The Daily Judge
© 2008 Burton Randall Hanson
      Archives - 01.23.2008 - 02.05.2008
"All the news that gives judges and lawyers fits."
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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

 Strib. urges longer terms for judges, no role for voters in their selection. As sure as night follows day, the Strib, the troubled local rag that reflexively, like Pavlov's Dog, supports judicial incumbents whenever they are challenged in elections and has joined the bar in its hysterical decrying of SCOTUS decisions upholding the free speech rights of judicial candidates, predictably endorsed the predictable recommendation of the Quie Commission that the state constitution be amended to extend the terms of judges and take away the role of voters in selecting judges. More (Star-Tribune 02.05.2008). Comment. The supporters of the amendment are using a bogeyman to try once again to get MN to abandon the hard-fought-for populist principle that the voters ought to have a role in judicial selection. The bogeyman is the threat that outside interest groups will spend big bucks to try influence contested elections, something that has happened in some states that allow for direct election of judges but hasn't happened here. The campaign is the local version of a well-financed, well-orchestrated nationwide drive by lawyers and politicians to get states to deprive voters of a role in judicial selection and give them instead a limited right every once in a blue moon to vote yes or no on whether a sitting judge's term should be extended. Unlike these self-styled "reformers," we trust the voters enough to think they should have a role in judicial selection. But that doesn't mean we think voters can't be fooled. We think there's a good chance the well-planned, well-financed campaign -- complete with its commissioned public opinion "survey" predictably supporting the proposed amendment -- may "succeed." We forecast that if the amendment is passed, the judiciary will come to rue the day because, as Pennsylvania judges will tell you, retention elections don't prevent big-buck interest groups from targeting judges or give judges more security in their positions. As Paul Carrington has noted, the retention election may be the "worst kind of election to conduct for judges who have been sitting for long enough to acquire a record that can be mischaracterized on major league outfield fences." Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61 Law & Contemp. Probs. 79 (1998). Not only does the Missouri Plan, which is the plan the "reformers" have idealized, not remove "politics" from judicial selection, the plan does not improve the quality of the judiciary. Consider this from Carrington:

Whether the Missouri Plan in any of its numerous variations has had significant effect on the technical competence of high court judges is at best uncertain. It seems unlikely that it materially elevated the moral and political judgment of those selected, given the uncertainty inherent in that standard of merit. The meager evidence indicates that merit-selection judges entered office with credentials substantially similar to those of elected judges and that partisan politics are not wholly suppressed, at least in Missouri. And it may be that elected judges are, as Lord Bryce believed them to be, more in touch with "the common thoughts of men" and possessed of a more "accurate appreciation of the requirements of the community" than merit-selected judges, qualities that may be especially important for judges sitting on the high courts.

