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I am now blogging exclusively for the Huffington Post

2010-05-15T10:00:00.000-07:00

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

I AM NOW BLOOGING ON THE HUFFINGTON POST

2009-12-29T15:13:00.000-08:00

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PERSONS WITH EMPATHY NEED NOT APPLY

2009-05-27T14:43:00.000-07:00

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.

THE TRUTH COMMISSSION DILEMMA

2009-05-15T16:54:00.000-07:00

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?

THE VICTORIAN ERA LIVES

2009-04-29T11:01:00.000-07:00

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.

THE NEW RULE OF LAW: SEE, IT WORKS

2009-04-22T16:37:00.000-07:00

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.

ESCAPE FROM GUANTANAMO

2009-02-04T09:12:00.000-08:00

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.

LET BURRIS BELONG

2009-01-03T11:47:00.000-08:00

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.

CRUEL AND UNUSUAL PUNISHMENT - INVALIDATING GAY MARRAIGES

2008-12-27T12:49:00.000-08:00

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.

SOWELL v SAROKIN, AS POSTER BOY

2008-10-30T15:58:00.000-07:00

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.

JUSTICE SCALIA AND THE PRESUMPTION OF GUILT

2008-07-01T14:24:00.000-07:00

In his dissent in the Boumedienne case Justice Scalia argues against the granting of habeas corpus relief on the grounds that 30 of those who have been voluntarily released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.

The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting habeas relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.

The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labelled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill.

UNELECTED, POLITICALLY UNACCOUNTABLE JUDGES

2008-06-25T10:31:00.001-07:00

The Supreme Court's recent decision regarding the right to habeas corpus by those designated "enemy combatants" has been the subject of heated and extensive debate. I have no intention of discussing the merits, but rather wish to focus on the disappointing use of the phrase "unelected, politically unaccountable judges" by the Chief Justice in his dissent criticizing the majority opinion. That language comes right out of the conservative-Republican playbook. It is code for "liberal activist" judges.

Every decision by a federal court is rendered by "unelected, politically unaccountable judges", a principle embedded and cherished in the Constitution. There are many meritorious arguments against the extension of habeas writs to enemy combatants, but why demean the Court in the process with the use of this old saw, particularly by the Chief Justice himself. It is vital that the public respects the decisions of the Court even it it disagrees with them. The Chief Justice should engender that respect, not demean it.

RUSH TO (BAD) JUDGMENT

2008-05-08T15:02:00.000-07:00

Rush Limbaugh has created Operation Chaos and is gleefully pronouncing its success. Its avowed purpose is to create disruption in the Democratic primaries by urging Republicans to cross-over and vote for Hillary Clinton, and thus extend the length and cost of the contest and erode Barack Obama's candidacy. The media and the pundits have focused on whether or not the tactic has been successful as its creator proclaims, but strangely, no one seems to be offended by this obvious attempt to subvert not only the Democratic elections but the democratic process as well.

What he has proposed is probably not illegal and undoubtedly constitutes protected speech, but isn't there something inherently wrong with using the airwaves to encourage millions of potential voters to engage in "dirty tricks", because that is all this really is. Republican voters are being asked to cast votes, not for the person of their choice, but merely to subvert the nominating process for the opposing party. Discussions of whether or not he has been successful are besides the point. For someone who purports to represent the conservative viewpoint and principles in this country, apparently respect for the democratic process is not on the list.

PRE-EMPTION EQUALS IMMUNITY

2008-04-13T11:15:00.000-07:00

In its simplest terms, pre-emption means that where the federal government has acted, the states may not. The concept has a very practical basis. For instance, we could not have 50 states imposing varying regulations upon airlines. Where the federal government has declared a product safe or its warnings adequate, the states may not act to the contrary. If Congress intends to pre-empt the area, the states may not enter it. Contrary or varying state legislation is thus prohibited.

The more problematic question arises in respect to jury trials which involve the common law of a state rather than its legislation. A number of current cases are being defended on the basis that FDA approval is an absolute defense, and that permitting juries to find approved products unsafe or approved warnings inadequate violates the principle of pre-emption---the theory being that a jury verdict is a form of state law that runs counter to federal law.

The subject has more than a passing interest to me, because I was confronted with the identical issue in the Cippolone case. The tobacco companies argued that the warning labels, mandated by Congress, prohibited a plaintiff from asserting that the warnings were inadequate; that permitting a jury to conclude that different warnings were required, in effect, would be tantamount to state action requiring a revision in the warnings in order to avoid future liability.

I struggled with the issue, but ultimately concluded that plaintiff's claims would not be pre-empted, if it was demonstrated that the defendant tobacco companies knew that the warnings were inadequate---that they knew that cigarette smoking was far more dangerous than it "may be hazardous to your health." I was also influenced by proffered evidence that the companies were engaged in a concerted campaign to neutralize the warnings through their advertising and public relations. I viewed government standards as a minimum requirement. If a builder knows that a construction standard is unsafe, he should not escape liability by asserting he followed the building code. If the FDA approves a product, the manufacturer, nonetheless, should be liable for injuries sustained, if it knows that the product is unsafe or the approved warnings inadequate.

Both the United States Court of Appeals for the Third Circuit and the Supreme Court reviewed my opinion. I will not attempt to summarize what they concluded. Justice Scalia indicated that it gave the courts complicated guidance for future cases, so I will let wiser minds unravel it. When Congress immunized gun manufacturers from liability, I then asked why it would single out an industry to protect that made a product that killed people rather than the drug industry which makes products to save lives. The latter would certainly make more sense. But now that it is on the table, I am not now certain that even the most beneficial industries should receive immunity under the pre-emption doctrine.

Considering that government agencies may be overworked, uninformed or even negligent, their approval should create a presumption of safety, but someone injured by the product should be permitted to rebut that presumption by establishing that the manufacturer knew the product was unsafe or its warnings inadequate. Government approval should be a factor, but not necessarily the dispositive one. A person injured by a dangerous, defective or unsafe product should not be barred from recovery merely because the product has received the government's stamp of approval. The manufacturer may have sought that approval, but it is the consumer who has relied upon it. The quest for uniformity should not supersede an individual's right to be compensated.

END PROSECUTOR PRESS CONFERENCES

2008-03-25T18:59:00.000-07:00

It can come as no great surprise that persons engaged in adulterous relationships, deny their existence. If those denials are made under oath, they constitute perjury. Whether or not such perjury warrants prosecution is a matter of discretion for prosecutors. However, once that discretion is exercised in favor of filing charges, prosecutors, in announcing the indictment, should not render their closing argument in a press conference.

Wayne County Prosecutor in announcing the indictment against Detroit Mayor Kwame Kilpatrick said: "Our investigation has clearly shown that public dollars were used, people's lives were ruined, the justice system severely mocked and the public trust trampled on." My reaction: Save it for the courtroom!

