmoud Hashemi Shahroudi, has had another huffy fit, threatening to punish anyone in Iranian government who advocates closer ties with "the Great Satan," i.e., the U.S. [more] The judge and his pals in the judiciary are the ones who earlier announced a crackdown on everything in life their active, roving, scolding minds find outrageous, including girls wearing tee-shirts, men wearing ties, women wearing makeup, men and women holding hands, and, outrage of outrages, humans owning dogs, which they deem "unclean" and "un-Islamic." Hmm, Mathilda is "un-Islamic" -- she's Norwegian Lutheran -- but she's definitely not "unclean." (10.29.2001)

Investigating the investigator. A California judge named Patricia Gray was successfully challenged in the judicial election by a public defender. The state's board on judicial ethics then accused Gray of unethical conduct for an accusation she made during the campaign that her opponent, a public defender, condoned the conduct of his clients. Now, however, according to the Sacramento Bee, the board's top lawyer, Victoria Henley, is herself under investigation because it turns out that at the time Henley and her staff filed the accusation against Gray, Henley's lawyer-husband had a malpractice suit on behalf of a client pending against Gray based on Gray's representation of the client before she became a judge. My own previously-stated view is that judicial campaigns around the country, including in Minnesota, are overly regulated to the point of interfering with each candidate's free-speech rights and with each voter's right to unimpeded access to information and debate. (10.29.2001)

Plaintiffs' judges, insurers' judges. It's sad but true. In state after state appellate judges, rightly or wrongly, are identified as primarily in one camp or the other -- the personal injury plaintiffs' camp or the insurers' camp. Often it's easy to tell which camp a judge is in just by reading a sample of the judge's opinions. Michigan is a state in which plaintiffs' lawyers are claiming that their clients aren't getting a fair shake by the appellate courts. More (NLJ via Yahoo). (10.26.2001)

Is the judicial branch the "most important"? One of the most powerful senators in Florida is a lawyer named Walter G. "Skip" Campbell, who also is the wealthiest legislator, with a net worth of $11.52 million. He's hearing a lot from employees of the court system of late because Florida is facing a revenue shortfall and courts are being asked to share the resulting misery by absorbing budget cuts. According to Campbell, he's been getting lots of e-mails from people in the court system saying, "Spare my program." Campbell is sympathetic. The other day, speaking at a South Florida conference of bench and bar, he actually said what some judges think but keep to themselves. Specifically, if this report is accurate, he referred to the judicial branch as "the most important branch" of government. I stood in line at a grocery store with some nonlawyers yesterday waiting for over an hour to get a flu shot. To help pass the time pleasantly, some of us said some deliberately silly things -- but nothing as silly as that. (10.26.2001)

Errant judge gets to investigate other errant judges. "Barely nine months after he was reprimanded for double-dealing clients in a real estate transaction, Dearborn District Judge William Runco has been elected to the Michigan Judicial Tenure Commission, which investigated and prosecuted him." [more] Am I troubled by this? Why should I be? I believe in rehabilitation of errant judges, as long as they believe in the rehabilitation of errant citizens who come before them. (10.25.2001)

"Supreme Court comes to Pineville." Whoop-de-doo! The Supreme Court of West Virginia has been holding court in towns around the state. [more] Courts are as much influenced by fads and fashions as people. In recent years, state supreme courts, including our own in Minnesota, increasingly have been "taking the show on the road" or, as some judges have put it, engaging in "community outreach." (Or, as a Norwegian farmer might put it, "ed-you-cay-shun.") For more of my views on this fad, click here. (10.25.2001)

Alexander Hamilton. "[T]he system of checks and balances we associate with the Constitution was also built into the leadership class of the Revolutionary generation; as the strongest voice for a nationalistic version of the American Revolution and the commercial character of the American republic, Hamilton was an essential ingredient in the political chemistry of the era, dangerous if isolated and unopposed, indispensable in the larger mix...." From a review by Joseph Ellis in The New Yorker of a new collection of Andrew Hamilton's writings. (10.25.2001)

Judges are getting sent to Mexico to study. Judges from a number of states, including Minnesota, are being sent to Mexico for what is described as a "Mexican government-funded crash course on all things Mexico." According to an article in the Chicago Tribune (more), the purpose of the course is "to educate judges who often play an important role in deciding the fate of immigrants who sometimes run into trouble with the law in the United States." Hmmm. Before I express an opinion on either the propriety or efficacy of this, I'd like more information on the total cost per judge (including the hidden costs of a judge missing work), on who pays for what, on the curriculum, on the daily agendas, on whether other sponsors of "cultural" education for judges are treated equally, etc. (10.21.2001)

The Fightin' Fourth Circuit. That's what some folks have called the 4th Circuit Louisiana Court of Appeals because of a verbal and physical altercation that occurred on 01.31.2001 during a meeting of three judges in the conference room. The three judges are Judges Miriam Waltzer, Steven Plotkin, and Charles R. Jones. Jones, a former legislator who is black and felt the court was not doing enough to hire other black people, was outraged over being stymied in his attempt to get the court to hire U.S. Rep William Jefferson's sister-in-law as a so-called "staff attorney." (I was a staff attorney at the Minnesota Supreme Court for over 28 years. Judges are supposed to hire people for such positions on the basis of merit, not on the basis of connections). According to testimony before the nine-member Judiciary Commission, Judge Jones verbally assaulted Judge Waltzer with a string of "f-word"-laced obscenities. Judge Waltzer feared Jones was going to hit her. Judge Plotkin, presumably being "gallant," as I would have been, stood up to Judge Jones, chest to chest, at which point Judge Jones threw a punch. Plotkin then grabbed Jones around the waist, and Jones picked up Plotkin and threw him onto a coffee table. (No one would have thrown me onto a coffee table.) Judge Plotkin sustained a head cut. Chief Judge William Byrnes then entered the conference room and told Jones, who apparently was still shouting, to shut up and sit down, that he was "making a damn fool of the judiciary." The Commission recommended that Jones be suspended without pay for three months. Yesterday (10.15.2001) Jones' attorney challenged that recommendation before the state supreme court, which will decide the matter. [more]