Id. at 96. Sometimes, in law as in life, the proof is in the pudding. Minnesota, in fact, has one of the best trial court systems in the country, a generally outstanding court of appeals, and a historically better-than-average supreme court. We're clearly better, in my opinion, than Missouri, whose "plan" the bar leaders and politicians and Strib editors -- who have long been hostile to voter participation in judicial selection -- now want us to emulate. This is doubly ironic in that there is currently much dissatisfaction with the Missouri Plan in Missouri, with many thoughtful people there suggesting it ought to be abandoned and replaced with a plan not unlike ours. I offer no advice to the folks in Missouri. Each state is different. As Carrington notes, "However highest state court judges are selected, and whatever the terms of their employment, the outcome will reflect the condition of the social and political order from which they come." Id. at 126. What has worked and continues to work so well here, might not work well elsewhere. In short, a) we have a fine judiciary in MN; b) contested judicial elections in MN are rare but when they have occurred, they have been conducted fairly; c) the outside interest groups (with the exeption of lawyers, who invariably support incumbents, both with endorsements and cash contributions) have not spent money in an attempt to influence judicial elections; and d) the judicial free-speech decisions have not caused the sky to fall. J. Clark Kelso, in an article on judicial selection, has written: "The question...is not whether politics should ever enter into the decisions we make about who should sit and remain on our courts. Politics enters into the appointment of federal judges, and it enters into the appointment and election of state judges. The question is how much politics should be permitted to play a role in the appointment and election of judges." J. Clark Kelso, Judicial Elections: Practices and Trends (Institute for Legislative Practice - McGeorge School of Law University of the Pacific 1999). In actual practice, much more "politics" has entered into the selection of judges in MN via the appointment of judges by the governor, which is how most judges are selected, than through contested judicial elections, which are rare. And so-called "merit commissions," as the critics in Missouri have demonstrated, are anything but apolitical. "Politics" in judicial selection has been with us always. The questions always should be "Whose politics?" and how tranparent are the "politics" of the process. We think the limited role played by the public in judicial selection in MN in the rare instances in which contested elections occur is a healthy role and that the opportunity of voters to so participate constitutes a much-needed though rarely-used safety valve as well as a "check and balance" on the "politics" that always have played, always will play and perhaps always should play a role in the appointment of judges. The MN Plan has worked well for a very long time. It ain't broken and the proposal that we adopt the Missouri Plan, which ain't working very well in Missouri, is misguided. Further reading. a) Annals of judicial selection: stacking appointment commissions. b) Should MN take away judicial selection from the electorate? c) Those 'blue-ribbon commissions' and 'task forces.' d) Sorry, bar association, but.... e) The 'Citizens Committee on the Preservation of an Independent Judiciary. e) MN's 'establishment' still upset by S. Ct.'s judicial free speech decisions. f) Group-think on judicial selection. h) SCOTUS declines review of USCA's case on judicial campaigns. i) Speaking of the MN judicial system... j) MN's judicial 'power elite'. k) A debate on judicial campaigns. l) Those 'impartial' and 'nonpartisan' judicial selection commissions. m) Judicial independence and its pal, judicial accountability. n) The 'uncritical lovers' of the judiciary. o) Judicial campaigns and fresh ideas. p) Former GOP Gov. Quie urges MN voters to give up role in selecting judges. q) Guess who's joined the Quie team? r) My views on advocacy or hired-gun surveys. s) Professor Palmer on campaign contributions to judges. t) Attempt to get more diverse judiciary appointed is failing. u) More on the big money behind 'judicial reform.' v) The 'Missouri Plan,' is under fire in -- guess what? -- Missouri. w) BurtLaw's Law and Judicial Elections. Update. Among newer postings, see, a) MN's C.J. will skip election, retire early ('Judicial Keep Away'?). b) David again takes on Goliath over speech regulations. c) Some GOPers oppose Quie plan to deprive voters of right to select judges. d) .SCOMN #5, SCOMO #47 -- so let's adopt the Missouri Plan? e) Pawlenty fulfills Nostraburtus' 2005 prophecy. f) Pawlenty picks pal as new chief. g) Pal of judicial establishment questions motives of opponents of Quie's plan. h) Pawlenty says he's not sure re MO Plan; Quie says 'Tim' will 'come around.' i) WSJ on the 'why' of judicial elections -- with reference to Wisconsin. j) Voters weigh in, and Pakistan's jailed judges finally taste freedom. k) Law prof weighs in against plan to deprive voters of role in judge selection. l) 'Blue Ribbon Commissions' all over the place, saying the same thing. Hmmm. m) 'If you want to become a judge, go to law school with a senator.' n) Elected judges as a check on corruption and guarantor of judicial independence. o) Challenger judge beats SCOWIS justice 51%-49% in contested election. p) Dan Pero: 'Democracy works in Wisconsin.' q) It's a 'tragedy' if voters don't pick your guy? r) SCOWIS' Chief leads the way -- herein of experienced judges, judicial elections and judicial independence. s) The Return of the Ancient Mariner -- or is it the Minnesota Scariner? t) MN's elected justice who was elected governor. u) Law prof: judicial elections are imperfect but they're the best option. v) Justice O'Connor says Minnesota should emulate Arizona. w) Expert says Scotland's judicial merit selection board fails female applicants. x) Justice urges preemptive strike against weapons of incumbent destruction. y) A judge responds to O'Connor's 'hyperbole.' z) Latest on judicial term limits. aa) Dissatisfaction with 'merit selection' in Tennessee. bb) The 'Malaysia Plan' for selecting judges. cc) Are elected judges superior to appointed judges? dd) 'Merit' selection -- why stop at judges when silencing the people? ee) Sinclair Lewis on Campaign 2008 and other matters. ff) Don't criticize courts? gg) Justice O'Connor says Minnesota should emulate Arizona. hh) Expert says Scotland's judicial merit selection board fails female applicants. ii) Justice urges preemptive strike against weapons of incumbent destruction. jj) A judge responds to O'Connor's 'hyperbole.' kk) Dissatisfaction with 'merit selection' in Tennessee. ll) Should MN judiciary be involved in any way in setting legislators' pay? mm) Has Tennessee's unconstitutional 'merit selection' plan expired? nn) Judicial independence without accountability is 'unacceptable.' oo) Should judges pick new judges? pp) Judge says vetted judicial appointments are not on basis of merit alone. qq) Howie Carr's advice for those seeking judicial appointment. rr) On politicians and the 'playing of cards.' ss) When judges are picked in secret. tt) O'Connor says video game may help protect independence of courts. uu) Why Eric Magnuson, SCOMN's novice chief justice, should listen to SCOWIS's more experienced chief. vv) Annals of cronyism: MN's Pawlenty appoints another colleague to bench. ww) A coup d' judiciaire masquerading as 'reform'?



