pageok
pageok
pageok
Rosen on Sotomayor, Part Tres:

Jeff Rosen may have quit blogging, but he's still writing articles about Judge Sonia Sotomayor. His latest appears in Time magazine. Here's a taste:

An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways. . . .

Sotomayor does not appear to be a crusader for radical change. She has always sought change from within the system rather than fundamentally challenging its premises. As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students. But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates. Sotomayor's experiences as an outsider in an Ivy League world seem to have made her pragmatic rather than rigid, leading her to thrive within the Establishment even as she sought to improve it. . . .

Sotomayor's unique background and views about race and gender are likely to become more important over time. In coming years, there may well be challenges to the death penalty, for example, on the grounds that it is imposed in a racially discriminatory way. The court rejected that claim in 1987, but Sotomayor might be sympathetic to it. In 1981, as a member of the board of directors of the Puerto Rican Legal Defense and Education Fund, she was part of a committee that recommended that the fund oppose the reinstatement of the death penalty in New York State on the grounds that "capital punishment is associated with evident racism in our society."

Sotomayor's more liberal inclinations in immigration cases may also make a difference on a court that will increasingly have to wrestle with legal distinctions in the U.S. between citizens and aliens. As Obama disappoints civil libertarians by reaffirming aspects of President Bush's antiterrorism policies — including the claim that terrorism detainees held by U.S. forces in Afghanistan have no legal right to challenge their detention in U.S. courts — some of these policies may reach the Supreme Court. Sotomayor could prove skeptical of the claim often made by the government that the rights of aliens differ sharply from the rights of citizens in the war on terrorism and in other cases.

If Sotomayor is confirmed, as expected, the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor's thinking in the years ahead may be more consequential than what she has said in her past.

Tony Tutins (mail):
Rosen does not mention that, by affirming the district judge's decision, Sotomayor failed to support her brother Latino, plaintiff Benjamin Vargas. Surely this indicates Sotomayor is colorblind.
6.13.2009 7:17pm
Cato The Elder (mail):
This is the same William Bowen, of Bowen and Bok's The Shape of the River, a book justifying and advocating for the role of affirmative action in college admissions, referenced, am I correct?


Sotomayor's unique background and views about race and gender are likely to become more important over time. In coming years, there may well be challenges to the death penalty, for example, on the grounds that it is imposed in a racially discriminatory way. The court rejected that claim in 1987, but Sotomayor might be sympathetic to it.


That is not a moderate position. It is not even a particularly tenable position when the sentencing statistics are studied. It is a reflexive position of unthinkers who postulate all-pervasive racism and discount a very visceral application of the justice ideal and suck their thumbs to ponder a more complicated and controversial question of "social justice", if we can even agree on the reality of the notion.

It seems that Rosen has won a mental victory over his earlier no good, very-bad criticism of Sotomayor. They must have punished him severely.
6.13.2009 7:23pm
Cato The Elder (mail):
I did not reference any citation when I stated, "it is not even a particularly tenable position", which was unfair of me. Here is a good article by John Lott, albeit a partisan, who collates a pretty good summary of the evidence, when he participated in a monthly forum held by the Cato Institute debating sentencing as it relates to racial disparities. In the end, Glenn Loury, the chief protagonist, I felt was reduced to arguing the claim that the death penalty and the length of sentences in America are too severe for the crimes committed, a variant of of the more mainstream &lawyerly position that the death penalty is "cruel and unusual punishment." The claim of disparities based on invidious discrimination doesn't seem to hold up, from what I have researched.
6.13.2009 7:44pm
Steve:
She might rule this way. Then again, she might rule that way.
6.13.2009 7:52pm
Hans:
This article shows that Jeffrey Rosen will sacrifice his integrity to try to ingratiate himself with people angered by his unflattering, but well-grounded, assessment of Judge Sotomayor's qualifications in a past article.

This is the same William Bowen who treated the Duke Lacrosse players as obviously guilty, and trashed Duke for supposedly not taking Crystal Mangum's obviously false rape charge seriously enough. (See his remarks quoted in the Durham Herald-Sun).

(DNA evidence proved the players' innocence, the North Carolina attorney general has admitted it, and the complainant, who had a history of violence and making previous false charges, had given inconsistent and absurd accounts of the falsely-alleged rape).
6.13.2009 8:20pm
Sarcastro (www):
Careful everyone! Unless you ignore the fact that a black murderer is like four times more likely to be sentenced to death than a similarly situated white murderer, you are an unthinker!

Remember kids, always elevate the procedure above the results, if you want to keep thinking.
6.13.2009 8:26pm
Andrew J. Lazarus (mail):
Cato says we should heed John Lott, known fabricator. William Bowen, he may be mistaken, but I don't think he's ever pulled stuff out of thin air like Lott. In the case of the article Cato references, I bothered to read it (slow day), and I notice it doesn't discuss the real disparity in death penalty sentencing, that it depends on the race of the victim. In an essay that appears to promote the death penalty because (1) it reduces crime and (2) blacks are disproportionately victimized by crime, he omits racial statistics as actually practiced. That is, the situation on the ground is the opposite of Lott's ivory tower assumption/suggestion. What a fine judge this clown Lott would make. Much better than Sotomayor.

I'm waiting for Cato to explain why all of Sotomayor's good grades plus the Pyne Prize are a result of affirmative action. I'm sure he believes it, he just doesn't have the grace to say it.

This week Pat Buchanan shares Cato's alarm about the persecution of white males that has become so serious in this country that men like von Brunn must take up arms against it. (Or is it too gauche to associate the gentlemanly racists with their violent, rabid siblings?)
Thus, Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review -- all because she was a Hispanic woman. [evidence?–AJL] And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve [by being born to Princeton alumni; as we recall from Justice Alito's freedom-loving group CAP–AJL], for reasons of race, gender or ethnicity.