In Denver last year, City Attorney Larry Manzanares committed suicide after being charged with stealing a state-owned computer, which the district attorney announced at a press conference contained pornographic material.

Unless prosecutors wish to ally fears by announcing the arrest of persons such as serial murderers or rapists, no legitimate purpose is served by press conferences outlining the evidence against the accused. In the Denver case, the district attorney defended himself by saying that he had treated Mr. Manzanares the same as everyone else. Therein lies the problem.

The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media.

MANDATORY RECUSAL FOR JUDGES

2008-02-09T10:03:00.000-08:00

Adam Liptak, once again, has pointed up one of the failings of our judicial system (N.Y. Times 1/29/08)----namely that judges preside over cases in which lawyers and litigants contributed to the judges' election campaigns. The article cites a study by Professor Vernon Valentine Palmer which indicates that those who contributed had a higher success rate from those judges to whom they had made contributions. Whatever the significance of the study, no evidence of favoritism should be necessary. As Mr. Liptak and Prof. Palmer both suggest, a judge should recuse himself from presiding over any case in which a lawyer or litigant has made a substantial contribution to the judge's election. (Of course, "substantial" needs defining.) The appearance of impropriety is there absent any proof of favoritism; the existence of such proof makes the suggestion even that more compelling.

Although Mr. Liptak indicates that "you do not have to do away with elections", it is certainly a goal worth exploring. The average voter does not have the slightest idea whether or not the person running will make a good judge or even what constitutes the necessary qualities or qualifications. Judges running for re-election are frequently judged on the popularity of their decisions or the lack thereof----hardly a criterion for continued service. The most unpopular judge can be the best. Added to all this is some of the unseemly campaigns and the issue raised by the article about the influence of contributions.

Can you imagine a lawyer or a litigant in the middle of a trial walking up to the bench and handing the presiding judge a check! It is difficult to distinguish that scenario from a contribution made at an earlier date. So long as judicial elections exist, the integrity of the system requires that Prof. Palmer's admonition be followed: Judges should recuse themselves in cases in which either a lawyer or litigant has made more than a nominal contribution to their election.

WILL THE DEMOCRATS FIND A WAY TO LOSE?

2008-01-05T08:59:00.000-08:00

The Democrats, after receiving a clear mandate from the people, (among their priorities) chose to alienate two of our few remaining and most important allies, by condemning the Turks for their treatment of the Armenians about 100 years ago and the Japanese for their treatment of women about 50 years ago. Although the condemnations may be fully justified, the timing is mystifying. Now, following some of the most inspiring moments in our political history arising from the Iowa caucuses, Congress has decided to take up the burning issue of whether Roger Clemens or Brian McNamee is telling the truth about Clemens' steroid use.

While the candidates seeking the country's highest office are debating terrorism, health care, poverty, the environment and education, those in office are seeking to determine whether or not a baseball pitcher's earned run average should receive an asterisk! And while on the subject, although I have the greatest respect for Sen. Mitchell, should there not be greater outrage that one person has investigated, convicted, punished and destroyed the reputations of an entire group of persons without charges, a hearing or a trial? The only thing missing seems to be waterboarding.

But, in any event, certainly his report has furnished all of the information that anyone, including Congress, could possibly need or want on the subject. I suspect that if the scheduled baseball hearings were sans video, a number of committee members might find the need to attend to more pressing matters.

THE GOTCHA GENERATION

2007-09-08T09:13:00.000-07:00

I confess that I have never seen the TV program To Catch a Predator, but I have seen the
promotions for it. I cannot understand why anyone would want to see these pathetic people humiliated and embarrassed week after week. I suppose the show can be justified on the basis that it provides a warning and serves some deterrent purpose, but it is just as likely to make the predators more cautious, assuming any of them actually watch the program. Finding them and arresting them serves the public good, but televising the moment mystifies me. Joy in the humiliation of others seems like a fairly lame format to justify a TV show (although I suppose American Idol does it for a while).

Which brings me to the case of Senator Larry Craig. First let me concede the irrefutable: yes, he pleaded guilty to a crime, albeit disorderly conduct. Yes, he is a hypocrite, as are all of his friends and colleagues who failed to come to his aid. It is quite ironic that it may be his repressive, anti-gay policies and those of his colleagues which may have created the need to seek gay sex in public bathrooms rather than out in the open. Yes, the police officer was doing his job, and it was not entrapment. Yes, prominent persons should not receive preferential treatment. But, should tapping one's foot and waving one's hand in an effort to solicit consenting sex warrant the death penalty?

There is very little about the Senator's voting record with which I agree. His hypocrisy offends me much more than his conduct. But I am certain that elected officials have been caught for other disorderly conduct offenses and sent home with a warning by the police officer. The solicitation of sex with a prostitute does not seem to bring ethics charges or demands for resignation from public office. His conduct certainly had nothing to do with the performance of his official duties. Let's face it: it's the "gay thing".

Would not a stern warning have sufficed rather than the destruction of an entire lifetime of public service, humiliation for him and his family and his inevitable resignation? Yes, the Senator was stupid and he brought this upon himself, but should we not have some sympathy and compassion for a person in such a high position who feels compelled to seek sex in an airport's men's room? Does the punishment fit the crime; or is this just another TV show celebrating humiliation. Gotcha!

CUT AND RUN OR STAY AND DIE?

2007-08-24T10:22:00.000-07:00

Neither is a fair characterization of the alternatives. But the Bush administration mocks the Democrats for either their failure to have any plan regarding Iraq or their proposals for troop withdrawals. The administration (always better at devising advertising slogans rather than actually governing) characterizes the Democratic plan as "Cut and Run", and now points to the consequences of leaving Vietnam, citing the killings that followed our withdrawal.

No one can quarrel with the noble goal that we should attempt to combat the senseless killings of mass numbers of civilians wherever it should occur. But in deciding when and where to intervene, as part of the equation we must calculate how much we are willing to sacrifice. What would have been the cost in lives and wounded if we had remained in Vietnam? No one asks this President: How many American deaths, disabilities and dollars are you willing to expend in this elusive goal of bringing peace and democracy to Iraq?

The administration's position conjures up this analogy for me: Arsonists (the Administration) start fire to a building, and residents and firefighters are killed. When it appears that the building is about to collapse causing further deaths to both groups, the Arsonists (the Administration) who caused the fire in the first place, take their megaphones to the streets and shout at the spectators (the Democrats): "What are you going to do about this?"

Because of the quagmire that this President has created, there may be no adequate solution, but when the Democrats respond with a variety of proposals, only this Administration could say with a straight face-----that proposals to bring the troops home to safety put them in harm's way, while keeping them in Iraq indefinitely---does not!

YOUR MONEY OR YOUR RIGHTS?

2007-07-31T19:35:00.001-07:00

Adam Liptak reports in the N.Y. Times (7/16/07) that welfare recipients and applicants in San Diego are subject to unannounced visits and searches to assure that they are not defrauding the government. In other words, those "who want public benefits must give up their privacy", and apparently that means their rights under the Fourth Amendment regarding searches and seizures. Wow, what a great idea!