 Tony Blair's bro is named high court judge; Cherie keeps lecturing. "Bill Blair, QC, the brother of the former Prime Minister, has been made a High Court judge, it was announced yesterday...A well-known banking and commercial silk, Mr Blair has had a low profile outside the Bar, unlike his sister-in-law, Cherie Booth, QC. Ms Booth had been tipped for some time to be a High Court judge when her husband left office. But observers now think that the lure of the lecture circuit, coupled with an international legal practice, may be a more attractive option...." More (UK Times 02.05.2008). Comment. The story says Mr. Blair was "called" to the bar in 1972. I didn't know law was a "calling."

 Annals of courthouse perjury and false testimony. "A Wayne County Circuit judge has just unsealed records detailing an $8.4-million cover-up of text messages between Detroit Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty that expose lies they told [about their relationship during testimony] under oath last summer during a police whistleblower trial...." More (Detroit Free Press 02.05.2008). "The importance of telling the truth while under oath in court has been recently splashed across the front page. Putting aside any commentary on any particular case, this heightened public awareness is needed and welcome. That perjury is commonplace is the dirty little secret of modern litigation. Seasoned lawyers and judges more than suspect that many litigants file false affidavits, provide baseless testimony in sworn depositions, and lie under oath at trial...." Commentary by Michael Warren, Oakland County Circuit Judge (Detroit Free Press 02.05.2008). Comment. Example #1. A hypothetical lawyer's gf expresses shock and ends their relationship after he makes it clear that if called in her divorce/custody case and asked about their relationship, he'll have to follow his oath and tell the truth. The stuff of soap operas? Yes. Also the stuff of real life. Example #2. A hypothetical President, who is also a lawyer, is asked during a deposition, "Have you ever had sexual relations with     , as that term is defined in Deposition Exhibit 1, as modified by the Court." The President, knowing that he participated in consensual fellatio with Miss     , answers, "I have never had sexual relations with     ." More (Wikipedia 02.05.2008).

 Gag order keeps identity of judge convicted of harassment a secret. "A judge convicted of harassment was yesterday allowed to keep his identity a secret after a court ruled making it public could harm his family. The man, a part-time judge and distinguished barrister, cannot be named even though he was found guilty of a criminal offence...." More (This Is London 02.05.2008). Comment. We're certain -- aren't you? -- that the aim of the order is to protect kids, not the judge or the judiciary.

 FLA judge is recovering from malaria contracted in jungles of Guatemala. "After weeks of battling malaria that he contracted in the jungles of Guatemala, Circuit Judge J. Michael Hunter is home from the hospital and recovering. Hunter, 59, was presiding over the first-degree murder trial of Edward Romeo, who is accused of killing a teenage girl, when he became so ill that he had to be hospitalized. A mistrial was declared in that case and it has been rescheduled for March 10...." More (The Ledger 02.05.2008).

 Latest on 'judicial junkets.' "Federal judges who receive all-expense paid trips and lavish gifts from activist groups may soon find their ability to participate in such trips, labeled junkets by critics, called educational by defenders, limited. A proposed new amendment requires judges to pay their own way in many cases and sets a monetary limit on the amount of gifts judges can accept. Often called fact-finding missions or educational seminars, critics say many of these trips are little more than judicial junkets which often cause serious conflicts of interest...." More (ABC News 02.05.2008). Some earlier postings on judicial retreats and junkets. a) No belt-tightening for New Orleans judge traveling on public's money. b) Revelations about those junkets for federal judges. c) Judicial 'Educational' Junkets. d) Judges huddle in high style on taxpayers' money. e) Judicial junk-science junkets. f) The 'Wacky Courthouse' playground as alternative judicial retreat. g) Will Senator's response to junket exposé affect judicial junkets? h) Three Senators want to end judicial junkets. i) Judicial privileges. j) Some judges are more judicious in spending. k) Judges of troubled court head for the beach for 'education.' l) The annual convention of the state chief justices. m) Did MN judges use public funds for lessons on how to get re-elected? n) Annals of judicial junkets -- blowing $16,000, then quitting.