This is bigotry pure and simple. To salve their consciences for past societal sins, the Ivy League is deep into discrimination again, this time with white males as victims rather than as beneficiaries.

One prefers the old bigotry. At least it was honest, and not, as Abraham Lincoln observed, adulterated "with the base alloy of hypocrisy."
Of course, the old bigotry didn't have much negative impact on Buchanan and Cato, but only the uncultured would accuse them of self-interest in their love of freedom.
6.13.2009 8:38pm
Bpbatista (mail):
What exactly is a "racial moderate"? Someone who is a racist only part of the time?
6.13.2009 9:13pm
zuch (mail) (www):
Cato the Elder:Here is a good article by John Lott,...... co-authored by Mary Rosh. Lott is almost as bad a 'statistician' as is Steve Milloy (a/k/a "the Junkman"). They both prove S.L. Clemens's bon mot.

Cheers,
6.13.2009 9:15pm
Xanthippas (mail) (www):

This article shows that Jeffrey Rosen will sacrifice his integrity to try to ingratiate himself with people angered by his unflattering, but well-grounded, assessment of Judge Sotomayor's qualifications in a past article.


And your comment shows that you regard anonymous and gossipy opinions as part of a "well-grounded assessment" of someone's qualifications. I think that alone should disqualify you from contributing to this conversation.
6.13.2009 11:37pm
Constantin:
Rosen must have really missed the month's worth of cocktail parties he wasn't invited to.

A few more columns of being a good boy who is very sorry, and maybe Ezra &Maureen will give him the password to the clubhouse again.
6.14.2009 1:13am
Constantin:
I'm waiting for Cato to explain why all of Sotomayor's good grades plus the Pyne Prize are a result of affirmative action. I'm sure he believes it, he just doesn't have the grace to say it.

She's said herself she was an "affirmative action baby" at both Princeton and Yale Law School. If she was so dominant at Princeton, on straight merit, and still couldn't get into Yale Law other than via tokenism, that must have been one heck of a lousy LSAT.
6.14.2009 1:17am
Psalm91 (mail):
The conservative equation: Hispanic=Unqualified. There is simply no record of achievement which will disprove it.
6.14.2009 1:20am
Constantin:
The conservative equation: Hispanic=Unqualified. There is simply no record of achievement which will disprove it.

Yep.
6.14.2009 1:47am
Psalm91 (mail):
What exactly was in the concealed Estrada memos? Why were they not released?
6.14.2009 3:11am
Bouldergeist (www):
Scalia was right. If all we needed were lawyers capable of applying the law of the land to the true facts of each case, we could almost pick our judges at random from the phone book. But in substance, what we are doing here is picking our next Ayatollah Khamenei -- an unaccountable supreme dictator for life. And like our Iranian counterparts, the common people have no say in who this new Ayatollah will be, or how s/he will interpret Islam-- er, the rule of law.

The only salient difference between us and the Iranians is in who our mullahs are. But yet, you people are so lost in the horse race that no one cares about the big picture. Am I the only one who sees the absurdity in this?
6.14.2009 8:05am
mattski:

Am I the only one who sees the absurdity in this?

Quite possibly so.
6.14.2009 8:20am
wolfefan (mail):
Off topic, but still...

What is this obsession some folks have with cocktail parties? Do some of these folks really believe what they say? Do conservatives not have cocktail parties to go to? Are they always separate from liberal cocktail parties? Do DC area charities not provide crappy food and accept checks from conservatives? Are conservative parties so bad that conservatives have to violate their core principles from time to time just to get a decent martini?

FWIW, the latest issue of The Washingtonian, which pays a little attention to this kind of stuff, has a nice picture of Todd Palin at a local cocktail party...
6.14.2009 9:28am
Bouldergeist (www):
BG: "Am I the only one who sees the absurdity in this?"

Mattski: "Quite possibly so."

Think about it for a minute. Our judges have been exercising veto power over the law for decades -- not only at the SCOTUS level but at the lower and intermediate court level. SCOTUS only gets involved in 80 cases a year, and almost never gets their hands dirtied in error-correction, as Orin has pointed out. If a judge doesn't like "the law," s/he simply ignores it.

Without imposing reasonable constraints upon the freedom of judicial action, we are left with degradation of the law on an unimaginable scale. As Sandra Day O’Connor wrote:
The importance of the judicial branch to citizens of every country, and the crucial need for an independent judiciary free from political and private pressure, was eloquently expressed by John Marshall long ago: “The Judicial Department comes home in its effects to every man’s fireside. It passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that [the judge] should be rendered perfectly and completely independent, with nothing to influence him but God and his conscience?
Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 248 (2d ed. 2004) (quoting Chief Justice Marshall, speaking at the Virginia Constitutional Convention of 1820; emphasis added).

Change the word from “judge” to “King” -- or better yet, “Khamenei” -- and the point is obvious. The power to make plenary decisions over others’ lives without any semblance of accountability is one arrogated by absolute dictators. If our judges cannot be tethered to the rule of law, there is no rule of law.

The only reason anyone is fighting over Sonia Sotomayor is that everyone knows that our federal judges are no longer judges per se, but Khamenei-class dictators.
6.14.2009 10:15am
Cato The Elder (mail):
I agree with you Bouldergeist. It's a sad state of affairs. Like Scalia said, no one actually thought anything but originalism was the proper judicial philosophy for most of American history.