If that is the law and I were a law enforcement officer, I would be so ecstatic I wouldn't know where to begin. First, I think I would be tempted to bust into the offices of the defense contractors to see what evidence I could find of over-billing. But wait, maybe barge into those oil companies with their large subsidies to see whether or not there is any evidence of price fixing. But hold on, what about the cigarette companies and their tobacco subsidies and the possibility of gazing at those scientific reports they have and comparing them with what they have been saying for years to the public about their products.

The welfare investigators who happen to come across evidence of other crimes pass that information on to the appropriate law enforcement agency. So if any of the above corporate searches don't hit their original targets, maybe we can still find some tax evasion or bribes just by rummaging through their books in the same way the welfare investigators rummage through drawers looking for men's underwear.

However, the corporations receiving tax benefits or subsidies from the government should have the same opt-out options as the welfare recipients. Mr. Liptak points out that "the majority in a divided three-judge panel indicated "that people are free to opt out - by giving up their welfare benefits." In other words, welfare recipients (as in one of those game shows) can keep the money and give up their Fourth Amendment rights, or keep the rights and starve --both themselves and their families. Sounds fair to me.

So, corporations should have the same privilege. They can keep their subsidies, their tax breaks, their government contracts as long as they give up their Fourth Amendment rights, or they can retain those rights and give up the benefits. Right!

The purpose of these unannounced searches is laudable---to root out welfare fraud. But welfare fraud is a crime, and merely because it is "welfare" should not make the Bill of Rights inapplicable. When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights.

THE RESTROOM ATTENDANTS' LOYALTY OATH

2007-07-12T18:43:00.000-07:00

In view of the current revelations regarding the administration's suppression and control of the Surgeon General, it is apparent that no branch of the government has escaped politicization. I envision the government's restroom attendants lined up every morning at attention, mops on their shoulders, pails at their sides and hands on their hearts reciting the "Bushie" loyalty pledge.

In respect to both the U.S. Attorneys and the Surgeon General, the President's press secretary has said that the President should be able to carry out his own policies. No one can quarrel with that statement, except when those policies further partisan interests rather than the public interest. The administration can properly establish priorities for United States Attorneys in focusing on particular types of criminal activities, but it cannot and should not seek to use the criminal justice system to accomplish political gains or to protect political allies.

It can encourage and even direct the Surgeon General to focus on particular scientific and medical areas, but it cannot and should not attempt to conceal reports and information which would serve the public interest. The White House has chosen to deny the accusations of Dr. Carmona that he was directed not to speak about stem cell research, sex education and prison health care and that a report on the dangers of second hand smoke was "watered down" and delayed. (NYTimes 7/11/07) But denials by this administration of any wrongdoing or falsity are so automatic that it is fair to treat them simply as admissions. One only need ask what possible motive could Dr. Carmona have for fabricating all of these stories?

But nothing better symbolizes the priorities of the current administration than its efforts to discourage support for the Special Olympics solely because of its historic ties to the dreaded Kennedy clan. Dr. Carmona was asked by a senior official: "Why would you want to help those people?" By those people, he, of course, meant the Kennedys, but in turn, the administration was willing to forgo support of an event and organization that gives encouragement and aid to thousands of special children. But for an administration that would rather see people die than allow stem cell research, it should come as no surprise in a choice between hurting a cause sponsored by the Kennedys or helping that worthy cause because of the good that it does, that they would pick the former over the latter. Politics has infected every corner of this administration, and apparently even the Surgeon General, the country's chief doctor, has suffered from its effects.

SEX v. NATIONAL SECURITY

2007-07-03T09:48:00.000-07:00

Everything that could possibly be said about the commutation of "Scooter" Libby's sentence has been said. Whether or not one accepts the reasons for the President's actions, it is the hypocrisy of those who support it and also sought the impeachment of President Clinton that I find so irksome. President Clinton lied in a civil proceeding in an effort to conceal a sexual relationship. True, his conduct and its concealment demeaned the presidency, but it had no relationship whatsoever to the conduct of his office or his administration. Nonetheless, those seeking impeachment were intent upon causing the President of the United States to be removed from office, humiliated and embarrassed, and the nation disgraced in the process.

Compare that with the subject matter of Mr. Libby's conduct in a criminal investigation and what it was he was trying to conceal. The administration sought to discredit a critic of its justification for the war against Iraq; was willing to use secret information to do so, and as a result outed a CIA agent and endangered other operatives as well as our national security. The cover-up involved an outrageous abuse of power to silence opposition to the war and exposed a willingness to take any action to accomplish it, even if illegal.

The crimes of perjury and obstruction of justice are serious and in these two cases may be the same on their face, but Mr. Clinton's lie was to avoid causing him and his family embarrassment. The lies of the Bush administration brought us to war, killing and wounding thousands of our own soldiers and innocent citizens of Iraq, brought about world hatred against us, the loss of the respect of our allies and a government, apparently so intent in spreading democracy abroad, that it has forgotten to practice it here at home.

The irony is summed up by the fact that no one has been indicted or punished for the outing of Valerie Plame, despite President Bush's assurances that he would do so. The sentence of the one person charged and convicted of covering up the underlying crime has been commuted, and the only person imprisoned as a result, was a newspaper reporter for her stand in protecting the First Amendment.

LOST PANTS SUIT v THE SUPREME COURT

2007-06-16T09:35:00.000-07:00

It is a toss-up for me as to whether the nation's perception of our judicial system is injured more by the judge who is suing for $54 million over his lost trousers or by the Supreme Court's decision dismissing an appeal that was filed within the time period specifically allowed by a federal judge----on the grounds that it was filed too late!

In Bowles v. Russell the petitioner moved to extend the period for filing a notice of appeal. The District Court granted the motion and granted him 17 days to file, rather than the 14 days authorized by the applicable Federal Rule of Appellate Procedure. He filed within the time period prescribed by the District Court order. The Sixth Circuit dismissed the appeal on the grounds that the notice was untimely, and the Supreme Court affirmed, agreeing that, as a result of the untimely filing and despite the petitioner's reliance upon the District Court's order, the Sixth Circuit had no jurisdiction to hear the appeal.

The basis for the ruling was that the time period prescribed by Congress was "mandatory and jurisdictional". In doing so the majority chose to ignore that line of cases holding that time prescriptions are not jurisdictional, unless Congress has specifically designated them so. But even if the majority's analysis is correct, it not only failed to create an exception based upon the petitioner's reliance upon the District Court's order, but rather chose to overrule existing decisions which would have saved the appeal. I suppose that one cannot argue with the logic that if the time period is "jurisdictional" that a court cannot confer jurisdiction after it ceases to exist, and that neither"unique" nor any other kind of circumstances can confer jurisdiction that has already expired. But this case does not involve a delineation of the kinds of cases that federal courts may hear but rather a rule for processing claims in those matters over which the courts have jurisdiction.