 Board urges discipline of judge for 'arrogant, discourteous, impatient' conduct in court. "The Florida Supreme Court should publicly reprimand Broward Circuit Court Judge Cheryl Alemán for taunting defense attorneys with her contempt powers and setting unreasonable time limits for attorneys to prepare important motions, the state agency that polices judicial conduct reported Monday. 'Judge Alemán's conduct...constituted conduct which was arrogant, discourteous, and impatient,' the Judicial Qualifications Commision concluded...." More (Sun-Sentinel 02.05.2008).

 Do we need a law barring parents from naming kids "Judge"? "Don't allow people to assume names like 'Chief Justice' and 'Prime Minister,' the Delhi High Court has said as they could be misused for cheating innocent people. The suggestion to the legislatures comes from the High Court in the wake of a case in which the judge was informed that an alleged property grabber whose name is 'Judge Chawla' has cheated various people...." More (The Hindu 02.05.2008). Comment. In 1960, when I was still in high school, the University of Minnesota "Golden Gophers" football team won the national championship. Among the stars of the team was a fullback named Judge Dickson, who went on to become an IBM attorney and executive. Judge was also a high jumper for the Gopher track team and gave a clinic for high school thinclads that I attended when I participated with team members in an indoor meet at the University's indoor fieldhouse. Coincidentally, I'm now reading The Language of Names, a fun and informative 1997 book by Justin Kaplan and Anne Bernays, reviewed here. Kaplan and Bernays make the point early on that certain names have "an inherent power, as well as the force of inspiring example, to shape [one's] character and destiny." They quote a Puritan minister, who said that "A good name is a thread tied about the finger, to make us mindful of the errand we came into the world to do for our Master." Did Judge Dickson's parents' choice of the name "Judge" suggest to him that he might have some errands to do for that Jealous Mistress, the Law? You'd have to ask him. But I do know I'd be against any law that flatly barred anyone from either naming his kid "Judge" or changing his name to "Judge." While I never named my daughter "Senator" and my son "Governor," I've long called them that, and I say, "To hell with anyone who says there's anything wrong with that." :-)


 Rushing to justice -- the badminton example. "Some line judges were guilty of making calls before the shuttlecock hit the floor at the recent Korean Open, Badminton World Federation (BWF) events manager Venu Mahalingam said on Sunday...." More (Sports.Reuters 02.03.2008). Comment. As the scandal surrounding the investigation and prosecution of the Duke University lacrosse players illustrates, it's not only in sports that it's important to withhold judgment until the appropriate time for passing judgment arrives.

 Federal judge's socializing with lawyers is under scrutiny. "At 11:30 a.m. on Oct. 6, 2006, Galveston attorney Tony Buzbee scored an important victory in a case involving 52 victims of the 2005 explosion at BP's Texas City refinery. Minutes after the hearing, Buzbee took the judge who made the ruling, U.S. District Judge Samuel B. Kent, to lunch, said a witness who asked not to be named for fear of reprisal. Buzbee and a lawyer for the judge didn't confirm Friday whether the lunch took place. But if it did, there was nothing improper about it, they said... Some in the Galveston legal community have questioned Kent's social relationships with some of the lawyers who frequently practiced in his court...." More (Galveston Daily News 02.03.2008).

 Judicial campaigns and fresh ideas. "'I don't want to name names,' [Akron attorney David P.] Drew[, primary candidate for position of common pleas court judge,] said, 'but there are certain judges who put in pretrial after pretrial after pretrial. You show up, and you sit there on call day for three hours just to say: 'Okay, we don't have our case resolved.' And the judge tells you to come back next week. One of the things I would do is have the first pretrial in maybe three weeks or a month (after arraignment)...so when you show up at that very first pretrial, you've had a month to think this over. You either work the case out, or you set it for trial....' Another idea that Drew says he would at least like to suggest is an evening court for noncriminal cases...." More (Akron Beacon-Journal 02.02.2008). Comment. I link to this story merely to illustrate the positive, fresh ideas that contested judicial elections can bring before the members of the voting public for consideration as the voters carry out their rights and responsibilities as holders of what Justice Frankfurter referred to as the "most important office in our democracy," that of Citizen. This is one of many reasons I hope MN voters don't take the bait and vote for any amendment to the state constitution depriving them of the solemn and important role they currently enjoy in judicial selection. The current plan has produced a much better judiciary than the judiciary in Missouri, which follows the Missouri Plan favored by the advocates of the amendment. Don't mess with a great populist system that ain't broke, I say. Further reading. BurtLaw's Law and Judicial Elections.