Another fightin' judge. This one's name is Cynthia Holloway, a circuit judge in Florida. A friend of hers who was involved in a child custody dispute called her up and asked for help. Judge Holloway stormed into the chambers of Judge Ralph Stoddard, the presiding judge, pointed her finger at him and asked why he couldn't speed up the case. When she stormed out, she said that one of the attorneys must have a picture of the judge with a dog. An assistant of Judge Stoddard testified that she was shocked -- "In my mind, I know what that implied." I think we all do. :-) Anyhow, Judge Holloway is now facing discipline for that and other alleged misconduct. [more & more] Meanwhile, also in Florida, the Speaker of the House is threatening impeachment of two other judges caught behaving badly, one caught in the chambers of an "enemy" of his on the court and the other for "peeping Tom"-type behavior while intoxicated at a judicial conference in California. [more] Someone asked me if this sort of stuff is just the tip of an iceberg of misconduct by judges. I had to say, "I don't know." It's been three years since I left my job in the court system. So I don't know what's going on behind the scenes in Minnesota these days. All I know is what I read in the papers or on the internet and hear from my sources. That sort of stuff ain't knowledge -- it's hearsay. My general philosophical stance? Judges are human and have feet of clay. I don't get too worked up about a lot of this stuff. I was raised as a Norwegian Lutheran and I adhere to that church's view of human nature and sin -- we've all, even judges, fallen short of the Glory of God and we're all, even judges, daily in need of God's redeeming grace and forgiveness. I tend to judge a particular judge by his or her overall performance of the judicial role -- does he get to work on time and open court on time, does she give the parties a fair hearing, does he get out his decisions on time, do her decisions pass muster, does he treat the attorneys well, does she treat judicial employees with respect, etc. (10.16.2001) Holloway, denying she lied, vows to fight recommended reprimand & suspension (St. Petersburg Times, 01.19.2002).

Too old to judge? Too old to practice law with "the firm"? "Milton Pollack, a federal judge who turned 95 last month, is still putting in 50-hour weeks, seeking out complicated securities cases and relishing his role in settling some of the biggest fraud cases in Wall Street history." This profile from the WSJ is also a story about the crucial role played by "elderly" judges in the federal court system, which -- unlike many state court systems, including Minnesota's -- does not mandate the retirement of judges simply because they've reached a certain age. It's my personal opinion that mandatory retirement of judges is not only poor public policy, it's shamefully discriminatory. Click here for more. Some in the legal profession like to sing songs to themselves about how noble lawyers are. But lawyers have a long history of aiding and abetting invidious discrimination, in and out of the profession. Like all who discriminate, they can recognize it only in retrospect. Thus, it's easy now to look back at the history of my alma mater, august Harvard Law School, and see various acts and/or policies of discrimination. Women, for example, weren't admitted until 1950. But the discrimination continued in other forms and some of the best legal minds didn't see it. Listen to Dean Erwin Griswold as he spoke to the newly-admitted women of the Class of 1953: "I am so glad you are here, it has taken much too long to admit women. We should have done this years ago. We are so delighted because you will perform such an invaluable service. You will now be in a position to do the pro bono work that the men have been required to do...." From A Stroll Down Memory Lane with Three Power Walkers (WBASNY). Does the profession still invidiously discriminate in various ways? C'mon, we all know it's true. Age discrimination is one common form. Older Attorneys Face Added Job Hurdles (Yahoo/NYLJ). And, damn it all, regardless of the form it takes, its practitioners are filled with the usual rationalizations and self-delusions that those who discriminate always have used. One of the common self-delusions of those who discriminate, of course, is to adopt a policy forbidding discrimination. The policy typically reads: "We do not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, sex, sexual orientation, marital or parental status, handicap, source of income, or [any other of the current favored statuses]." "There," they typically say to themselves after adopting such a policy, "that takes care of that." It would be funny if it wasn't so bad and so sad. (10.09.2001)

Conventional courts, traditional courts. Years ago a wise old man who was not a judge, just wiser than any of the many judges I've known, said to me, "Once you've studied history, you'll see that, despite all the trappings of civilization, Man hasn't progressed much -- just scratch his surface and you'll find a tiger underneath." We saw this in Nazi Germany. We've seen it in China, with its periodic bloodbaths. We've seen it in the killing fields of Cambodia. We've seen it in the "ethnic cleansing" in the Balkans. In 1994 we saw it in Rwanda, in central Africa, when members of the majority "tribe," the Hutu, slaughtered between half a million and a million fellow countrymen in just a few months, most of them minority Tutsis or moderate Hutu. To their credit, the Rwandans are trying to try the estimated 120,000 people suspected of participating in the slaughter. But the thirteen so-called conventional courts trying these cases have proven they're not up to the task. Thus far, they've tried only several thousand of the suspects and the rest have been languishing in jails awaiting their trials. What to do? The Rwandans decided to reinstitute what are known as traditional courts or gacaca (which means grass-roots justice). Gacaca sounds to me somewhat akin to the "teen courts" that some secondary schools in the U.S. have used, except that the judgments of these courts will have the force of law. Rwandans recently went to the polls and elected 260,000 ordinary citizens to sit on these community courts and pass judgment on their peers. Many of the people elected don't have the slightest inkling of what being a "judge" entails and some who've been elected understandably don't want to sit. The government, which will provide training to the judges, concedes the solution isn't ideal, but it seems to have concluded that any trial now is better than no trial. Then again, it's possible that the gacaca judges will be wiser and fairer than their legally-trained "colleagues" who preside in the conventional courts. A recent BBC news story includes links to BBC background stories. This AllAfrica.Com story focuses on the women who will be serving on these courts. (10.08.2001)