But consider these circumstances: The error was brought about solely by the court. The petitioner neither contributed to nor caused it. Actually it is inaccurate to say that the District Court extended the time to 17 days. The Court actually fixed the date by which the appeal was to be filed, and it turned out be 17 days. The mere date would not have put the petitioner or his counsel on notice unless they calculated the elapsed time. There is nothing to indicate that the notice of appeal could not or would not have been filed within the 14 day period, if the order had required it, nor is there any evidence that any party was prejudiced by the 2 day delay. No objection was made by the respondent to the extension, presumably because neither counsel noticed it.

The bottom line is we have an appeal dismissed in a murder case (notwithstanding that petitioner filed his notice of appeal in accordance with the time specifically granted him by a United States District Court) on the grounds that the Court exceeded its authority in fixing the time through no fault of the petitioner. Has strict construction replaced all sense of fairness?

IS CELEBRITY JUSTICE UNEQUAL?

2007-06-11T14:59:00.001-07:00

I cannot believe that I am writing about the Paris Hilton case, but I find that it has some significance. The Sheriff in the Paris Hilton case insists that he did not "re-assign" her to home-confinement because of her celebrity status, but rather that it motivated the severity of the sentence imposed by the court. The Sheriff contends that Paris Hilton received a much stiffer sentence than someone else would have received with the same history and charges. And my question: is there anything wrong with that? Would it be appropriate for a court to impose a lengthier sentence upon a person solely because of his or her public persona or position compared to a lesser known person guilty of the same offense, all other things being equal?

I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.

Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?

The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.

I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?

AN OPEN LETTER TO THE VOLOKH CONSPIRACY

2007-06-09T09:04:00.000-07:00

My thanks to the Volokh Conspiracy for fulfilling my purpose in starting a blog. I did so in the hope that I could engage and encourage reasonable and rational discourse on a number of topics in which I had an interest. Responses to my posts were rather meager until this week when the Volokh Conspiracy at the instigation of my former law clerk, Eric Muller, referred to my post on X-Judge: Interrogatories for Prosecutor Fitzgerald. Frankly, I had hoped that prior posts would have created the same kind of activity, but I have learned as a neophyte in the blogoshphere that they need a boost from such respected and recognized sources as The Volokh Conspiracy or Is That Legal?. I thank you both for launching me. I hope that it is only the beginning.

The irony is that it was a comment to the Volokh Conspiracy on the day that Prof. Orin Kerr was kind enough to announce the launching of my blog, that caused me to consider ending it the moment it began. Apropos of nothing James Fulford referred readers to Jonathan R. to learn how wrong my decision was in granting habeas corpus to Rubin "Hurricane" Carter. I do not know Mr. Fulford or the mysterious Jonathan R or their credentials, but the clear suggestion is that there is where the truth can be found.

The article is entitled: WHAT'S WRONG WITH JUDGE SAROKIN'S DECISION? PLENTY! The "truth" is placed side-by-side with a column entitled: What Sarokin Says. I have no intention nor the time to go back and review my decision (incidentally written almost 25 years ago) to determine whether or not the quotes attributed to me are accurate. But to take just a few for example, I cannot visualize my saying in an opinion:

"Lieutenant DeSimone's testimony on Carter's account of his whereabouts cannot be believed for some reason." or
"Anna Brown perjured herself to help her daughter marry a policeman."

I know a little bit about my own writing style, and those sure don't sound like me. But even if accurate, virtually none of the "inaccuracies and misstatements" have anything to do with the basis for my decision. I found that the prosecutor made an improper appeal to racism in his closing, and that a false report regarding a lie detector test was used to manipulate a witness (Bello) to return to his original testimony at the first trial that he was outside the bar when the shootings took place and not inside as he was prepared to testify at the second trial (and if my recollection is wrong here---the opinion speaks for itself.)

There, indeed, may be factual inaccuracies in my opinion. (The record was over 140,000 pages.)There also are others who disagree with the conclusion, but what astonished and disheartened me was the source of Jonathan R.'s "truth". He did not refer to the lengthy record, the petitioner's briefs and submissions, the unanimous affirmance of my decision by the United States Court of Appeals, nor the denial of cert. by The United States Supreme Court. No, his sole source to conclude that my decision was wrong was the brief of the prosecutor!----the losing party! If that is the test, then I am certain one would conclude that all of my decisions denying habeas corpus relief were also wrong, if one simply compared them against the petitioner's brief.

I do not want to spend my time sticking my thumb in the dike of every criticism that flows out against me, but sometimes when someone else's finger pokes me in the eye, I feel the need to respond. (As I did with the National Review- see X-Judge THE NATIONAL REVIEW RE-TRASHES ME). I know that being out here in space makes me vulnerable, but I hope I can spend the time discussing the issues rather than defending my past---- of which, incidentally I am very proud.

My thanks again to Eugene Volokh, Orin Kerr and Eric Muller for giving me the opportunity to be heard, even though I have found that in blogging ---- it is better to give than receive.

INTERROGATORIES FOR PROSECUTOR FITZGERALD

2007-06-06T13:24:00.000-07:00

I. Lewis "Scooter" Libby, Jr. has been convicted and sentenced. The debate rages over the propriety of the prosecution, the severity of the sentence and the probability of a pardon. I wince at those who belittle the charges of perjury and obstruction of justice. But I do agree that the failure to indict as to the underlying charge of "outing" Valerie Plame as a CIA operative requires some explanation.

Federal grand jury presentments are no longer in favor for reasons too complicated to discuss here, but in view of the length and expense of this investigation and the public interest involved, it would seem that the special prosecutor should issue some statement or report as to the result of that investigation, unless there is some prohibition against his doing so. In view of the obvious thoroughness of Mr. Fitzgerald's investigation, he, more than anyone else, has the knowledge of what actually transpired. Here are some of the questions that should be answered:

1. Was a crime committed in the outing of Valerie Plame Wilson? If so, why was no one indicted?

2. If not, what elements were missing?

a. Is it because she was not "covert" as many have claimed?

b. Is it because of the geographic location of her station?

c. Is it because of some time period?

d. What other reasons were there for not prosecuting?

3. Who were the persons responsible for the disclosure of the information regarding her?

4. Was an agreement reached between the prosecution and Robert Novak? If so, what were the terms?

5. Did the prosecutor make any recommendations or referrals for actions (other than criminal) such as disciplinary, to be taken against any individuals other than Mr. Libby, and if so who and what? Would he recommend any now?

Some of these matters were or may have been presented during the course of the Libby trial and reported in the media. However, the country deserves the details in a formal presentation from the official in charge, when it appears that the power of the administration was utilized and abused for the sole purpose of discrediting a critic on an issue relevant to our going to war against another country.

THE DISCRIMINATION HISTORY DEFENSE

2007-05-30T20:51:00.000-07:00

Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!