But I am curious, you seem to be an activist of some sort. If you are, what for, honest question? You don't seem to hew to the typical conservative/liberal divide but something about the violations of law in particular.
6.14.2009 10:21am
SATA_Interface:
And if we think of due process that grew from Common law overseas, it was to hem in judicial powers granted by the King, where justices would act on the King's wishes to imprison without charges, set excessive bails, etc.
6.14.2009 10:25am
loki13 (mail):

Like Scalia said, no one actually thought anything but originalism was the proper judicial philosophy for most of American history.


No. This is simply incorrect (not that Scalia may or may not have said it, but that this was a dominant judicial philosophy).

Read through really early cases. Y'know- the Jay / (Rultedge/Ellsworth) Marshall decisions. Do you know what you don't see? Originalism. And that's when it would have been the easiest philosophy to use because they were (or knew) the major *original* players of the time. There was no cult of the Founding Fathers or "originalism". Heck- look to the Supreme Court cases after the passage of the 14th Am. Notice much "originalism"? Not so much, huh?

Without going too deep into it, they didn't give a fig about originalism. When they did have a jurisprudential philosophy, it was much more of the Aristotlean "natural law" approach. They simply extended their judicial feelers into the ether to fully grasp the perfect unchanging natural law and scooped some of that up and used their logical, precedent and wordz (aka statutes and constitutional text) to attain a result, believing that there was an evolution of their result to the more perfect form of the law that existed in the ether. See also the reasoning of J. Story prior to Erie. Or the terretorial view of rights in the old Conflicts cases. Etc.

Anyway, originalism is very much a new fad. And too that, all I have to say it this:
1. The cult of the Founding Fathers has been taken a little too far.
2. Fundamentalism (there can only be one correct interpretation, and it is mine) is always creepy.
3. As historians, lawyers should keep their day jobs.*

*To build on this last point, when people look to the past they tend to focus only on certain things. For example, some people talk about the "idyllic 50s". Well, that tends to overlook the position of minorities and women (just to start) in this country. Lawyers are trained to be advocates. Is it any surpriise that when they look over 200 years in the past, they tend to find the exact things that support their own a priori beliefs?
6.14.2009 10:58am
John Skookum (mail):
"As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students.

But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates."

Perhaps so, perhaps not. This could be merely a sop.

Given the decades of spinelessness displayed by the academy in the face of racialist mau-mauing, I wouldn't even necessarily trust Mr. Bowen himself to give an accurate account.


"The conservative equation: Hispanic=Unqualified. There is simply no record of achievement which will disprove it."

No, it's not "Unqualified", it's "May be unqualified". Like it or not, this is the fruit of affirmative action.
6.14.2009 11:13am
geokstr (mail):

Bouldergeist:


BG: "Am I the only one who sees the absurdity in this?"

Mattski: "Quite possibly so."

Think about it for a minute. Our judges have been exercising veto power over the law for decades -- not only at the SCOTUS level but at the lower and intermediate court level.

The JD/LLD class identity, particularly on the left, is very much enamored of its own omniscience, as is evident from the comments to every post on this site. Evidently, no other profession or group of people of any kind can boast of as much accumulated intelligence, wisdom, knowledge, compassion or empathy. Thus you will see here much of this:

- any intelligent person would agree with me
- anyone who believes differently is a _____ (Choose one or more: moron, idiot, liar, hypocrite, fraud, Christian, conservative)

You will see little enthusiasm here for curbing the power of judges, or reigning in out-of-control litigation.
6.14.2009 11:20am
Tony Tutins (mail):

No, it's not "Unqualified", it's "May be unqualified". Like it or not, this is the fruit of affirmative action.

Sotomayor's record closely tracks Alito's, but Sotomayor's is more impressive in every way than Alito's. If she is unqualified, so must Alito be.


You will see little enthusiasm here for curbing the power of judges, or reigning [sic] in out-of-control litigation.

Play fairly, harm no one, and live up to your committments, and you'd be surprised how much litigation would melt away.
6.14.2009 11:37am
geokstr (mail):

loki13:
...some people talk about the "idyllic 50s". Well, that tends to overlook the position of minorities and women (just to start) in this country.

And the left likes to use this canard to discredit all the good things about the "idyllic 50s". When the wonderful me-me-me generation of the "drug-induced 60s" came along, they threw out not only the baby with the bath water, but also trashed the crib, and burned the house down.

How about we say instead, that we keep the good things about today, like equality before the law (but not of outcome) for everybody, including women and minorities? Does that mean we can't still have kids that learn math and citizenship in schools, much lower violent crime and druG abuse rates, vanishingly small abortion, teen pregnancy and out-of-wedlock birth, more civility, and many other very important things that have been lost as well?

Or are these mutually exclusive?
6.14.2009 11:38am
Bouldergeist (www):
Cato:
But I am curious, you seem to be an activist of some sort. If you are, what for, honest question? You don't seem to hew to the typical conservative/liberal divide but something about the violations of law in particular.
I maintain that the rule of law is the sine qua non of civilized society, and that our government has voided the Bill of Rights for want of enforcement:
The principle of the Rule of Law requires not only that the law should apply to everyone -- citizen and state, rich and poor, powerful and weak -- but that there should be effective legal remedies for use where there is a breach of the law. The Rule of Law does not cease to operate merely because the law is broken -- crime exists in all societies -- but it is violated if someone is able to break the law with impunity because legal remedies do not exist or because he is too powerful for them to be applied to him.
R.C. Simpson, Gouriet: The Constitutional Issue, 41 Mod. L. Rev. 58, 58 (Jan. 1978) (emphasis added).