Making sausage and appointing judges. For many years my great grandfather, Hans Rasmus Hanson, and grandfather, Robert Gornelius Hanson, made money, in more ways than one, from "livestock." They both had well-developed senses of "value" -- how much to pay for a cow in order to sell it for a profit. (I'll let you in on an old family secret: in that, as in so many things, the "trick," my friends, is to "buy low and sell high.") For many years they were involved in shipping livestock from my hometown by train (another secret: freight train, not passenger train) to "the stockyards" in South St. Paul. Sometimes they bought cows in Benson, then shipped them and sold them -- usually at a profit. Other times they acted as shipping agents, charging, as agents are known to do, a percentage of the selling price. They also had an interest in a local "meat market" and supplied the market with livestock for butchering. In my youth, which was before merchants learned modern marketing tricks, customers who wanted to buy meat had to make it past a scary, growling dog who guarded the front door of the market (and the meat within, which the dog presumed was partly his). In Benson, and in small towns all across America, there was a saying to the effect that you really don't want to see the butcher make sausage, hot dogs, and hamburger. I think the same may be said of the highly political process, both at the state and federal level, of the executive's appointment of judges. In a new memoir John Dean, who advised President Nixon on the appointment of U.S. Supreme Court Justices, tells the fascinating behind-the-scenes "sausage-making" story of the events leading to the appointment of William Rehnquist as an Associate Justice. He tells some of it in this book-promoting Q&A in Salon. (10.04.2001)

Why did the Court decide to decide this case?! Here's the link to another good posting in Slate by Dahlia Lithwick, in which she muses over why the U.S. Supreme Court decided to grant review in a case presenting the question whether a company may obtain a patent on "sexually reproduced, genetically engineered hybrid corn." Lithwick presents her own "top 10 list" of clues during oral argument that the Court didn't need to hear the case, including "10. Justice Scalia does not speak," "4. Justice Thomas is joined for portions of his ritual nap by -- in no particular order -- Breyer, Scalia, and opposing counsel," and "1. As Bruce Johnson, attorney for J.E.M., rises for his final rebuttal, Chief Justice Rehnquist says, 'You have 10 seconds remaining, we'll round down, this case is submitted.' Johnson misunderstands and attempts to address the court and ends up standing at the lectern, mouth agape, as the justices flee the bench." (10.04.2001)

Dahlia speaks. I always like reading what Dahlia Lithwick writes about the U.S. Supreme Court. Here she is on two of the attorneys who argued on the opening day of the Fall Term: "One thing [Attorney] Phillips does that is either genius lawyering or unmitigated sass involves laying out for each justice what he calls the 'flaw in your theory.' He tells each of Justices Souter, Breyer, and Ginsburg exactly how they misapprehend the case law....[Attorney] Lamken argues for the solicitor general and speaks so quickly, you might think he's trying to beat out some statute of limitations in some other case he's racing off to file...." [more] Lithwick writes her reports for Slate. (10.03.2001)

Verbal liberalism, verbal conservatism. Justice O'Connor made some critical statements about the death penalty and about our society's over-reliance on lawyers in a speech on 07.02.2001 to an organization of feminist lawyers at the Hilton in Minneapolis. But, in "votes" since then, she has continued "siding" with the majority of the Court in upholding death-penalty challenges. According to this report in the NYT of 09.29.2001, she has spoken once again, on 09.28, this time to some law students in NYC. In this speech she speculated that as a result of governmental responses to the events of 09.11"we're likely to experience more restrictions on our personal freedom than has ever been the case in our country." She also posed some rhetorical questions to the students: "First, can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them? Second, at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that that legislation provides? These are tough questions," she said, "and they're going to require a great deal of study, goodwill and expertise to resolve them. And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases." I'm in a minority in my views, but I have been and am critical of judges giving speeches like this. Not to focus on Sandra Day, who's an o.k. judge, but in general speeches like this, of necessity, are wishy-washy. Worse, the wishy-washy statements are stereotypically judicial in prose style. Even worse, the statements are delivered in the usual judicial cadences, cadences that say, "I am filling the role of a judge and what I'm saying should sound profound. Because I am a judge, what I am saying must by definition be profound and should be treated as such." (About the last two points, I read recently a comment by Felix Frankfurter that judges should be judicial-minded but not always so judicial-sounding.) Finally, and again I'm speaking generally, judicial speeches, to the extent they say anything, are often, while not intentionally so, in some way misleading. Some judges, perhaps unconsciously, want to sound more "liberal" than they might seem to be in their rulings, e.g., their rulings upholding judicial executions. Verbal liberalism is the result. Pontius Pilate is the prototype, "washing his hands of the matter" of the judicially-sanctioned execution of Jesus Christ, laying the blame on the will of the crowd. On the other hand, other judges, perhaps unconsciously, often go on and on about the importance of judicial restraint. And then they go back to their chambers and somehow convince themselves that, by some happy coincidence, the Drafters of the Constitution had in mind what they themselves now have in mind. Perhaps I'm exaggerating to make a point. My point is this. It's o.k. for some judges, those who have something non-platitudinous to say, to give an occasional speech, assuming they're carrying a full load and are current in deciding cases. Holmes, who always wrote his opinions immediately after oral arguments were over, gave around 30 speeches in his 50 years as a judge. All but two of them (which are major addresses) are collected in a slim volume I have that is called The Occasional Speeches of Justice Holmes. Most all of them are still worth reading. Some, including one I read the other day and linked to, the Memorial Day Address in Keene, NH (click here), are among the greatest speeches ever penned. Most judges, however, would be better off staying in their chambers, doing the work we expect of them. After all, they already have a captive audience. And everything they say gets published, regardless of its merit. (09.30.2001)