WHAT A DIFFERENCE A DAY MAKES

2007-05-24T13:11:00.000-07:00

In a previous post (Punitive Damages v. The Death Penalty 3/22/07) I discussed the difficulty I thought the Supreme Court would have reconciling its decision that a jury in awarding punitive damages could not consider prior harm to identifiable victims, while a jury in a death penalty case could consider the possible (and unlikely) effect upon unknown persons. The prosecutor in the Weaver case, in urging the death penalty, had argued to the jury in emotional terms that they should "send a message" to deter others. I think such an argument is totally inappropriate and agree with the Eighth Circuit that it is "unfairly inflammatory" and should warrant reversal.

The dissent from the per curiam opinion which dismissed the writ of certiorari on the grounds that it was improvidently granted, is more interesting in what it says about the Antiterrorism and Death Penalty Act of 1996 (AEDPA) than what it says about the propriety of the prosecutor's closing. Although the history of the matter is somewhat convoluted, apparently everyone agrees that the District Court improperly dismissed the defendant's habeas petition on the ground that he failed to exhaust his remedies, because he expressed his intention to apply for certiorari from the Supreme Court. His original petition was filed pre-ADEPA, but he re-filed after its adoption.

Not without considerable justification, the dissent argues that the matter should have been decided on the merits as to whether or not the Eighth Circuit had exceeded its authority under the Act in setting aside the capital sentence. However, what caught my attention was the following question posed by the dissent: "Is what happened here any less rational, any less fair****than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after?" What a difference a day makes! The logic is compelling, but the consequences of the statute are chilling.

Further logic suggests that what would have been grounds to reverse the imposition of the death penalty on one day might be gone the next. The dissent suggests that the Court's failure to deal with the matter on the merits causes harm by requiring the State of Missouri to try the defendant again after two decades, and "The greatest harm is done to the AEDPA, since dismissing the writ of certiorari leaves the grossly erroneous precedent on the books".

But could it be that the greater harm comes from the Act itself which may serve to deprive a person sentenced to death of grounds for reversal which otherwise would be recognized, but for the more stringent standard of review mandated by AEDPA. Many, who heretofore would have avoided the death penalty, will now face it ----solely by act of Congress. Here today; gone tomorrow.

WHAT DO ALBERTO GONZALEZ AND A CHICAGO DIVORCE LAWYER HAVE IN COMMON?

2007-05-19T19:04:00.000-07:00

They both have demeaned the legal profession. A huge billboard in Chicago's nightclub district proclaims: "Life's short. Get a divorce" It features photographs of "a sexy, scantily clad woman on one side and a buff, bare-chested man on the other". (NYTimes 5/13/07) No matter what the message or the motive of the messenger, no one can dispute the right of the lawyer to offer her wares in this fashion. It has met with considerable success. As with the Attorney General, apparently all things are to be judged by whether or not they are working, not whether they are right or wrong. Illegal wiretapping, secret prisons, torture, unlawful detentions, political firings of U.S. attorneys, suspension of habeas corpus, rejection of the Geneva Convention, and undoubtedly a host of other conduct yet to be revealed (such as a coercive hospital visit to the previous Attorney General seeking approval of an illegal wiretapping scheme) are all justified on the basis that no further attacks have occured since 9/11. Ergo, these tactics, like the billboard poster, are working, The only difference being that encouraging divorce is not illegal or unconstitutional, although in this administration it might be one day.

As to the firings of the U.S. attorneys, nothing infuriates me more than the party line that these are political appointments, and the President, as did President Clinton, can replace them all. Yes, these appointments are political as are those to the courts, but once appointed, U.S. Attorneys, Judges and Justices cease to be political agents. To do otherwise violates their oath of office. Prosecutors should not be dismissed for pursuing criminal conduct by members of the party in power or failing to pursue actions for the sole purpose of embarrassing the opposition and affecting the outcome of elections. Justice is not meant to be used as a political weapon.

So look for a billboard with that infamous picture of the hooded prisoner at Abu Ghraib on one side and a smiling picture of the Attorney General on the other saying: "Stop Terror. Torture Works", because there is little that the current Attorney General does not have in common with the sleazy divorce lawyer.

A JUDGE STRIKES BACK

2007-05-08T10:10:00.000-07:00

I have followed with some interest the libel suit instituted by a Massachusetts judge against the Boston Herald, which resulted in a $2 million verdict against the newspaper and was recently upheld. (NYTimes 5/8/07) I remember being outraged when I read that the judge, among other reported misconduct, had said about a rape victim: "She's 14. She got raped. Tell her to get over it." If true, it was inconceivable to me that such a person could be permitted to continue serving on the court. Apparently the jury found that it was not true and rendered its verdict accordingly.

What makes this case unusual, is that judges who are criticized rarely have the opportunity to respond in any fashion. Usually, they must remain silent no matter how unfair, unjust or untrue the accusations. I am totally in favor of robust analysis and criticism of judicial opinions and conduct, but the judge's inability to respond should place an enhanced burden on the critic to be accurate and fair.

I strongly believe this, not so much to protect the judge's sensibilities, but to maintain the public's confidence in the judiciary. I have spoken out for years about my concern that this constant barrage against judges, the mantra of "activist", "liberal", "soft-on-crime" and "legislating from the bench", all serve to erode the public's perception of and confidence in the judiciary. These labels which may produce some immediate political gain, in the long run will harm our judicial system if it causes the people to cease to believe in it.

SUSPECTED TERRORISTS CAN BE IMPRISONED BUT NOT DENIED GUNS

2007-05-05T16:03:00.000-07:00

I find it ironic, but not surprising, that the NRA opposes a bill that would prohibit suspected terrorists from buying firearms. (AP 5/5/07) I should disclose that I have never seen a gun control bill that I didn't like. I agree with the slogan that: "Guns Don't Kill People; People Kill People", but call me crazy, I think a person who did not have a gun would have difficulty shooting anybody.

But the tens of thousands of deaths every year and the slaughter of innocents by guns doesn't seem to deter the trend of having every American citizen packin'. "A Gun in Every Pocket" is reminiscent of the old slogan: "A Chicken in Every Pot", except there the goal was to feed all people, rather than improve their chances of killing others or being killed.

Having disclosed my bias, the irony that I see is the supposition (maybe incorrect) that many, if not most, of the members of the NRA have no difficulty with the unfettered discretion of the President in detaining "suspected terrorists" indefinitely and denying them many traditional rights. Apparently it is acceptable to incarcerate them on suspicion, but not deprive them of their right to bear arms.

Of course, the ultimate irony may occur when one of those "activist, liberal, soft-on-crime, legislating judges" that conservatives are always complaining about, comes along and agrees with them and declares the statute unconstitutional on the same grounds that they oppose it.