 Kenyan leader wants judges he appointed to settle election dispute. "Kenyan President Mwai Kibaki blamed opposition leaders on Friday for instigating the violence that has killed more than 850 people in the once-stable East African country...Kibaki also said the dispute over his re-election that provoked the violence must be settled through Kenya's courts -- something rejected by the opposition...The opposition says Kibaki rigged the vote and has appointed judges favourable to him...." More (Africa.Reuters 02.02.2008). Comment. My cousin's son is married to a bright woman from Kenya whom he met on a college semester-abroad program. Not just for their sake but for the sake of all the people in Kenya, we hope the dispute can be settled fairly and without any more bloodshed.

 When being bilingual is a judicial virtue but not a necessity. "Geoffrey Gaul, a former Crown prosecutor who in recent years was director of legal services for the criminal justice branch in Victoria, has been appointed a judge of the B.C. Supreme Court, federal Justice Minister Rob Nicholson announced Friday. Gaul is fluently bilingual, a welcome addition to the court to replace a number of bilingual judges who have recently retired or chosen to work part time. A person has the right to be tried in B.C. in either of Canada's official languages...." More (Vancover Sun 02.02.2008). Comment. It helps, too, if judges are "bilingual" or "multi-lingual" in other ways, as for example, when an appellate judge charged with writing opinions is able to write ones that use and apply the language of the law accurately and fairly while at the same time translating the decision simultaneously into language that ordinary people not trained in the law can understand. Justice Hugo Black said that he tried to write his opinions so that his uncle, who was reasonably intelligent but not a lawyer (sounds like he was talking about the "reasonable man" of legal lore), could understand them. My advice is: try write the opinion so that one's secretary (by definition a "reasonable person") can understand it if he or she cares enough to bother to try understand it. I've always been amazed at how many lawyers and judges, simply because they have law degrees and a bit of experience, assume they are smarter than their secretaries and better writers. Truth is, I've known secretaries who were smarter than the lawyers and judges for whom they worked -- and better writers. "They" often have a nonverbal way of letting you know what they think of the dictated prose they are typing. They'll express their mild contempt by a knowing roll of the eyes or a smirk. If you have a relationship based on mutual respect, they'll tell you flat out when they think your magnum opus ain't so good.


 Andy Kaufman is appointed to SCOMASS panel to study comment by judges. "Harvard Law School Professor Andrew Kaufman '54 has been appointed to an ad hoc committee that will advise the Supreme Judicial Court of Massachusetts on whether to adopt changes to ethical rules disfavoring public comment by judges...." More (Harvard Law School 01.31.2008). The issues are set forth thusly in an editorial in the Boston Globe (02.02.2008): "Massachusetts judges who find themselves under fire for controversial decisions refrain from public comment for fear of compromising the impartiality of the judiciary. That's how they are trained. But the public is often confused, and for good reason. Why would a well-reasoned explanation undermine judicial independence? Are some judges simply hiding behind an outmoded judicial code of conduct? The credibility of the courts depends on answers to such questions...." Comment. Kaufman is a revered former teacher of mine at Harvard Law featured in a 1996 essay I wrote titled Advice to a Recent Harvard Law Grad. Among his many publications, see, Cardozo (Harvard U. Press 1998), and "Judicial Ethics: The Less-Often Asked Questions," 64 Wash. L. Rev. 851, 862 (1989).

 SCOMISS suspends judge for 180 days without pay. "The Mississippi Supreme Court on Thursday suspended Leflore County Court Judge Solomon Osborne for 180 days without pay for judicial misconduct...[based on] his actions in response to the repossession of an automobile jointly owned by his wife and mother-in-law on Nov. 7, 2002, in downtown Greenwood. The [judicial conduct] commission [earlier determined] that Osborne failed to 'observe the high standards of conduct required of a judge by making a public spectacle on the streets of Greenwood while impeding the repossession of an automobile.'" The court's opinion indicates it was particularly troubled by the judge's "reference to his knowledge of the law [in] a blatant attempt to use his office either as an advantage with the law enforcement officers at the scene, or as an intimidation tactic." More (Biloxi Sun-Herald 02.02.2008).

