Saturday, May 15, 2010

I am now blogging exclusively for the Huffington Post

I no longer post at this site. I write exclusively for the Huffington Post. Please search me there and become a fan. Thanks

Tuesday, December 29, 2009

Wednesday, May 27, 2009

PERSONS WITH EMPATHY NEED NOT APPLY

Several weeks ago, I woke to the television news that Judge Sonia Sotomayor's was nominated to the Supreme Court and was being opposed by Tom Fitton, president of Judicial Watch. When asked why, he responded: "Because President Obama picked her". I was somewhat taken with the honesty of that reply since it spoke the truth, namely that the organization would oppose anyone the President named. But he went on to explain that opposition by condemning the President's avowed desire to pick someone with "empathy" for those that society has chosen to ignore or discriminate against. Somehow Mr. Fitton and others seem to find this characteristic as a disqualifier; that being emphatic to the downtrodden is inconsistent with the rule of law; that one who has empathy should not be seated on The Supreme Court of The United States. We should have only those persons serving who have no empathy----no one like Jesus Christ, Mother Teresa, Bishop Tutu, etc. need apply. They would not make the cut.

But then ironically, a conservative spokesperson condemned the judge for her decision in the New Haven case, pointing out how white firefighters who risked their lives in the 9/11 attack were denied promotions and increased income they earned and deserved because of her ruling. Or to put it bluntly, in following what she perceived to be the correct application of the law she neglected to feel "empathy" for those who were adversely affected by her ruling.

Because of the limited size of the Supreme Court, it cannot possibly be representative of every race, religion or ethnic group in America; nor was it meant to be. But diversity brings understanding to the Court. There can be no doubt that a judge who has experienced discrimination, sexual harassment or other life-forming experiences draws upon them in considering and deciding cases. Empathy because of those experiences is a characteristic to be embraced, not condemned. Experience informs but does not dictate the outcome.

Friday, May 15, 2009

THE TRUTH COMMISSSION DILEMMA

In most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well. For instance, 1) it denies that it tortured; 2) if it did torture, the torture was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for the further release of photos, documents and an independent "truth commission". It certainly detracts from the more important crises facing the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no inconsistency in claiming that the Bush administration did nothing wrong in their treatment of detainees, BUT Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!

As a result, the current administration and the country face a dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitments. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest it is the Pentagon Papers redux----that unless some real and imminent threat can be established the First Amendment trumps hypothetical harm---no matter how likely it is to occur. Despite the denials by the Bush administration, by now the country knows that acts of torture were committed against detainees. If the purpose of a commission is to determine the extent of the torture and who authorized or directed it, I think that merely serves to lay political blame and would not be warranted with so many other issues facing the country.

On the other hand, if such a commission, independent counsel or grand jury is created with the expectation and purpose that it might recommend criminal prosecution or other sanctions, to me that would be a worthwhile purpose. I understand the President's concerns about looking back rather than going forward and that such an investigation and possible indictments might appear to be viewed as politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify failing to use it for the same reasons, although conceding the current motives are laudable while the past were not. Admittedly, indicting and trying high level officials of the opposition party, particularly for such high crimes, is a wrenching prospect and establishes a dangerous precedent. The questions are:

What will it do to us as a nation if we pursue it? What will it say about us, if we do not?

Wednesday, April 29, 2009

THE VICTORIAN ERA LIVES

A few decades from now law students will learn (and probably laugh) that the United States Supreme Court (F.C.C. v. Fox Entertainment) again upheld the federal government's right to prohibit the speaking of certain "dirty" words on television and substantially fine those who uttered or permitted such words to be uttered. The compelling First Amendment arguments have been made and rejected. The statute and the regulations which have followed it, insofar as they prohibit "indecent language", should have been invalidated on constitutional grounds, but having failed that let's just recognize the fact that they (the statute and regulations) are silly and hypocritical-----admittedly "silly and hypocritical" are hardly profound legal arguments.

The underlying presumption of the legislation is to shield children from such language. The fact is that unless children are confined to the house and prohibited from reading books or magazines, they will be exposed to these words elsewhere and often. The networks do not provide a "safe haven". Please understand. I am not an expletive advocate. I do not swear except for an occasional excited excrement utterance on the golf course; I never swore in front of my children and did not and do not want them to swear. But what I find silly and hypocritical is the fact that every day and all day on television at least one hundred persons are murdered, shot, stabbed, robbed, beaten, strangled or mutilated, and all of these acts are depicted in visual form. But what is it that we seek to protect our children from: WORDS of a sexual or excretory origin. The Justices of the Supreme Court cannot bring themselves to actually use the words in their opinions! Why, because of all of those 5 year olds out there waiting and rushing to read those slip opinions from the Court the moment they roll off the presses?