BLINDING JUSTICE

2007-05-04T17:07:00.000-07:00

The Ohio Supreme Court (NYTimes 5/3/07) "overturned a law that required a prosecutor's consent to allow felons who had pleaded guilty to seek DNA tests that could prove their innocence". The Times reports that other states have similar legislation. We know that innocent persons are convicted of crimes, and there is probably an even larger number of those who plead guilty to crimes that they did not commit----many in fear of going to trial and receiving a much longer sentence than the plea bargain provides. (Which may explain the reduction in criminal trials reported by Adam Liptak NYTimes 4/30/07.) There is no way to calculate how many such cases exist because the same fear precludes subsequent challenges.

But what is difficult to understand is why a state legislature would enact such a statute even if only one innocent person entered a guilty plea. The proffered justification for the denial is that it interferes with the peace of mind of the victim "if a convict sought a hearing on DNA tests". It is difficult to envision how a DNA test would involve the victim, but even if it did, one would think that a victim would prefer to be inconvenienced rather than run the risk of having an innocent person remain in prison while the real criminal roamed free.

The Ohio Supreme Court wisely overturned the legislation on the ground that it violated the separation of powers and declared that the legislature"may not impede the judiciary in its province to determine guilt in a criminal matter". We should be searching for ways to ease the plight of innocent persons confined for crimes they did not commit, no matter how small the number may be, rather than impose barriers to their exoneration.

MILEAGE POINTS FOR JAIL UPGRADES?

2007-04-29T18:26:00.000-07:00

Today's New York Times 4/29/07) reports that minor crime offenders can obtain "pay-to-stay upgrades" at a number of city jails in California. The accommodations ranging from $75 to $127 per day are cleaner and safer and allow for the right to bring certain electronics as contrasted with the those provided the non-paying clientele. The system is justified by the income it generates and sells itself to prospects on the basis "that you are isolated and you don't have to expose yourself to the traditional county system." You don't enter the jail by the same means as the non-paying guests. In other words, even though you have been adjudged a criminal, you don't have to be treated as one, if you can afford it.

Rubin "Hurricane" Carter describes life in prison as being locked in "an iron cage**** I was a prisoner, a number, ******Not a person. Not a human being. But a body to be counted fifteen or twenty times a day." Of course, his confinement followed convictions for murder, not some minor offense. But it is important to recognize the harshness of any jail or prison time and that some offenders should be treated differently--should be isolated from the repeat and violent offenders. However, that selection and segregation should not depend upon the wealth of the offender. The concept is valid but the criterion is not. Just because a criminal can afford to be a frequent flier should not result in a jail upgrade.

NATIONAL REVIEW RE-TRASHS ME

2007-04-17T20:38:00.000-07:00

Someone forwarded me an article which recently appeared in the highly respected National Review (Online). It was a re-trashing of me, based upon an opinion that I had written while on the United States District Court some 15 years ago in the Haines case. Also, I haven't served as a judge for 11 years. What a proud moment in journalism that must be! But in all fairness, putting aside the venom in the article, most of it is true. I was criticized by the Court of Appeals, reversed and was removed from the case, and nonetheless, despite my obvious shortcomings was nominated and confirmed for a seat on the Third Circuit Court of Appeals.

The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:

"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."

At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.

But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.

My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:

The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****

Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.

MALPRACTICE MEANS NOT SAYING YOU'RE SORRY

2007-04-12T12:46:00.000-07:00

I learned for the first time today that there are laws in many states prohibiting the use of a doctor's apology as an admission in a malpractice claim against the doctor. (AP, R.I. 4/12/07) According to the report, at least 28 states already have the legislation and 8 other states are considering adopting it. Furthermore, the article reveals that insurers warn doctors against the dangers of apologizing or using words such as "error", "mistake", "fault", or "negligence" in talking to their patients.

Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.

But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.

I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.

PUNITIVE DAMAGES v. THE DEATH PENALTY

2007-03-22T15:50:00.000-07:00

The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)

I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.

It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?

Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!

HOW MUCH ARE WE WILLING TO SACRIFICE IN THE WAR AGAINST TERROR?

2007-03-12T17:01:00.000-07:00

How much are we willing to sacrifice in the war against terror? Any criticism of the erosion of our civil rights is met with the argument that it is necessary and it is working. We haven't had an attack since 9/11! The questionable wire taps, secret foreign CIA interrogation prisons, possible torture, prolonged detentions without counsel or hearings, rejection of the Geneva Convention, the gathering of information by the FBI about American citizens and companies (revealed just today), the elimination of habeas corpus for certain categories of persons, etc. are all justified in the name of fighting terror and I believe, although I have nothing to substantiate it, that most of the country approves.

But since when have we tested constitutional violations by asking whether or not they produce favorable results? Do we condone beatings of suspects because they produce confessions? Do we condone unlawful searches because they disclose the whereabouts of illegal weapons or incriminating evidence? Do we condone the concealment of exculpatory evidence because it might aid the guilty defendant? Would we condone any of these practices on the grounds that they were necessary and were working! Or is the fear of terrorism so great that we are willing to sacrifice many of our cherished ideals and rights?

When Prof. Markel invited me to post to his blog and told me his readership was primarily law professors, I told him that my blog (X-Judge) was not "academic", and frankly, with but one exception, I hope never to cite a case again. But I leapt at this opportunity because I would be interested in knowing how law professors feel about these issues; what they are teaching in their classrooms, and what they are they learning from their students. I fear that we are in a constitutional crisis and what we give away now we may never get back.

This post was the result of an invitation to PrawfsBlawg.

THE INJUSTICE DEPARTMENT

2007-03-03T17:45:00.000-08:00

Federal judges and prosecutors are concededly political appointments. In concept, judges were to be appointed based upon their competence, experience, integrity and fairness. Unfortunately, judicial philosophy has become the overwhelming criteria. The current administration decries "activist" judges, and then seeks to appoint those who will carry out its conservative agenda. (If that is not activism, I don't know what is.) However, those judges who disappoint by not fulfilling the expectations of their nominators cannot be terminated. President Eisenhower would have loved to discharge Justice Brennan for his liberal decisions, but thanks to life tenure and its guaranty of judicial independence, he could not-----all to the benefit of this country and its citizens.

But not so for federal prosecutors. During my judicial career, I have had the opportunity to see hard-working U.S. Attorneys and their assistants perform their duties in a dedicated and impartial fashion. That seems to be the general consensus regarding those appointees who are now to be replaced by the administration. As abhorrent as I find the practice, I am opposed to requiring the prosecutors to testify before Congressional committees. They should not be put in the awkward position of defending their choices as to past prosecutions and will be prohibited from speaking of pending ones. Few even seem to know why they are being replaced. According to the press, the main complaint does not involve competence, but rather the exercise of their discretion in whom to prosecute or not prosecute. Apparently, they are being removed either for their failure to do the bidding of the administration in prosecuting some or in choosing to prosecute others whom the administration preferred they did not; or merely to replace them as a patronage reward.

Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today:
The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.