Thomas Jefferson once said that when the people fear the government, there is tyranny, and when the government fears the people, there is liberty. We live in a state not too different than the Islamic Republic of Iran, as our rulers fear neither the law nor the people.

Whether it is the Bush Administration defrauding us into a for-profit war and committing an array of war crimes in its prosecution, the Obama Administration confiscating property in irregular bankruptcy court proceedings, or federal and state judges writing ad hoc "law" applying to one and only one set of litigants, we have lost the ability to wield the shield and sword of the law to protect our interests. When a federal judge willfully favors a friend or colleague over another in a lawsuit, it is scarcely possible for her to not commit honest services mail fraud, as we all have the statutory right to the intangible benefit of the honest services of public officials. 18 U.S.C. Sec. 1346. But what good is "law" that exists only on paper, and cannot be enforced at need?

My activism -- and more accurately, our activism -- is strictly non-partisan; some of us are to the left of Rachel Maddow, and the right of Genghis Khan. Our legal system has become a transparent farce, and the people who should know better -- the Randy Barnetts and David Kopels -- have remained strangely quiescent. "Anyone, then, who knows the good he ought to do and doesn't do it, sins." Jas. 4:17.

For example, SCOTUS has abandoned wide swaths of the law, as anywhere from 60-80% of its threadbare docket is dedicated to resolving conflicts between various courts of appeals, and it has abandoned any and all pretense of policing irregular, censurable, and otherwise outright corrupt decisions of our inferior appellate courts, with instances of pure error correction occurring so rarely as to be remarkable. Orin Kerr pointed this out ... but where was the outrage? There is no law without enforcement!!!

Personally, I'm a libertarian with a small "l," which means that I am in foul odor in both organized parties. I agree with Barnett's reading of the Ninth and Tenth Amendments, and find his "presumption of liberty" incorrigible. Unless you are at liberty to do what I don't like (as long as it doesn't hurt me, of course), you are not free.
6.14.2009 11:38am
loki13 (mail):

For example, SCOTUS has abandoned wide swaths of the law, as anywhere from 60-80% of its threadbare docket is dedicated to resolving conflicts between various courts of appeals, and it has abandoned any and all pretense of policing irregular, censurable, and otherwise outright corrupt decisions of our inferior appellate courts, with instances of pure error correction occurring so rarely as to be remarkable.


Bouldergeist,

Good to see you again! Just wanted to point out a few things to help you:

1. The increased emphasis on Circuit Splits is an announced intention of CJ Roberts. I had the pleasure of hearing him speak once, and while I disagree with him on many issues, he is a charming speaker. His major point is that the Supreme Court's function is not to serve as a court of error, but rather to harmonize the law, since they are often in the worst possible position to determine errors (of fact).

2. In keeping with this idea, you should probably differentiate errors (injustices) when it comes to courts getting things wrong (facts, the overall decision, the "equities") and misapplying the law. Those are two very different things; the former is a difficult issue and tough for appellate courts; the second should b easy for them.

3. Your solution, again, begs the question. We have a similar system in state courts- where is the outrage there? If someone loses at the (Federal) DC level, they can appeal it, and they have a panel decision. Then they can appeal it en banc (admittedly, unlikely). Then they can appeal it to SCOTUS. This is ignoring all collateral attacks on the litigation. So here's the question-

If a case involves the misapplication of the law by the DC, and it is appealed to three judges, who also (in your view) misapply the law (and assumedly, their clerks), and it is denied rehearing en banc, how many more levels of appellate review should you have? Why not have a SUPERSCOTUS to review SCOTUS decisions? And a SUPERDUPERSCOTUS to review SUPERSCOTUS decisions etc. ad infinitum? What percentage of extra cases involving misapplication of the law would be corrected, and at what cost in terms of time, finality, and money?
6.14.2009 11:54am
Bouldergeist (www):
loki:
Read through really early cases. Y'know- the Jay / (Rultedge/Ellsworth) Marshall decisions. Do you know what you don't see? Originalism. And that's when it would have been the easiest philosophy to use because they were (or knew) the major *original* players of the time. There was no cult of the Founding Fathers or "originalism". Heck- look to the Supreme Court cases after the passage of the 14th Am. Notice much "originalism"? Not so much, huh?

Without going too deep into it, they didn't give a fig about originalism.
Judges have always been sociopaths -- we get that. Scalia isn't an originalist; he only pretends to be one in speeches. He is as willful as the judges he critiques.

That having been said, I have a serious philosophical problem with deviation from the path of originalism, as it applies to all judges and judging. Exactly what is the judicial power?

The Framers of our Constitution envisioned judges as interpreters of the law, as opposed to its (self-appointed) authors. By way of example, Alexander Hamilton explained that, to “avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, at 470 (A. Hamilton) (C. Rossiter ed. 1961). Blackstone observed that a judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries at 69. A century earlier, Lord Coke wrote, “[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 E. Coke, Institutes of the Laws of England 51 (1642). As in all but the most exotic cases, the law has been established, a judge is expected to be little more than a mere administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl N. Llewellyn, The Bramble Bush 49 (1960).

There are rational standards for the interpretation of a statute. First among them is the “plain meaning” rule -- the presumption that Congress meant what it said and said what it meant in the text of the statute. See, Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have stated time and again that courts must presume that a legislatures says in a statute what it means and means in a statute what it says there” -- collecting cases spanning two centuries). Justice Cardozo adds that courts may not “pause to consider” whether a better statute might have been written, but are compelled to “take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27 (1933).

But what do judges do in practice? They exercise a veto power over every shred of litigation. How can judicial legislation get more blatant than Hans v. Louisiana or Pierson v. Ray? To say that our judges exercise anything short of dictatorial power is to understate the case. And yes, that includes hypocrites like Scalia and Thomas.