 Former GOP Gov. Quie urges MN voters to give up role in selecting judges. "Minnesotans for Impartial Courts (MIC), an educational and advocacy organization chaired by former Governor Al Quie, today launched a statewide education and lobbying campaign urging the Minnesota Legislature to approve a constitutional amendment enacting retention elections for judges. The campaign will inform the public of emerging threats to the fairness and impartiality of Minnesota's judicial system, and advocate for a ballot question for voter consideration in the November 2008 election...." -- From a press release. (PRNewswire 01.31.2008). Comment. The MN judicial establishment/judicial power elite has wanted this for a long time. The attitude reflected in the Establishment's near-hysterical response to the judicial free-speech decisions of the U.S. Supreme Court and the Eighth Circuit was made manifest in the establishment of the so-called "Quie Commission" or "Citizens Commission" on how to address the "sky-is-falling crisis" created by the judicial free-speech decisions. We were critical of the commission from the outset. See, in sequence, a) MN's 'establishment' still upset by S. Ct.'s judicial free speech decisions; b) MN's judicial 'power elite'; c) The 'Citizens Commission'; d) A debate on judicial campaigns. Looking at the list of members on the commission's web site and the carefully-chosen, extremely limited list of "readings" suggested there only confirmed my initial views as to the likely outcome of the committee's "investigation." I didn't claim it was a "stacked" or "dummy" commission with a "pre-determined outcome" but I said that, if someone asked me to do it, I could predict pretty much what the commission's report would say. It turns out I was right. It also was clear to me then that the Establishment would conduct a well-orchestrated, well-financed drive to persuade the legislators to put their proposed constitutional amendment on the November 2008 ballot and persuade the voters that it's in their best interest to give up any role in selecting judges. One could have guessed that they or their well-financed partners in advocacy would commission a public opinion survey to help persuade the legislators that there is broad support for their proposal, and one could have guessed in advance the results of the survey, which were announced a few days ago. Guess what? The survey results support the proposed amendment. Go figure.

 Guess who's joined the Quie team? It is interesting and ironic that one of the public supporters of the proposal by former Gov. Quie is Justice Alan Page, the former pro football player whose elevation to the supreme court likely would not have occurred but/for the wisdom of the populists who insisted on giving the voters a role in selecting judges, as opposed to only being allowed to ratify selections made by politicians and members of the judicial and legal establishment and their proxies. If my memory is correct, Justice Page, who was an assistant attorney general, initially tried to get a judicial appointment from Governor Rudy Perpich but was unsuccessful. He then sought "appointment" by the voters by filing for a seat on the supreme court, and the voters selected him over a man named Johnson. Like the last justice before him who made it to the supreme court by election rather than appointment, the late C. Donald Peterson, Page turned out, to the surprise of some people, to be one of the best justices. Darn those silly voters who, I guess, can't be trusted any more! Anyhow, Page's turning on the system that he used to gain his seat reminds me of the story of the fellow who couldn't get hired by any big companies so, with help from the Small Business Administration, he formed his own small business, which later became a big business that then lobbied to shut off funding for the Small Business Administration. Sorry, Judge Page, but that's the way I see it. Further reading. If you're interested in why I believe the Establishment is wrong on this one, see, comments and numerous embedded links at Annals of judicial selection. If you're interested in what I think in general about so-called advocacy or hired-gun public opinion surveys commissioned for the purpose of influencing politicians, read on...