PUNISHING PUNITIVE DAMAGES

2007-02-23T12:51:00.000-08:00

The Supreme Court has decided (in the case of Philip Morris USA v. Williams) that the due process clause prohibits calculating punitive damages based upon harm caused to strangers to the litigation. The closeness of the vote reflects that there are valid arguments on both sides of this issue.

Let us assume that someone has been killed as the result of a defective tire. In the first law suit, the manufacturer learns that the tire is defective. Nonetheless, it continues to manufacture the tire and 100 more persons are killed as a result. Should not the company suffer a greater punishment with each new death? The more deaths; the more egregious the conduct to be punished. Therefore, it would be wrong not to consider harm to others so long as there was adequate proof of the prior deaths and their cause. The purpose of punitive damages is to punish past and deter future wrongful conduct. The continuance of that outrageous conduct in the face of knowledge as to its harmful consequences should certainly serve as one of the bases for calculating punitive damages. The prior conduct and record of a criminal defendant is considered in deciding the severity of punishment, even though the defendant may have already suffered punishment for those prior crimes. Why should it be any different in meting out punishment in a civil matter in which punitive damages are warranted?

But now let us assume that at several trials brought on behalf of those who have died from the defective tire, each jury is told about the 100 deaths as a basis for calculating punitive damages. Each then would be punishing the manufacture for the same 100 deaths. Therefore, it would be wrong to consider harm to others if it resulted in repetitive punitive damage awards for the same conduct and harm.

I wrestled with this very issue in 1989 in the case of Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053, and concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.

COURT TV OR NOT TO BE

2007-02-17T13:45:00.000-08:00

One of the fans of my blog (maybe the only one) suggested that I write about the Anna Nicole Smith case, and I responded that I could not conceive that there was anything left to say about it, but I was wrong. Justice Anthony Kennedy recently appeared before the Senate Judiciary Committee making the repeated and wholly justified (and usually ignored) plea for greater compensation for federal judges. He was diverted from his topic by Senator Specter who again raised the spectre of televising Supreme Court arguments.

Over the years I have been ambivalent about the televising of court proceedings. I recognize the usual arguments about the potential effect upon witnesses, jurors and possibly judges, but I have seen studies that suggest that the presence of the courtroom camera is soon forgotten and its effect minimal. On the other hand, although not a regular watcher, I have caught glimpses of the TV judges---rude, impolite, snide and impatient, rendering decisions from the hip, and fear that the public has come to conflate them with our real judicial system.

I can certainly understand Senator Specter's position. Wouldn't it have been marvelous for the country to see and hear live the arguments in a case that decided who would be President of the United States? Justice Kennedy is properly concerned about the single sound bite at the end of a session, but doesn't that same risk exist with the print media? And at the trial level, the country should be able to observe the "Scooter" Libby trial, one that so clearly demonstrates the workings of the current administration. But I also thought that showing the O.J. Simpson trial was the right decision, so that when he was convicted, the African-American community would have had the opportunity to observe the fairness of the trial.

Televising court proceedings might also serve to deter the real judges who are rude, arrogant and impatient and at the same time demonstrate the respect and fairness usually displayed by most judges serving throughout this country. I have always believed that how the litigants and lawyers are treated is as important as the decision reached. Every case will have its losers. How they feel about their treatment during the process is the true test of the system.

And that brings me back to where I started---the Anna Nicole Smith case. All of the positives things that I thought televised court proceedings might bring to educate the public and engender respect for our judicial system were eradicated watching the Florida proceeding, which was to determine where Ms. Smith was to be buried. I don't doubt the Florida judge's good intentions, but I thought that I was watching a poker game in someone's basement. Lawyers were arguing directly with each other. Witnesses were testifying from a variety of chairs or standing. It was difficult to tell who were the witnesses and who were the lawyers. The judge, despite his oft repeated desire to maintain the dignity of the deceased and the proceeding, seem to do everything to accomplish the opposite while expanding the scope of the proceedings well beyond the issue presented and probably beyond his jurisdiction as well. I suspect to the public this case is already part fact and part fiction, but for the dignity of our court system, I would love to see that TV plug pulled.

WHAT? NO SOFT ON CRIME CHARGE?

2007-02-04T13:49:00.000-08:00

My conservative, former college roommate wrote to express his enjoyment at reading my blog, but suggested that I should try to be a little less critical and focus on some of the more positive things happening in the world. I conceded to him that my current writings were somewhat motivated by the years of mischaracterization and misinformation that were frequently used to describe my opinions, while I served on the court. Indeed, the same old chestnuts were roasted the day my first blog entry was published. Senator Obama in his new book, The Audacity of Hope, relates an incident where the mere change of a line in a speech about Lincoln brought down the wrath of the conservative world---suggesting that he was comparing himself to Lincoln.

In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".

But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.

How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.

WHY WE SHOULD CARE ABOUT THE GUANTANAMO PRISONERS

2007-01-19T16:43:00.000-08:00

When law students ask me what was my greatest case in the 25 years that I was a trial lawyer, I tell them that during the 1967 race riots in Newark, New Jersey, a group of lawyers was organized to represent African-Americans who were arrested during the riots, and I was among those who volunteered. I represented a man who had been swept up with a group of rioters and looters, spent 5 days in prison without being able to tell his family where he was, 7 days without legal representation and a total of 15 days before he had a hearing. At the hearing, he testified that at the time he was arrested, 5 A.M. in the morning (during a curfew) he was waiting for a bus---the same bus that he had taken for the last 16 years to go to his job. Although surrounded by the riots and the fires, he did not want to miss a day's work, because he needed the money to support his family. He was acquitted and released. That was my finest hour.

No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.

By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.

The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?

There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.

PUNISHMENT BY ACCUSATION

2006-12-24T19:00:00.000-08:00

When I was in my early teens my father wrote a letter to the editor of the local weekly newspaper criticizing a report about a local businessman who had been charged in another state with passing a bad check. My father complained that the major newspapers were unlikely to run the story and that it was unfair to give credence to the charges and injure the reputation of the resident until he had been found guilty. The newspaper responded, as one would suspect, about the freedom of the press and the right of the public to know. The charges were eventually dismissed as a case of mistaken identity (and coincidentally, my father became the editor of that same newspaper several years later.)

No one can dispute the right of the newspaper to run that story under the First Amendment. But I had the privilege of being a friend to the late, great Fred Friendly, (former president of CBS News and creator with Edward R. Murrow of See It Now), and he often said:"There is a difference between what you have a right to say and the right thing to say." Which brings me to the now infamous Duke Case. The district attorney in that case may be guilty of other improprieties (N.Y. Times 11/24/06), but I would like to focus on his public pronouncements regarding the case.

In this day and age, it is unlikely, even if the mainstream media chose to institute some self-restraints in publishing criminal charges, that they would not find their way to the public through the Internet. Not so, however, for prosecutors who choose to hold press conferences about indictments. Those who do so forever stigmatize the named defendants, even if the charges are eventually dropped or the defendants are acquitted. Some restraints are imposed upon prosecutors, but they are concerned more with protecting the defendant's right to a fair trial rather than his reputation.