Assuming any harm can be caused by watching television (a concept much disputed), how can the fear that children hearing "curse" words may repeat them be greater than the worry that they might copy the violence on television? Although I believe that neither should be prohibited, given the choice, if children are going to emulate television, I would prefer they say "shit", rather than kill somebody.

Wednesday, April 22, 2009

THE NEW RULE OF LAW: SEE, IT WORKS

Former officials of the Bush Administration and its defenders respond to criticism of its torture policies (or as they are wont to call them "enhanced interrogation") by invariably claiming as justification that no attacks have occurred since 9/11. That contention reminds me of the old joke about the New York woman who sends her husband to the psychiatrist because he is always snapping his fingers. When the psychiatrist asks him why he constantly snaps his fingers, he says: "To keep the elephants away." The psychiatrist responds by saying that there are no elephants in New York. Whereupon the patient responds: "See it is working!" The Bush Administration tortured; there were no further attacks; ergo, according to them, torture works!

Although the general consensus among the experts is that torture does not provide reliable information, former Vice President Dick Cheney makes veiled suggestions that if only President Obama would declassify certain documents the practical value of torture would immediately become evident. And I ask this question in response: Since when do we judge violations of the law or the Constitution based upon whether or not those violations produce some benefit? I can think of any number of constitutional violations that would or could produce benefits-----the illegal search of thousands of homes and the seizure of illegal guns could save thousands of lives; sentencing persons to prison without the benefits of trial or appeal would save hundreds of millions of dollars; coercing confessions would save investigative time and expense, etc.---you get the picture. "See, it works" (even if true) is not the underpinning of the Rule of Law.

Torture is illegal and immoral, and no risk/benefit analysis can make it either legal or moral.

Wednesday, February 4, 2009

ESCAPE FROM GUANTANAMO

Those who oppose the closing of Guantanamo Prison seem to suggest that the prisoners will be flown to Kennedy Airport, released from custody with a new suit and $100 to buy explosives to blow up the first Starbucks they can find. It is reminiscent of Justice Scalia's bizarre reasoning in the Boumedienne case, that if the detainees are granted hearings, they will be freed to return to the battlefield and kills more Americans; ergo they should not receive hearings, completely ignoring the fact that many of the detainees were and may be innocent. The closing of Guantanamo is a necessary move on the part of the Obama administration, because it has become the symbol of U.S. abuses and the vehicle for recruiting an ever-increasing army of terrorists.

Closing it will not result in the arbitrary release of terrorists. It will necessitate a complete review of the detainees and the basis for their detention. Those for whom there is no legitimate basis to retain them will be released, even though to where remains a constant problem. Those for whom there is evidence of terrorist activity will be incarcerated elsewhere., and eventually subject to a hearing in accordance with the law, either military tribunals or civil courts. Some of the concerns about the ability to convict the real terrorists have been self-inflicted by the Bush administration. The mistreatment of prisoners may impede the prosecutions and, indeed, may even result in some acquittals. But here again we follow the Scalia logic at our peril: Terrorists who have been tortured may be acquitted as a result of the abuses and return to the battlefield; therefore they should not receive hearings in order to avoid that possibility. We cannot deny hearings to persons merely because we have violated their rights in the process.

As to the fear of the disclosure of state secrets, I know as a former federal judge, that judges are perfectly capable of balancing the security of the country with the rights of the accused, through redactions, in camera proceedings, etc. Although the Bush administration professed that it was concerned that trial disclosures could injure national security, I suspect it was more interested in concealing its abuses rather than protecting national security.

Finally, fear about location of the detainees is unfounded. We have been able to imprison serial killers, murderers and other violent criminals for their respective lifetimes. There is no reason to believe that we are incapable of doing the same for terrorists. There is a valid concern that imprisonment on U.S. soil might enhance opportunities for terrorist activities by those who are truly terrorists, but as with other highly dangerous criminals, restrictions can be imposed to prevent such activities.

The problems as to what should be done with the detainees remains the same no matter where they are detained. Moving them to a new location neither exacerbates nor diminishes those issues. But closing Guantanamo sends an important message to the world that the new administration sees and hears what has occurred at Guantanamo and rejects and condemns it. That message outweighs any practical problems which might arise from the closing. If ever there was a time for principle to trump the pragmatic, this is it.

Saturday, January 3, 2009

LET BURRIS BELONG

Mr. Blagojevich may be stupid, crazy, a scoundrel or even a criminal. but at this moment he is still a governor. He has not been indicted or impeached. Efforts to declare him incompetent to serve have been summarily dismissed. It is inconceivable to me that the mere existence of accusations against him can deprive him of his power of appointment to fill the vacant Senate seat, a power that he clearly has absent the controversy swirling about him. True, the Senate itself has something to say about who may join its august body, but that power relates to the integrity and qualifications of the elected or appointed senator, not to the person making the appointment.