"The media-judicial complex." Back in 1950's the late C. Wright Mills wrote a provocative book of sociological analysis titled The Power Elite. I read it in college in the early '60's in a course taught by the late Arnold Rose, who represented the area around the U. of MN in the legislature for a number of years. The book and some of Mills' other writings examined the way those at the top of society -- the celebrities, the very rich, the chief executives, military leaders, and others -- "get their way." [link to site with excerpts] While he was a speechwriter for Ike, Malcolm Moos, later President of the U. of MN, who presumably was aware of Mills' thesis, helped draft Ike's farewell address, the famous "military-industrial complex" speech, which Ike delivered 3 days before JFK took office on 01.20.1961. Now, in a comment on the latest political sex scandal in the UK, the Land of 10,000 Sex Scandals, the UK Independent has coined a new phrase, "the media-judicial complex." The latest scandal, involving the Hamiltons, erupted just days after the seeming-end of the one involving Lord Jeffrey Archer, the politician & best-selling novelist, who is now writing novels in a prison cell. As did the Archer scandal, this one involves payments by "the tabloids" for exclusive first-person accounts and heavy involvement of, and profit by, lawyers. The comment that coined the new phrase, which I may use in the future, is a classic of its sort and I refer you to it for its (typically British) brief, tart style. Click here. (09.01.2001)

Judge bans kids from playing in park by his residence. "Selfish giants are still at large, at least in Kolkata [Calcutta]. A judge in Chinsurah court, Shambhunath Chatterjee, has imposed a ban similar to that depicted in the famous fairy tale, on children playing within Siriti Housing Estate in Tollygunge." That's how The Times of India begins its report. Apparently the noise disturbs him. He is quoted by Ananova as telling a TV reporter, "As I am a member of the judiciary, it is the policeman's job to protect me. I get disturbed when the children play outside. The park is for us to move around, sit and talk, it is not for playing. They can go and play somewhere else." According to The Times, "he called up the police [one night] and two truck loads men in uniform arrived and summoned the parents of the children." Ananova quotes a parent as saying, "The police insisted it must be stopped; otherwise if Mr Chatterjee makes a written complaint, then the police will have no option but to take the parents of the children who play here into judicial custody and that will be for seven days." (09.10.2001)

Foes of monitoring of judges' computer use win first round. Since early August I have been commenting on a skirmish between Leonidas Ralph Mecham, Director, Administrative Office of United States Courts, and the Judges of the Ninth Circuit, U.S. Court of Appeals over the issue of monitoring of computer use by the judges and their employees. Ignoring the judges' objections, Mr. Mecham persuaded the Committee on Automation and Technology of the Judicial Conference, chaired by Hon. Edwin I. Nelson, U.S. District Court, Birmingham, AL, to recommend that the Conference adopt a "report on matters relating to information technology and security"

that "relieved employees of any expectation of privacy in their use of computers." Specifically, the report provided that judges and employees be deemed to "impliedly consent" to the recording and monitoring of all their activities, with or without cause, including their use of the internet and e-mail. There are many employment lawyers who are advising employers to adopt just such an outrageous and unjustified policy. I have been using my soapbox to rail against this for some time. Fortunately, the 9th Circuit has a brave and highly articulate judge, Hon. Alex Kozinski (right), who helped lead the opposition to the adoption by the Judicial Conference of this proposed policy. His opposition has included the publication of an Op/Ed piece in the Wall Street Journal titled "Big brother is watching you, your honor." Click here to read (free reg. req.). (Reader responses.) Opposition among judges built rapidly. The Electronic Frontier Foundation (EFF) joined the fray, stating that "if we can't trust judicial employees to use computers appropriately, then we shouldn't trust them to administer our courts," adding: "The intrusive monitoring of e-mail, Internet usage, case-related materials, and even private correspondence -- perhaps to be conducted by an outside commercial company -- raises serious privacy issues. Regardless of the legalities, spying on employees is bad policy, and anathema to a working environment that would otherwise attract trusted professionals and produce outstanding performance." Click here for more. For an excellent news&opinion piece by Jeffrey Rosen, legal affairs editor of The New Republic, click here. And see this report in the San Francisco Cronicle. According to Rosen, Mecham has quoted C.J. Rehnquist as saying he supports such monitoring. The issue was to come to a vote by the Judicial Conference on September 11. On Friday, September 7, I learned from a reliable source that C.J. Rehnquist had not expressed his support of such monitoring. Later that day I received a copy of a letter from Mr. Mecham to Judge Nelson urging him to withdraw the committee's proposal. The letter, in my experienced opinion, is a rather classic piece of bureaucratese. In it Mr. Mecham refers to "widespread misunderstanding" that "has been generated" regarding the report and states that "[i]t would not be in the interest of the judicial branch to have your entire praiseworthy report rejected because of confusion and fear over one minor provision" (emphasis supplied). In my imagination methinks it possible, even likely, someone -- C.J. Rehnquist? -- twisted Mr. Mecham's arm. In any event, Round One goes to those, judges and others, opposing this kind of monitoring. The question is whether Round One ended with a knockout. I hope so. As I've said before, I believe that those who see no problem with such monitoring are wrong, and that time and experience will demonstrate this. Justice Brandeis, the early champion of reasonable privacy rights, said that government, including the judiciary, is, for ill or good, "the great teacher." If the federal judiciary forsakes the monitoring of computer use by judges and employees, it will set an example that other employers, and perhaps the law itself, will follow. (09.08.2001) Update: The NYT for 09.09.2001 contains a report of the above that is worth reading because of Mr. Mecham's outrageous speculations as to the motives of Judge Kozinski in challenging the proposed monitoring. Click here (free reg. req.). I guess if you can't prevail on the merits of an issue, you challenge the motives of your opponent. Sad. Other reports, including updates: Inside.Com, Newsweek (focus on Judge Kozinski's role), UKRegister ("Judge trumps bureaucrat"), OrlandoSentinel (Committee's revised proposal), CNET (Questions raised re revisions), AmLawyer/Yahoo (Conference drops individual monitoring). More...