Was this authorized by Article III? I don't think so. The good behavior clause was, on the face of it, placed there to rein in willful judges who exercised what Blackstone described as "tyrannical partiality." If you can be removed from a job for cause if you do X, you probably don't have the authorization to do X.
6.14.2009 11:57am
Bouldergeist (www):
Loki:
If a case involves the misapplication of the law by the DC, and it is appealed to three judges, who also (in your view) misapply the law (and assumedly, their clerks), and it is denied rehearing en banc, how many more levels of appellate review should you have? Why not have a SUPERSCOTUS to review SCOTUS decisions? And a SUPERDUPERSCOTUS to review SUPERSCOTUS decisions etc. ad infinitum? What percentage of extra cases involving misapplication of the law would be corrected, and at what cost in terms of time, finality, and money?
To me, the solution is to impose a regime of personal accountability upon judges. There is a palpable difference between mere errors and willful judicial misconduct. As Judge Alex Kozinski notes:
Judicial action taken without any arguable legal basis … is far worse than simple error or abuse of discretion; it's an abuse of judicial power that is "prejudicial to the effective and expeditious administration of the business of the courts." See 28 U.S.C. § 351 (a); Shaman, Lubet &Alfini, supra. § 2.02, at 37 ("Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights."); In re Quirk, 705 So. 2d 172, 178 (La. 1997) ("A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." (citing Jeffrey M. Shaman, Judicial Ethics. 2 Geo. J. Legal Ethics 1, 9 (1988))).
In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185 (9th Cir. 2005) (Kozinski, J., dissenting; emphasis added).

By making an officeholder subject to removal for violating it, the condition of good behavior defined the powers of a given office. Coke listed three grounds for the forfeiture of good behavior tenure: abuse of office, nonuse of office, and willful refusal to exercise an office. Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citing Coke’s Institutes). Blackstone added that "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Blackstone, Commentaries 140-41. Removing judges from the bench -- and, criminally prosecuting them -- for acts of willful misconduct would solve the pandemic of judicial free-lancing.

Mere errors can be taken care of through requiring SCOTUS to attend to the task of error-correction. If the job is too big, let's expand SCOTUS along the lines suggested by Jon Roland (28 judges; three-judge panels, with en banc review where deemed necessary).

A system should not be so out-of-control that a judge can decide a case wherein she is a defendant in tort. That is the current state of our broken system. Tell me that you don't have a problem with that. Given the garbage that our present system spews, I'd estimate that it is only slightly more effective than monkeys throwing darts at a dartboard.
6.14.2009 12:12pm
geokstr (mail):

Tony Tutins:

You will see little enthusiasm here for curbing the power of judges, or reigning [sic] in out-of-control litigation.


Tony, please explain why you found it necessary to sic this. Does calling attention to one of my very rare spelling mistakes help you feel superior, or bolster your position in any way? There are so many typos, punctuation, spelling and grammatical errors in the posts, comments, and the articles linked to, on just this site, that I could make a full time job out of siccing them.

Play fairly, harm no one, and live up to your committments (sic), and you'd be surprised how much litigation would melt away. (See how easy that "siccing" stuff is?)

I call BS on this one. Ever been here?
http://overlawyered.com/

Please explain why there are so many studies and books on the huge costs of runaway litigation on business and health care, just to name two of the most heavily infected (not a typo, Tony) aspects of American life. Or perhaps you could expound on why the US needs orders of magnitude more lawyers than the rest of the galaxy combined.
6.14.2009 12:14pm
Bouldergeist (www):
Loki:
The increased emphasis on Circuit Splits is an announced intention of CJ Roberts. I had the pleasure of hearing him speak once, and while I disagree with him on many issues, he is a charming speaker. His major point is that the Supreme Court's function is not to serve as a court of error, but rather to harmonize the law, since they are often in the worst possible position to determine errors (of fact).
How can we possibly have a "rule of law" without effective error-correction and more precisely, enforcement by SCOTUS of their "binding" dictates? While SCOTUS isn't in the position to, say, determine whether Johnny Rocco was telling the truth when he took the stand, it certainly is in a position to judge whether an inferior court followed their "binding" precedent. E.g., Roper v. Simmons (the lower court willfully ignored Stanford v. Kentucky). How complicated is it for a first-year law student to figure out that it violates the Due Process Clause for a judge to decide a case in which she is a defendant in tort, and other judges are available to hear it? Are SCOTUS clerks really that blindingly stupid?

With all respect, Loki, there is garbage coming out of our courts which judges have been executed for in the past. King Hammurabi of Babylon initiated a one-strike rule, wherein the judge who issued a corrupt ruling was fined twelve times the amount of the judgment imposed, and forever barred from trying future cases. Codex Hammurabi § 5. Herodotus informs us of an innovative antidote to judicial corruption devised by an obscure Persian vassal lord:
[The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned.
Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (1889), Vol. III at 192.

Do that to just one judge, and you don't think the rest of them would get religion, and fast?
6.14.2009 12:23pm
loki13 (mail):
B-


How complicated is it for a first-year law student to figure out that it violates the Due Process Clause for a judge to decide a case in which she is a defendant in tort [. . .]


This seems to keep popping up in your posts. Is this a personal issue for you?

(As an aside, while it will not make a difference, I will mention the following:

1. The Yale L.J. piece is interesting. It is more of a thought piece, however. It reminds me of a recent piece about why the "Title of Nobility" clause should be interpreted to prohibit, inter alia, legacy admissions at state schools because of the original intent re: Soc. of Cinncinatus. Interesting, and a snowball's chance in hell of being adopted even if it's correct.