I would assume that both Presidents Nixon and Clinton continued to exercise their executive powers despite the accusations against them, and as to President Clinton, even during his impeachment hearings. Absent some evidence that Mr. Burris was party to the alleged scheme by the Governor to sell the appointment or is otherwise unqualified, it is difficult to accept the adamant position of the Senate to reject him.

That effort so clearly undermines the presumption of innocence that it barely requires mention. But it takes it one step further, by premising it on guilt by association where the original guilt is yet to be established. If the charges against the Governor are true, I can certainly understand the desire not to recognize the appointment to such a distinguished and important position by someone who tried to sell it, but what we may want and what the law allows are not always the same.

If and when Mr. Blagojevitch is formally indicted or impeached, he will undoubtedly point to this appointment as evidence that he did not sell the office. Despite his obvious attempt even at this date to benefit himself, upholding the law is more important than thwarting his guile.

Saturday, December 27, 2008

CRUEL AND UNUSUAL PUNISHMENT - INVALIDATING GAY MARRAIGES

The New York Times published the following letter from me on Dec. 26, 2008:

While the California Supreme Court is considering whether Proposition 8 violates the state constitution, it might also consider whether the effort to invalidate 18,000 gay marriages violates the Eighth Amendment of the U.S. Constitution as well. The Eighth Amendment prohibits "cruel and unusual punishment". If it serves to protect convicted criminals, it certainly should extend to persons who are guilty of nothing other than engaging in a marriage ceremony at a time when it was legal to do so. Could there be anything crueler to those couples than to now invalidate their marriages? I have read all of the moral and biblical justifications for Proposition 8, as well as the arguments for and against sustaining it, but I find it incredible that the "victors" should want to inflict such further hurt on a group which has injured no one by their marriages. The Constitution prohibits invidiously discriminatory punishment. The invalidation of these marriages solely based upon the fact that the participants are gay clearly would be an act of invidious discrimination.


Thursday, October 30, 2008

SOWELL v SAROKIN, AS POSTER BOY

The National Review has published a syndicated article by Thomas Sowell which adds a new fear to the Republican list which grows daily if Barack Obama is elected, but this one is personal. He predicts that Barack Obama is likely to select a Supreme Court Justice just like me. Run for the hills! Out of my 2200 written opinions, he selects as evidence a decision that I rendered in the infamous Morristown library case. No matter how many times the conservatives claim that I ruled that a smelly, homeless man could annoy and drive patrons out of the library and harass women, it won't be true.

I declared a library regulation invalid on the grounds that it was too vague and broad in giving librarians the unfettered discretion to oust or forever bar a patron. The Court of Appeals disagreed, but I never made any ruling about the individual or his conduct. It was a decision based strictly on the law and not the facts. I never awarded him any damages, and I certainly said nothing in my ruling which "threatened the town with heavy damage awards" as Dr. Sowell claims . Why the case was settled for such a huge amount is a question that should be addressed to the city (or the insurance carriers) who paid it. I cannot conceive of a jury award in such an amount, even if the matter had gone to trial as a result of my decision. The idea that my decision declaring a library regulation invalid could have bankrupted the city is absurd. But I suppose that Dr. Sowell likewise believes that I should have continued the wrongful incarceration of Rubin "Hurricane" Carter, since by protecting his constitutional rights, I may have exposed the county that prosecuted him to a suit for damages and possible bankruptcy. In essence, Dr. Sowell apparently suggests that rulings on constitutional questions should somehow take into consideration the financial consequences that may befall the losing party. Now that's a criterion worthy of conservative support.

Finally, Dr. Sowell adds to the fear factor by trotting out the old "soft-on-crime" saw. He claims that Obama judges will "be siding with criminals and terrorists during the lifetime of your children and grandchildren". By siding with criminals and terrorists, I assume he means enforcing the rights and liberties guaranteed by the Constitution----what a bummer. We don't want any of those kind of people sitting on our courts.

As for my being the poster boy for Obama appointments to the Supreme Court, I have dedicated my entire professional life to the rule of law, in my view, not a bad criterion for a supreme court justice; nor do I think that "empathy" for the "poor, the African-American, the gay, the disabled or the old" is a disqualifier as Dr. Sowell contends; rather it should be a requirement.

P.S. Even after the reversal by the Court of Appeals, the American Library Association invited me to speak at their annual convention to discuss the case and offer guidance to avoid similar occurrences in the future.