Courthouse architecture. I've commented critically before on the architecture of some of the new courthouses, or as they are now called, "judicial centers." Click here, for an example. I don't need to do anything but report the facts about the new "Sandra Day O'Connor Federal Courthouse" in downtown Phoenix, AZ. It seems the architect, from NYC, designed the courthouse to include a six-story atrium as "an inspiring place that belongs to the people and to the city." Unfortunately, the atrium is not air conditioned, presumably because that would use too much electricity. But this is Phoenix we're talking about! Read on... (ArizRepub) (09.08.2001)

Tough-talking Nevada judge. Back in 1994 Mike Jones and a co-defendant were convicted of jointly committing the offense of purse-snatching. The co-defendant, who actually grabbed the victim's purse, got a 5-year sentence. Mike, who was 24, asked the judge not to take him away from his five kids. The judge, Hon. Jack Lehman, didn't like hearing that because Mike had the five kids with four different women and was nine months behind in his support payments. Ranting and raving as he did so, Lehman sentenced Mike to 21 years, a pretty stiff sentence for purse snatching. His rantings included these comments: "Those five kids you haven't been supporting? Those five kids you brought into the world for no reason whatsoever....Those five kids who probably have your genes and are probably going to be criminals just like you. I want to -- if for no other reason I want to keep you from having any more kids." The attorney who handled Mike's first appeal didn't make an issue of the remarks, but a second attorney filed another appeal and the Nevada Supreme Court has now vacated the sentence and remanded for sentencing before a different judge. (more) Cases like this remind one how important it is that trial judges' decisions are subject to review. One shudders to think what some trial judges would do if the threat of review and reversal weren't hanging over their heads. The sad thing is, if this trial judge had kept his mouth shut and sentenced the defendant harshly for the same improper reason, the defendant wouldn't have obtained even the "iffy" remedy of a remand for resentencing, possibly to the same sentence. (09.06.2001)

Going easy on judicial nominee. Mississippi Gov. Ronnie Musgrove has appointed as district court judge a lawyer, Solomon C. Osborne, who "was publicly reprimanded by the Mississippi Supreme Court for misuse of client funds and for providing incorrect information to a federal bankruptcy court," a man who also "has nearly $176,000 in federal tax liens on record against him." The governor said that a lawyer will ultimately be judged as a judge by "his or her qualities in a courtroom." [more] To paraphrase Mr. Rogers, good lawyers sometimes do bad things. As we in Minnesota know, even groups of lawyers -- bar associations -- sometimes make mistakes. Click here. Let's hope Solomon Osborne will show the same understanding of human frailty as judge that the governor has shown in appointing him notwithstanding his missteps. (08.28.2001)

Going tough on judicial nominee. If Solomon Osborne's "past" doesn't disqualify him from judicial appointment, should Jeffrey Locke's?The governor in Massachusetts has named Locke, a D.A., to the Superior Court. A former criminal defendant alleges that Locke had him wrongly arrested in a high-profile murder caee while Locke was lobbying to get appointed "state secretary of public safety." The former defendant's lawyer, who got the charges dismissed, says Locke may have erred in charging his client, that mistake does not constitute a disqualifying character flaw. An eight-member governor's council on judicial nominations will decide Locke's fate. [more] (08.28.2001)

When good relations can be a potential problem. Catherine Curran O'Malley, a new district court judge who takes the bench this week in Baltimore, MD, has a minor problem: her husband is mayor and her dad is MD's attorney general. According to this story in Prince George's Journal, she has written the state's judicial ethics board for guidance on how to proceed (if she is allowed to proceed) in "civil lawsuits in which the mayor and city council are named; cases involving city solicitors; cases brought by Attorney General J. Joseph Curran Jr.; and even cases involving police officers, because they answer to the commissioner, who was appointed by Mayor Martin O'Malley." This sort of "problem" is arising more than it used to because of the increasing number of two-career couples. In cases of a potential conflict because of a relationship, it is my sense that the big worry usually is (or should be) not that the judge will favor her relative or friend, but that she will not just "bend over backwards" to be fair to the other side but will wind up actually being unfair to her relative or friend in the process of doing so. I don't know that the ethics folks can or should establish hard-and-fast rules to prevent or deal-with conflicts like this. My personal starting point in such a situation would be the writings of Andrew L. Kaufman, my former teacher at Harvard Law, who wrote a seminal law review article on the subject a number of years ago. I corresponded with him about the topic at that time. Undoubtedly has developed his thoughts on the subject more fully since then. (08.28.2001)