There may be some circumstances in which the publication of charges are in the public interest, such as the apprehension of a serial murderer or rapist who has created fear in a given community. But most announcements by a prosecutor do not serve that function. The defendants in the Duke case may or may not be guilty of some criminal activity. The charges against them may have been made public even absent the pronouncements of the district attorney, but his actions most assuredly guaranteed it.

If these young men are guilty, then the damage to their reputations will have been well-deserved, but if they are not, they will never escape the stigma that has been imposed upon them. That may be the unfortunate and inevitable outcome of our judicial system, but prosecutors would serve the system better by exercising greater restraint in announcing charges and identifying those charged. The time to punish defendants is after they have been convicted not when and merely because they have been charged.

WARNING: DON"T ATTEND MARY CHENEY'S BABY SHOWER IF YOU WANT TO BE A FEDERAL JUDGE

2006-12-20T15:10:00.000-08:00

To all of you who urged me to continue blogging despite the mud-slinging, I express my gratitude. In particular, I was convinced to continue by an e-mail from Lucia Liljegren forwarded to me by my former law clerk, the distinguished law professor and author, Eric Muller. Without your encouragement I would have missed the opportunity to discuss the remarkable opposition stance by Senator Sam Brownback of Kansas to the nomination of Janet Neff, a Michigan state judge, to the Federal District Court.

Let me see if I understand this. So a person is unqualified for the federal bench because she attended a "same-sex commitment ceremony for the daughter of her long-time neighbors." (N.Y. Times 12/19/06) Not presided at, but ATTENDED! But even worse, this "impediment" could be removed by the Faustian bargain of her agreeing to recuse herself from all cases involving same-sex unions! Nothing is more symbolic of the efforts to pervert the federal judiciary than the attempt to impose this condition upon a nominee.
Forget for a moment the insult to the fundamental principle of the separation of powers, and consider the logical application of the Senator's condition. If her mere attendance at this function puts into question her impartiality sufficient to require her recusal in all cases involving same-sex unions, what of the nominee who has witnessed an execution? Is he or she disqualified from hearing all death penalty cases? What of the nominee who regularly attends church services or attends a wedding at a church or synagogue? Must she recuse herself in all cases involving church/state matters? Are former prosecutors or criminal defense counsel barred from hearing all criminal matters? Is the judge who reads the daily newspaper barred from deciding matters which relate to freedom of the press?

I concede that some of these examples are absurd, but so are the Senator's grounds for opposing the nomination and his condition for confirming it (although he indicates that he might oppose it nonetheless). Passive attendance at a celebration certainly should not be a grounds for disqualification to the federal bench; nor should the expression of views on controversial matters. Although some nominees have denied it, do we want judges who have have never considered, spoken or written on such controversial issues as same-sex marriage, abortion, stem cell research, the death penalty, etc. Their positions or views may cause senators to vote for or against their confirmation, but a disqualification or recusal agreement should never be exacted as a condition to confirmation, particularly by a single senator.
The Senator's attempt to mold the judiciary in his own image should give us all pause and concern. It is a sad day for the judiciary and the country when attendance at a friend's celebration is cause for disqualification.

Warning: Don't attend Mary Cheney's baby shower if you want to be a federal judge.
HAPPY NEW YEAR

OUTSOURCING TORTURE

2006-12-13T19:13:00.000-08:00

Is there anything that will not be condoned in the name of fighting terrorism? Maher Arar, a dual citizen of both Canada and Syria, but a resident of Canada since a teenager, alleges that he was seized by representatives of the United States government at Kennedy Airport, held and then sent to Syria where he was interrogated and tortured. He was eventually released when it was determined that he was not a terrorist. Apparently no one now claims otherwise.

His suit against certain named U.S. officials for damages under what is known as the Bivens doctrine was dismissed on the grounds of "a special factor" urged by the government that the violation of his rights occurred "during efforts to protect national security and that affected foreign affairs", and that the judiciary was not the branch to balance individual rights against national security. (His lack of U.S. citizenship was not a basis for the dismissal.)

The judiciary was created, in part, to reign in abuses by the other branches if they violated the rights granted to individuals. Hopefully, we do not have to debate in this day and age, that persons here and everywhere have the right to be free from torture. Torture, although practiced in many places, is virtually forbidden everywhere and most certainly violates the Fifth Amendment, our laws and our treaties. So what is the balancing that must take place? Is the argument that forbidding torture or compensating someone who has been tortured under the auspices of or in complicity with our government may somehow run contrary to national security?
The judiciary has the role and duty of protecting constitutional rights during times of national crisis and war, even to the extent of limiting the power of the executive branch. In such times, the judiciary should be even more vigilant, because it is in such times that our rights are in the greatest jeopardy. President Truman's seizure of the steel mills during the Korean War (on the grounds that a strike would have affected the war effort) was prohibited by the Supreme Court noting that a president cannot elude the restrictions of the Constitution by the assertion of his military role. Likewise, the First Amendment trumped the government's efforts to block the publication of the Pentagon Papers despite the government's assertion of damage to the national security.
Mr. Arar has no other remedy other than his claim for damages. Congress has not explicitly denied the remedy under these circumstances, nor provided any alternative. The government in a formal submission to the United Nations stated that there is no justification or tolerance for torture. So the balancing, if indeed there is a need for it, has already been done. If we condone the outsourcing of torture and fail to provide a remedy for it, then we are no different than the suicide bombers, who also purport to act in furtherance of their foreign policy.
(I wish to disclose that it is my intention to join with other retired judges in filing an amici brief urging a reversal of the dismissal of Mr. Arar's case.)

The Constitution and a Trip to the Dentist

2006-12-09T10:52:00.000-08:00

This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant". The N.Y. Times (12/4/06) reported that during a recent trip to the dentist, Mr. Padilla's legs were shackled, his wrists cuffed and "noise-blocking headphones placed over his ears and blacked-out goggles over his eyes".
Mr. Padilla was originally arrested and publicly charged with plotting a dirty bomb attack in the United States. He was eventually charged with conspiracy and of providing material support to terrorists. The recent indictment was not in recognition of his constitutional rights as an American citizen, but rather a strategic decision by the administration to avoid what undoubtedly would have been an adverse judicial decision condemning the confinement and treatment of Mr. Padilla. The alleged dirty bomb plot is nowhere mentioned in the indictment against him. Mr. Padilla may be guilty of something, but the administration is guilty of far worse.
The administration has justified (and to large extent the public has accepted) wiretapping, these detentions, and possibly even torture, on the basis that these methods fight terrorism and confine terrorists. But what if they are not terrorists? Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeas corpus ("the best and only sufficient defense of personal freedom" Justice Chase, 1868), thus denying the means and opportunity for those detained to establish their innocence of any wrongdoing.
American soldiers are dying to win freedom for the people of Iraq, while we are losing freedom for the people of America.