2. You keep going to the Kozinski dissent. This dissent is from a judicial misconduct of a DC judge hearing before his peers (9th Cir.), so it's about standards of judicial ethics, which doesn't really advance your claim; we can all agree that when judges behave badly, it's a bad thing (see also J. Kent).)

Anyway, all the best. Better get some butter- you're on a roll.
6.14.2009 12:35pm
geokstr (mail):
Bouldergeist:

You raise many very valid points, not the least of which is the unaccountability of the judiciary. This unaccountability is also found in legislating and news reporting, where far-reaching and/or (usually) unintended consequences of poorly drafted laws or hastily researched stories can be devastating or financially ruinous to often innocent parties affected by them.
6.14.2009 12:35pm
frankcross (mail):
geokstr, there is very little actual evidence on the costs of "runaway litigation. lots of books and articles, but not much evidence. overlawyered is a one-sided website, the other side could just link to ATLA.

And we don't have that many more lawyers than other developed countries.

I just pulled up the average cost of liability insurance for American companies per $1000 revenue.

In the US, it is $0.38
In Canada, it is $0.27
In the UK, it is $0.34
In Germany, it is $0.80
In Spain, it is $0.41

From the Marsh Global Survey of Liability

Doesn't look like the US is particularly suffering from runaway litigation
6.14.2009 12:37pm
Bouldergeist (www):
BG: How complicated is it for a first-year law student to figure out that it violates the Due Process Clause for a judge to decide a case in which she is a defendant in tort.

Loki: This seems to keep popping up in your posts.
Can you even think of a more flagrant or more pristine example of the abuse of judicial power, Loki? In Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009), SCOTUS observed:
[T]he Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has “a direct, personal, substantial, pecuniary interest” in a case. This rule reflects the maxim that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” …

On these extreme facts the probability of actual bias rises to an unconstitutional level. …

Our decision today addresses an extraordinary situation where the Constitution requires recusal.
Caperton, slip op. at 6, 16 (citations omitted; emphasis added).

It is difficult to imagine any fact situation any more extraordinary or extreme than a judge deciding a case in which s/he is a defendant in tort, the plaintiff is asking for roughly $40 million in compensatory and punitive damages, at least sixteen ‘non-conflicted’ judges are available and authorized by law to hear the matter, and the appeal is statutorily required to be heard by another court, which are the salient (and, judicially noticeable) facts of Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), cert. denied, 547 U.S. 1067 (U.S. Apr. 17, 2006) (No. 05-1055).

Taken together, the rule of law precipitated is that if you have enough money to afford the services of former Solicitor General Theodore Olson, a state judge must recuse himself if “the probability of actual bias rises to an unconstitutional level,” Caperton, slip op. at 16 … but if you are a man of modest means who is forced to approach that Court in propria persona out of brute necessity, the Due Process Clause will not even afford you the barest protection of “the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.” Id., slip op. at 6 (citation omitted). "Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: 'I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.'" 28 U.S.C. § 453. Guess they were just kidding, eh, Loki?

Whether I have personal knowledge of the case is logically irrelevant. As the Internet Infidels explain:
A second form of argumentum ad hominem is to try and persuade someone to accept a statement you make, by referring to that person's particular circumstances. For example:
"Therefore it is perfectly acceptable to kill animals for food. I hope you won't argue otherwise, given that you're quite happy to wear leather shoes."
This is known as circumstantial argumentum ad hominem. The fallacy can also be used as an excuse to reject a particular conclusion. For example:
"Of course you'd argue that positive discrimination is a bad thing. You're white."
This particular form of Argumentum ad Hominem, when you allege that someone is rationalizing a conclusion for selfish reasons, is also known as "poisoning the well." [cite]
I'll use this (and other illustrations at KnowYourCOurts.com) until I have a more outrageous example of judicial malfeasance. If you have any suggestions on that score, I am all ears.
6.14.2009 1:11pm
Bouldergeist (www):
Loki:
This [Kozinski] dissent is from a judicial misconduct of a DC judge hearing before his peers (9th Cir.), so it's about standards of judicial ethics, which doesn't really advance your claim; we can all agree that when judges behave badly, it's a bad thing (see also J. Kent).
The point that I am making here is that there is no effective mechanism to even deter judicial misconduct, to say nothing of actually punishing judges for willful violations of the law. This is the first problem we must address if we are to secure our rights under law.

Loki, how can you even have a legal system without effective judicial discipline?
6.14.2009 1:22pm
Bouldergeist (www):
Loki: "Interesting, and a snowball's chance in hell of being adopted even if it's correct."

What would you suggest as an alternative? The Bart Ross Solution?! Judges must be held personally accountable for their acts of willful misconduct, or there is no law. The remedy of scire facias is implied by the very existence of the Good Behavior Clause, and when wielded by an aggrieved individual citizen, separation-of-powers issues are neatly avoided. The only way that it would be resisted is the same way Ali Khamenei is resisting the will of the people: Judges, sodomizing the law to enhance their power.

Of course, we all know that that is the short definition of a judge, which explains the kerfluffle over Sotomayor.
6.14.2009 1:28pm
Bouldergeist (www):
geokster: "This unaccountability is also found in legislating and news reporting."

That's something we can do something about. It's not like we can't create our own websites; ours is visited with some frequency by traditional journalists, and we are always happy to cooperate with them.