Super-independent judges like "Mr. Bean." Last week it seemed as if Iran's super-independent judges were basically "saying 'no' to life." First, they announced a crackdown on girls wearing tee-shirts, on men wearing ties, on women wearing makeup, and on men and women holding hands. Then they they stunned the dog-lovers of the world when they announced they were cracking down on, of all things, the ownership of dogs, which they apparently deem "unclean" and "un-Islamic." [more] That doesn't play well with Americans, who re-elected President Roosevelt in 1944 partly because he "defended" his dog Fala and who prevented Ike from axing Dick from the ticket in 1952 after Dick vowed to keep his dog Checkers. But now we find that even reactionary judges with too much power and independence have a bit of the life force in them: they like Mr. Bean. A leader of a group of Muslim extremists has been arrested and is standing trial for "disrupt[ing] a comedy show" featuring "Hamid Reza Mahi-Sefat, an Iranian version of the bumbling British bachelor, [Mr. Bean]." [more] (08.28.2001)

Ohio legislator wants to restrict Ohio Supreme Court's authority. As things now stand, the Ohio Supreme Court, which has seven members, can declare an act of the legislature unconstitutional by a simple one-vote 4-3 majority. This is true in most, maybe all, states; it is also true in the U.S. Supreme Court. In fact, all that is typically needed is a majority of the judges voting. An Ohio legislator has proposed changing that state's constitution so that a vote of five of the seven justices would be needed. [more] Such a proposal is not novel. The party or person resurrecting the proposal typically has just lost a case by that margin. In other words, if theU.S. Supreme Court had decided Bush v. Gore by a 5-4 vote in Gore's favor, the Republicans might be howling that their ox was Gored. Instead, it's Democrats complaining that their Gore was oxed by the requirement. The late Justice William J. Brennan, who accomplished much of his agenda by 5-4 majorities, was fond of saying, "With five votes you can do anything around here." In my opinion, that a hell of a poor attitude for a judge to have, but it is the fact of the matter. And it is unlikely that that is going to change either on the federal level or in any of the states, Ohio included. (08.27.2001)

Do jury pools run too deep? That's what some people are saying in FLA, as more and more people in the pool are found to have "checkered pasts." Of 18,200 people called in one FLA county, 2,917 people were determined to be wanted on open warrants or criminal summonses. As a result, some people are questioning the use of driver's license records rather than voter registration lists to select jurors. But some say that those who are longing for "the good old days" are longing for "the good ol'" less-diverse and more-compliant juries that favored the prosecution more in criminal cases. A senate committee is studying the matter. Click here for more (TallahasseeDemocrat)

Supreme Court of Canada complains of sloppy work by lawyers. Occasionally the Supreme Court in Canada serves the members of the legal profession with "notices." The National Post reports that the court's latest such notice is based on a number of recent instances of sloppy work by lawyers. The notice itself is rather terse, referring to instances of failing to inform the court of "amendments to legislation pertinent to the appeal, further proceedings in the case, correlating proceedings in a foreign jurisdiction between the same parties and changes to the reasons for the judgment from which the appeal was brought." I don't doubt the "notice" is justified. I suspect many appellate courts in the U.S. have had similar experiences with sloppiness (or worse) by counsel. But I also suspect that many lawyers who practice before these courts could serve some interesting "notices" regarding various judicial failures. If courts really want to show they care about deciding cases correctly, fairly, promptly, economically, consistently, and clearly, they ought to create court equivalents of complaint boxes and suggestion boxes. A petition for rehearing serves a very specific purpose in the appellate process and is not an adequate or proper vehicle for encouraging and obtaining feedback, criticism, and suggestions from attorneys and from others regarding the judicial process. In the spirit of cross-border or "over the backyard fence" friendship, I am putting the following bit of specific advice in the imaginary suggestion box of the woman identified on the website of the Canada Supreme Court as "The Right Honourable Chief Justice of Canada, Beverley McLachlin, P.C." My advice to her is to drop the flowery welcome she has penned to the site, which reads: "Through thousands of decisions, the Supreme Court of Canada has woven the tissue of Canadian justice. If one searches one can find missed stitches. But usually one finds that they have been taken up and reworked to make a fabric that is strong, serviceable and satisfying to our sense of how things should be in this, our part of the world. I think it is not exaggerating to say that in its first century and a quarter, the Supreme Court of Canada served Canadians well." How one misses Justice Holmes' prose style when one reads self-congratulating, dainty tripe like that. (08.25.2001)

Ignorance of the law. The Ohio Elections Commission is conducting a hearing into violations of campaign-finance law by Trumbull County Sheriff Thomas L. Altiere. "Tom" basically pleaded ignorance of the law, saying he didn't knowingly violate it. [more] One hopes the commission will go easy on Tom. Hey, even bar associations sometimes find campaign finance and reporting laws confusing. Click here. If we're going to go easy on lawyers when they violate the law -- especially when they do so for the noble purpose of aiding the elections of sitting judges before whom they practice -- we oughta go easy on sheriffs who aren't learned in the law, just mere enforcers of it. And if we go easy on Tom and others like him, maybe they'll show a little humanity and understanding as they merely ministerially enforce the law. (08.25.2001)