 My views on advocacy or hired-gun surveys. Without commenting on the fine business that was commissioned to conduct the survey that those commissioning it undoubtedly hoped would support a proposed amendment and without commenting on the survey itself, I offer some general views on a) so-called advocacy or hired-gun surveys and polls designed to influence legislation and b) use of statistics by politicians and others to influence legislation and public opinion: a) There's a big difference between using a news organization conduct a fair-and-objective poll to find out public opinion and an advocacy group or organization commissioning a poll from a hired-gun for the purpose of using the results to persuade the public and politicians that they should accept the advocacy group or organization's positions or proposals. So-called advocacy polls and hired-gun polls, and the techniques some professionals use who conduct these commissioned polls to push or lead the people questioned to a particular viewpoint or opinion, are discussed in an excellent essay by Russell D. Renka, professor of political science at Southeast Missouri State University titled The Good, the Bad, and the Ugly of Public Opinion Polls. Anyone evaluating the MN survey in question ought to read this essay before reaching any conclusions. (You'll have to do the evaluating yourself because the local press pretty much just accepts the press releases setting forth the results of these surveys at face value and publishes the results without ever critically examining the surveys or the methodology.) b) I took several courses in statistics, advanced statistics, and public opinion polling at the University of Minnesota. Since then I have often thought that our high schools and colleges could do a better job introducing students to the various ways in which politicians and advertisers and other seducers lie or mislead with statistics and use logical fallacies and loaded words to persuade people. Harvard College aims to ensure that its graduates possess that knowledge by requiring undergraduates to pass a statistical reasoning exam or take a course in the subject. If you missed out on all that in high school or college, a good place to acquaint yourself with the way these seducers misuse statistics is Darrell Huff's How to Lie With Statistics, a classic little paperback that has been in print since the 1954. A good place to acquaint yourself with logical fallacies is at the Index to the Logical Fallacies, which is a section at Fallacy Files. See, also, my posting of Thursday, 09.24.2004 titled "Love is a Fallacy" (scroll down) at my political opinion weblog, Sometimes Left But Always Right at BurtonHanson.Com.


 Billionaire Arab sheikh says Brit judges can be bribed. "A billionaire Arab sheikh thinks British judges can be bribed, according to an allegation made at a recent employment tribunal in Scotland. [The sheikh], whose family owns 24,000 acres of land in Perthshire, is alleged to have said to Chris Mulqueeney 'You're so patriotic. Hasn't anyone told you that the law of this great land works on money, not justice?' The sheikh allegedly said he'd stitch up Mulqueeney and then fix the judges: 'I've got enough money to buy any of them...all have their price in this country.'" -- From an interesting summary of the history of judicial bribery in the UK by Professor Gary Slapper, The Law Explored: bribing a judge - A billionaire Arab sheikh thinks British judges can be bribed, but he is wrong (UK Times 01.31.2008). Comment. We have no way of knowing whether the sheikh actually said what he's alleged to have said, and therefore haven't included his name.

Judge steps down from case after being quoted in article. "The judge presiding over the quadruple-murder trial in the case of the 2005 shooting at the Fulton County Courthouse removed himself from the case on Wednesday after an article in The New Yorker quoted him as saying of the defendant, Brian Nichols, that 'everyone in the world knows he did it.'" More (NYT 01.31.2008). Comment. The article in which the judge was quoted is Jeffrey Toobin, Annals of Law - Death In Georgia - The high price of trying to save an infamous killer's life (New Yorker - Issue dated 02.04.2008). In the context of the case the statement doesn't appear to show bias, but simply reflects the fact that the defense, which is raising Nichols' mental state as a defense, apparently will not contest that Nichols "did it." But the furor raised illustrates well why it's foolish for a judge to talk with reporters.  BurtLaw Rule-of-Thumb #490 states: A judge should never talk with the press about a pending case. I sorta like the approach of the first of the six Minnesota Chief Justices I worked for, Oscar R. Knutson, who had an aversion to talking with reporters about anything.

 Judge is under fire for AIDS ignorance. "An Ontario judge[, Jon-Jo Douglas,] is at the centre of a misconduct investigation after insisting a witness who is HIV-positive and has Hepatitis C don a mask while testifying in his courtroom...[The judge also] moved the case to a bigger courtroom in order to create more distance between the witness and the bench...'The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself,' Douglas insisted...." More (Toronto Star 01.30.2008).

 Do judges understand business? An interview with Chief Justice Beverley McLachlin about the Supreme Court of Canada's role in corporate law (Globe and Mail 01.30.2008).

 Latest on efforts to save historic courthouse. "Legislation was introduced in the Ohio House yesterday that, if approved, could provide a major financial boost to preservationists trying to save Seneca County's historic courthouse. The bipartisan bill, introduced by Reps. Peter Ujvagi (D., Toledo) and Randy Gardner (R., Bowling Green), would reserve five Ohio Historic Preservation Tax Credits for county-owned buildings like the 1884 courthouse in the heart of Tiffin's nationally recognized historic-business district...." More (Toledo Blade 01.30.2008). Comment. The Toledo Blade deserves some sort of community service award for its extensive reporting and editorializing in aid of the efforts of those seeking to save the historic courthouse despite the decision of a majority of the county board to demolish it.