Judges are another animal. They don't even think that they are included in the description "any person," because "person" does not include demigods.
6.14.2009 1:31pm
loki13 (mail):
Bouldergeist,

No. I wasn't making any argument whatsoever. I just noticed that you had a habit of referring to this one obscure example in the middle of your posts. Whether it is a 'tic' or a 'tell' (in [a banned word] parlance) or just an odd example you like to use only you know. Anyway, you're definitely a (wo)man on a mission, and best of luck to you with whatever that might be. Personally, I've found that overall, our judiciary does an outstanding job. There are outliers (bad judges), and there are problems that are primarily resource-driven, but they do a damn fine job at both the state and federal level in the vast majority of cases. They are, of course, a human institution and subject to the same fallibilities as the rest of us, but I don't see any great solutions in what you've offered.* But I hope you achieve whatever justice it is that you seek.

*Please note that in the Yale L.J., they give short shrift to the actual implementation of their idea. Just stop and think about the private COA and standing issues involved. How many bites at the apple should losing litigants have? Would there be an action for money damages (judicial malpractice) in addition to losing their tenure? Since people such as yourself don't trust the judiciary anyway, and don't trust the other members of the judiciary to enforce the ethical rules, why would you trust a judge to judge the conduct of their fellow judge in a COA that would remove them?

That is all. Since you have been reasonably courteous, if I see you post on a different topic, I would be happy to engage with you again. But, just as when I see J. Aldridge pull out Bingham, I don't see this discussion bearing any more fruit.
6.14.2009 1:58pm
Bouldergeist (www):
Loki:
Since people such as yourself don't trust the judiciary anyway, and don't trust the other members of the judiciary to enforce the ethical rules, why would you trust a judge to judge the conduct of their fellow judge in a COA that would remove them?
I would trust a judge who knew that she was accountable, and knew that she was likely to go to prison if she put her fingers on the scales of justice to benefit a friend or colleague. What I would not trust is a self-appointed king who can do whatever he wants without consequence.

I'll leave our conversation at that, and appreciate that we had the chance to have it.
6.14.2009 2:17pm
albert:
Rosen does not mention that, by affirming the district judge's decision, Sotomayor failed to support her brother Latino, plaintiff Benjamin Vargas. Surely this indicates Sotomayor is colorblind.

the usual function of "surely" is to mask an important and highly debatable assumption, and so it is with your post. By ruling against the plaintiffs, mostly white and including only ONE hispanic, she ruled broadly in favor of affirmative action, to the benefit of hundreds of thousands of hispanics.

Are you really so dense that you could not see this?
6.14.2009 2:34pm
Tony Tutins (mail):

Tony, please explain why you found it necessary to sic this.

To point out an ambiguity. "Reining in" is a familiar idiom; "reigning in cases" is not. Did you want the judges to act more regally, or to pull up the runaway cases? King ruling over cases, or jockey riding cases?

In contrast, I could put three t's in commmitttmenntt without creating an ambiguity.

By ruling against the plaintiffs, mostly white and including only ONE hispanic, she ruled broadly in favor of affirmative action, to the benefit of hundreds of thousands of hispanics.

As you may have forgotten, the panel originally wanted merely to affirm the district judge's decision, without creating any precedent. So, by ruling against the plaintiffs, she ruled narrowly in favor of affirmative action, to the detriment of two Hispanic individuals.

geokstr should be happy that one of the Hispanic firefighters who scored high enough to be promoted had the NHFD exam not been thrown out, chose not to sue.

Which raises the question: why are whites so litigious?
6.14.2009 4:27pm
Random Visitor:
Why is Jeff Rosen citing the discredited race-monger William Bowen for his assessment of the judge?

William Bowen, along with Julius Chambers, treated the Duke University lacrosse players as presumptively guilty (when they were clearly innocent, as prosecutors later admitted, and as DNA evidence later showed) and faulted Duke for not considering the race of the accused and accuser in handling sexual-assault cases.

It is frankly disturbing that William Bowen was ever entrusted with an academic post, at Princeton or elsewhere. He did not deserve it, nor did Princeton University.
6.14.2009 7:53pm
loki13 (mail):

Which raises the question: why are whites so litigious?


Because of the large number of fast-twitch "umbrage" circuits in their brain.

I read this in "The Bell Curve". Also, the movies in my sleep told me about it. Must be true.
6.14.2009 8:58pm
Ken Arromdee:
A second form of argumentum ad hominem is to try and persuade someone to accept a statement you make, by referring to that person's particular circumstances. For example:

"Therefore it is perfectly acceptable to kill animals for food. I hope you won't argue otherwise, given that you're quite happy to wear leather shoes."


When someone holds two seemingly inconsistent positions, it is indeed fallacious to point to a particular one and say that they should not believe that one (on account of them believing the other one). But it is not fallacious to say "your positions seem to be logically inconsistent. Pick one or explain away the inconsistency", as long as you don't claim that a particular one is the one that must be right.

You're also ignoring the fact that people aren't perfect logicians and usually shouldn't assume that anything that they can't find a flaw in actually has no flaw. It's entirely appropriate to use ad hominem to decide that the likelihood of there being an unnoticed flaw is excessive.
6.14.2009 10:33pm
Bouldergeist (www):
Ken A:
You're also ignoring the fact that people aren't perfect logicians and usually shouldn't assume that anything that they can't find a flaw in actually has no flaw. It's entirely appropriate to use ad hominem to decide that the likelihood of there being an unnoticed flaw is excessive.
And precisely what "seemingly inconsistent positions" do I hold? I simply maintain that judges should be personally accountable for their wrongful actions on the bench or in the alternative, that the government should be liable for the injuries they cause. This principle has reached the status of jus cogens law. See, International Covenant on Civil and Political Rights, art. 2, sec. 3 (standard of responsibility assumed in 120 countries). All civilized nations have warranted that they will adhere to this reasonable standard, including even Iran:
Whenever an individual suffers moral or material loss as the result of a default or error of the judge with respect to the subject matter of a case or the verdict delivered, or the application of a rule in a particular case, the defaulting judge must stand surety for the reparation of that loss in accordance with the Islamic criteria, if it be a case of default. Otherwise, losses will be compensated for by the State. In all such cases, the repute and good standing of the accused will be restored.
Iran Const. of 1979, art. 117 (as reprinted and translated here).