Judicial thought control. Last year, by a vote of 8-4, the judges of the 8th Ohio District Court of Appeals, which hears appeals from the Cleveland area, adopted a rule that court opinions should identify trial judges and attorneys involved in the case only if it is "essential to clarify or explain'' their roles. According to news reports in the Columbus Dispatch and the Cleveland Plain Dealer on 08.22.2001 (click here and here), the eight judges who voted for the rule "felt someone reading a decision could draw an unfair or incorrect inference." One judge, James Porter, now retired, is quoted as stating that identifying the trial judge "leaves the inference that the judge did something wrong." A newer judge on the court, Anne L. Kilbane, backed by the Ohio branch of the ACLU, has asked the Ohio Supreme Court not to approve the rule. The ACLU attorney points out that the ban makes it difficult for the public to evaluate the work of trial judges and makes it harder for attorneys , who often need to contact the attorneys who worked on a case that may have precedential or other value for them. Porter complained that the public airing of what he said is an internal dispute has hurt the relationships of the judges on the bench. I think it's transparent that the rule exceeds the authority of the majority members of an appellate court. It is a sine qua non of being an appellate judge that in every case the judge is free to "write separately," either in concurrence or dissent. While the majority of the court is free to adopt a rule specifying the format and content of the heading of "the court's" opinion, it is not free to restrict what an individual judge says when writing separately (and Judge Kilbane still includes the names in her opinions). Moreover, the rule itself is idiosyncratic and eccentric: most appellate courts recognize that the information in question belongs at least in the formal heading of each of the court's opinions, although not necessarily in the actual text of the court's opinions. (It may make sense generally not to include the information in the actual text of the court's opinion.) In an era when appellate judges have assigned too great a weight to the amorphous supposed virtue that they refer to as "colleageality," it is refreshing to read of a judge -- in this case Judge Kilbane -- who puts principle, openness, and accountability above colleageality. For more of my views on courts, click here, here and here. (08.22.2001)

When judges misuse doctrine to deflect criticism. Once upon a time in a small town in the Midwest a man, with much fanfare, took charge of a community celebration that theretofore had been organized each year by some women. The good citizens were not impressed with the changes the man made to the celebration in an attempt to put his mark -- his dog markings, as it were -- upon it. Aware of the criticism of his efforts, the man started a speech by quoting Dale Carnegie, the author of the only book the man had ever read, How to Win Friends and Influence People. The quote was, "As that great philosopher, Dale Carnegie said, there are three 'C's' to getting along with people: 'Don't criticize, don't condemn, don't complain.'" Throughout my life I have observed people use similar arguments to try deflect criticism or set themselves above it. President Johnson, as many Presidents before him had done in similar circumstances, used the argument to try prevent criticism of his decisions regarding our participation in the Vietnamese civil war. Today judges regularly wave the flag of "judicial independence." It is a flag they believe should protect them the way the Red Cross flag protects relief workers in war zones. These politicians -- judicial politicians but nonetheless politicians -- want us to believe they are "the good guys" and we should just leave them alone to do their business. Not a bad approach if they can pull it off. On Tuesday of this week Madame Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada, tried to pull it off. She said, to a gathering of lawyers, "I would ask the people in the media to [tell] me what is productive in personal attacks against judges, and the pressure that it puts on the judiciary? It is so unproductive that to me, it is a sliding slope, an attack really, to independence of the judiciary." As The National Post reports, "Judge L'Heureux-Dubé was at the heart of a very public brouhaha in 1999 after [she herself] publicly criticiz[ed] a[ female] Alberta judge who had questioned the morals of the victim in a sexual assault case." That judge responded by denouncing Judge L'Heureux-Dubé "for being anti-male and said her attitude could provide 'a plausible explanation' for the increasing rate of male suicides in Quebec." I guess the truth is that Judge L'Heureux-Dubé believes public criticism of judges is o.k. if she is the one doing the criticizing. (08.16.2001) For some of my views on the subject of judicial independence, click here.

Another story about an "independent" judiciary - Iran's. Interestingly juxtaposed in the same issue of The National Post is another report of the activities of Iran's neutral arbiters and self-designated good guys, the super-independent judges. Yesterday, during rush hour in Tehran, 13 men, by judicial directive, were flogged in the public square as punishment for the offenses of drinking alcohol and/or harassing women. According to witnesses, "Blood flowed from the bare backs of the young men." Surprisingly, there are folks in Iran these days who are publicly criticizing these judges whose motives are pure, these wise men who know better than democratically-elected reformers, these devout men who are above and immune from criticism. Shame on the critics. Their criticisms constitute a threat to the independence of the judiciary. :-) (08.16.2001) More: The Scotsman (outcry over public hangings, floggings) (08.17.2001), ChiSunTimes (no more makeup, sexy tees or neckties) (08.19.2001) CNN (female legislator sent to prison for improper statements) (08.21.2001) NationalPost (dogs are "unclean," music is bad) (08.21.2001) BBC (Iran's super-independent judges defend selves) (08.27.2001) BBC (Iran's prez criticizes super-independent judges) (09.01.2001) For a brief essay explaining my views on judicial independence, click here.