Precisely why should Americans have less protection from the depredations of their government than the average Makmoud in Tehran?
6.15.2009 5:46am
mattski:
Bouldergeist,

Sorry for hitting and running yesterday morning. I had exigent circumstances. I don't have much time today either, but here's a few remarks. First, I'm not a lawyer, but I'm pretty much in loki's camp on this thread. Your positions strike me as lacking realism and lacking balance. You don't seem to appreciate that the Founders put A LOT of thought into designing our system of gov't. They put a lot of thought into how legislatures should be formed and how judges should be appointed. For every reason you can cite against un-elected judges, there are very good reasons for.

If our judges cannot be tethered to the rule of law, there is no rule of law.

This is intemperate and amateurish. A judges job is to interpret the law. You should start by acknowledging that this is an essential function and someone needs to do it. Next, allow that it is inevitable that there will be differences of opinion--legitimate ones--on how best to interpret the law. Also, even when there are gross miscarriages of justice (Bush v Gore comes to mind) we kind of need to swallow them if we want to preserve our system of gov't.

Bush v Gore, imo, was a right-wing coup as well as a gross judicial error. But if I think that on balance our system of gov't is worth preserving, and I do, then I'm not going to take up arms as a result of that decision. Sure, it's possible that there is some decision so egregious that I'd reconsider. That all depends on future events.

Judges have always been sociopaths -- we get that.

Again, you're begging not to be taken seriously.

I simply maintain that judges should be personally accountable for their wrongful actions on the bench or in the alternative, that the government should be liable for the injuries they cause.

"Wrongful" in whose opinion? And who will determine whether and by how much the government shall be liable? May I tell you? It will be, and should be, a judge.

I strongly recommend you start over. Try recognizing that there is no such thing as a perfect form of gov't or a perfect criminal-justice system. Human institutions are subject to human errors and limitations. If you can design a better system please show us the plan.
6.15.2009 6:40am
Bouldergeist (www):
mattski: "If you can design a better system please show us the plan."

The "better system" is the one that the Framers designed, as opposed to the one the courts have forcibly imposed upon us. Every case involving a federal question could be appealed to the Supreme Court on a writ of error, and the Court's opinion in deciding that case became the law of the land. This acted as a natural brake against abuse of power at the lower level, inasmuch as lower court judges could expect plainly irregular decisions to be overturned.

Back in the day, federal appellate courts actually reviewed cases brought to them on appeal. You had oral argument in front of a panel of judges who read the briefs beforehand. In the earliest days of the Republic, every judge wrote his own opinion, which constituted a warranty that "he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor." Thomas Jefferson, Letter (to William Johnson), 1823.

As I have observed, the common law had effective mechanisms for disciplining the wayward judge, including the right of the aggrieved individual to remove the offending judge from the bench and criminally prosecuted for cause. If a judge knows that an egregiously corrupt decision could earn him a gig on a prison bench, s/he would be less likely to indulge that temptation. If you doubt me, recall how you drive when a state trooper is in your rear-view mirror, and explain the differences. The judge is entitled to due process of law, and all but the most absurd decisions would result in an acquittal.

Jail 4 Judges proposed creation of a civilian grand jury to hear cases like these, which makes an awful lot of sense. The problem with their scheme is that they cast the net far too wide -- entrapping the little old lady from Pierre who wasn't creative enough to evade jury duty, and didn't know what she was doing.
6.15.2009 9:28am
Bouldergeist (www):
mattski:
"Wrongful" in whose opinion? And who will determine whether and by how much the government shall be liable? May I tell you? It will be, and should be, a judge.
Not necessarily, as Jail 4 Judges has proposed an alternative. Besides, as a jury is supposed to be the trier of fact and the question of whether a judge had violated his duty is a question of fact, the problem of judges showering favors on their colleagues is not as severe as you might think.
BG: If our judges cannot be tethered to the rule of law, there is no rule of law.

Matt: This is intemperate and amateurish. A judges job is to interpret the law. You should start by acknowledging that this is an essential function and someone needs to do it. Next, allow that it is inevitable that there will be differences of opinion--legitimate ones--on how best to interpret the law. Also, even when there are gross miscarriages of justice (Bush v Gore comes to mind) we kind of need to swallow them if we want to preserve our system of gov't.
I'm working under the assumption that the audience here is inordinately knowledgeable and therefore, that what you say is common currency, and that they understand the difference between a valid difference of opinion and egregious judicial misconduct. I maintain that the difference is often patently obvious, as in the case I cite where a judge decided a case wherein she was a defendant in tort. I can be more specific, but the remedy I advocate takes that distinction into account implicitly. To remove a judge under a writ of scire facias at common law, you must demonstrate culpable intent.
6.15.2009 9:37am
mattski:

I'm working under the assumption that the audience here is inordinately knowledgeable and therefore, that what you say is common currency, and that they understand the difference between a valid difference of opinion and egregious judicial misconduct. I maintain that the difference is often patently obvious,

Patently obvious to whom? You are not grappling with the real issue, which is that someone must be empowered by the law to stop debate and make a binding decision. That person is a judge. We do have some recourse to impeach members of the judiciary for gross misconduct and that is as it should be.
6.16.2009 8:21am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.