And a story about trying to establish an independent judiciary - in China. "A favorite opera character for ordinary Chinese is the black-faced Bao Gong (Justice Bao), an ancient, saintly arbiter so incorruptible that he even punishes the emperor's son-in-law. Few of today's Chinese judges, who are poorly paid and widely perceived as inept or corrupt, command the same respect...." But, according to this excellent report in CSMonitor, China's massive transition to a market economy is bringing with it fundamental reforms in the judicial system. One should not be surprised. Free Enterprise isn't free, and doesn't work, if courts either lack independence (which is and has been the case in China) or are "too independent" (as was the case when the USSCt misused "substantive due process" and other doctrines to override "reasonable" democratic decisions of the Congress and the state legislatures addressing the excesses of Free Enterprise). (08.16.2001) For a brief essay explaining my views on judicial independence, click here.

Trials that are trials. Japan Times reports today (08.16.2001) on a blue-ribbon panel's call for certain judicial reforms. The Times focuses on judicial delays, saying that in Tokyo the "wheels of justice [have] rust[ed] to a halt." Four trials in Tokyo have continued for 10 years. The trials have lasted that long partly because of the practice of hearing evidence for a day, then continuing the trial for a period before hearing more evidence. Surprisingly, there are judges here who think they are being progressive in following this practice. There's one, for example, who tries to scare divorce litigants into settling by repeatedly lecturing them on the wide discretion he has and by conducting piece-meal trials. This "innovator" will "hear" evidence for a few hours on an issue, make findings, and then continue the trial. The hope, of course, is that he'll be spared having to try the remaining issues because the parties will settle in the interim. It's no concern of his that the practice, in conjunction with other "practices," results in some cases not being finally decided until years after one spouse files for divorce. Meanwhile, attorney fees mount and people who simply want a quick and impartial decision are required to postpone their lives. But I shouldn't say any of this, because public criticism of judges constitutes a threat to judicial independence. (08.16.2001)

Reverend Judge Jimmy Myers, a bachelor, files criminal complaint in NC against adulterous couple. North Carolina still has a statute (§14-184, enacted in 1805) making it a "class 2 misdemeanor" for a man and woman who aren't married to each other to "lewdly and lasciviously associate, bed and cohabit together." Minnesota, where I live, also still has an adultery statute (Minn. Stat. §609.36, part of a criminal code adopted in 1963). The Minnesota statute, which at least as worded is of questionable constitutionality, provides: "When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery," a gross misdemeanor punishable by up to a year of incarceration. Despite the popularity of adultery, I don't think anyone in MN has been prosecuted under §609.36, but occasionally folks in NC are prosecuted. There's a bachelor judge in NC named Jimmy Myers, who also is an ordained Methodist minister. The other day "Judge Jimmy" was conducting a hearing at which a mother sought custody of two daughters she had with her husband, from whom she is separated. During testimony the judge learned that the mother and her girls were living with her boy friend. So shocked was the judge by this revelation that he not only granted temporary custody to the father but summoned a magistrate to draw up papers charging the mother and her boy friend with adultery. The magistrate then escorted the two from the courtroom and they were released on bond. The judge said he was "appalled" at the adulterous conduct. It is now up to a district attorney whether to prosecute the case. More (CharlotteObserver)

But in AL you can sue boss for damages if he assaults you on learning you're having an affair with his wife. The case is Wood v. Cowart, (Ala App Civ 2001). Facts alleged: plaintiff Wood, employee of Cowart Enterprises, was riding in back of pickup truck being driven by his boss, Cowart. Cowart received word in a cell phone conversation that Wood was having an affair with Cowart's wife. Cowart stopped truck, confronted Wood, beat him with pipe. Wood fled on foot. Wood filed suit for injuries, including broken arm. According to this news report (DaytonaBeachNewsJournal), the trial judge ruled as matter of law that because Wood committed "the crime of adultery," he "assumed the risk" that the cuckolded spouse would assault him and therefore "he is not entitled to recover compensation for his injuries." Now the Alabama Court of Civil Appeals, by a 5-0 vote, has overturned the trial court and remanded for trial. I think it's clear that most American appellate courts would hold as the court of appeals did. It is less clear how Wood's claim will fare with an Alabama jury if the case is not settled. After all, last November the good voters of Alabama.... [more] (08.19.2001)

The ABA's Standing Committee on the Federal Judiciary. Here's a link to an interesting background piece in Legal Times via Yahoo re the ABA committee that used to get to screen Presidential nominees before the President announced the nominations. President Bush put an end to that practice this spring in response to increasing criticism by the Federalist Society and numerous Republicans that in recent years the committee had displayed a clear "left-wing bias" in its ratings. Click here, here and here. The piece, while suggesting that members of the committee try hard to be objective, reveals also that those selected as members of the committee almost always are "litigators," i.e., only one flavor of the many flavors of lawyers. Almost by definition and certainly in my experience, litigators in general are the least scholarly, most combative, and least likeable of all lawyers. At least, that's my opinion. Moreover, in almost all cases the litigators chosen are law firm "partners," with all that that means. And they most certainly are "bar association types," with all that that means. How ridiculous to rely primarily or preferentially on their recommendations as to the qualifications of Presidential nominees. Add to the mixture the mysteriousness and the secretiveness of the ABA committee's procedures and one wonders why it took so long for the Executive Branch, whether or not peopled by Republicans, to stop giving the committee a preferential role in the nomination-confirmation process. Here, as in so many areas of decision-making, ye olde "totality of the circumstances" approach makes sense. In short, any relevant information volunteered by the ABA should be considered, for what it's worth, along with all the other relevant information available from all reputable sources in making both the nomination and confirmation decisions. (08.11.2001)

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

See, also, LawAndJudicialEconomics.

Front page