 Chief urges judges not to become 'little tigers.' "The Chief Justice, Mrs. Justice Georgina T. Wood, yesterday appealed to judges not to turn themselves into 'little tigers' in the discharge of their duties. 'It will sadden our hearts to hear that you have turned yourselves into little tigers, indiscriminately devouring who you may, by the making of strange, unconstitutional or unjustifiable orders,' she said...[She] reminded the judges of the admonishment of King Jehopshaphat to judges in the second book of Chronicles Chapter 19: 6-7, to 'consider carefully what you do, because you are not judging for man but for the Lord, who is with you whenever you give a verdict. Now let the fear of the Lord be upon you. Judge carefully, for with the Lord there is no injustice or partiality or bribery.'" More (Modern Ghana 01.30.2008). Comment. Or, as I like to say when I'm in Rome, "constituitque iudices terrae in cunctis civitatibus Iuda munitis per singula loca et praecipiens iudicibus videte ait quid faciatis non enim hominis exercetis iudicium sed Domini et quodcumque iudicaveritis in vos redundabit sit timor Domini vobiscum et cum diligentia cuncta facite non est enim apud Dominum Deum nostrum iniquitas nec personarum acceptio nec cupido munerum."

 Judge is reprimanded for remarks about attorneys. "Washington County Circuit Judge W. Kennedy Boone III has been reprimanded by the Maryland Commission on Judicial Disabilities for referring to three women of color in the Public Defender's Office as 'the Supremes' and for suggesting that a defendant who wanted to replace his public defender be given an 'experienced male attorney.'" The judge admitted wrongdoing and expressed remorse. More (Hagerstown Morning Herald 01.30.2008).


 Liberty for sale to those who can afford it. "Wayne Spath is a bail bondsman, which means he is an insurance salesman, a social worker, a lightly regulated law enforcement agent, a real estate appraiser -- and a for-profit wing of the American justice system...Other countries almost universally reject and condemn Mr. Spath's trade, in which defendants who are presumed innocent but cannot make bail on their own pay an outsider a nonrefundable fee for their freedom...John Goldkamp, a professor of criminal justice at Temple University, said of the commercial bail bond system[,] 'It's really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.'" More (NYT 01.29.2008).

 When cell phones ring and judges get angry -- a caution. "When a mobile phone rings in his Court of Appeal, Lord Justice Jacob warns the culprit that this is why they are known as cell phones. The joke serves a useful deterrent function...But judges need to be judicial in the action they take in response to calls to which the answer is 'I'm in court.' The recent decision of the New York State Commission on Judicial Conduct to remove Judge Robert M. Restaino from office for jailing a large number of people in his courtroom when none would take responsibility for the interruption from a mobile phone is a ringing declaration of the need to punish an astonishing abuse of judicial power...." -- From an essay by Dabid Pannick, QC in the UK Times on 01.29.2008. Comment. We've long cautioned judges against (ab)use of the contempt power. The brief satisfaction they get from (ab)using it is often outweighed, and rightly so, by the damage to their careers as judges that results from their intemperance.

 When may judges respond to criticisms of their decisions? "After Daniel Tavares Jr. was arrested in the slayings of a newlywed couple in Washington state, [Judge Kathe Tuttman, the Massachusetts] judge who freed the convicted killer on personal recognizance in two prison guard assaults was excoriated in the press and even became a hot topic on the presidential campaign trail...Now the state's highest court has named an advisory committee to consider possible revisions to the judicial conduct code that restricts public comment by judges...." The aim is to clarify when comment or response is permitted and when it isn't. More (Boston Herald 01.29.2008).

 The cheaper electronic alternative to incarceration. "The more common use [of home-confinement technology] is for home detention after conviction, but use of pretrial electronic monitoring with electronic ankle bracelets and other devices is growing. 'The general public is chafing under paying taxes for prisons,' said Marc Renzema, a criminal justice professor at Kutztown University in Pennsylvania, who tracks the impact of monitoring and confinement techniques. The expense of prisons is the 'driver'...[A]s many as 200,000 Americans -- most of them already convicted, and some having served prison time -- are being monitored electronically." And the number is growing. More (Newsday 01.29.2008).


 Trust to be established for welfare of illegally-sacked judges, lawyers. "Former [Pakistani] Supreme Court (SC) judges announced on Monday that they would set up a welfare trust for the financial assistance of sacked judges and lawyers being affected in their ongoing movement for the restoration of sacked judges. They said that if the government blocked the trust's establishment, they would adopt an alternative course...." More (Daily Times - Pakistan 01.28.2008). Comment. Will Americans be permitted to contribute to the fund without risk of being red-flagged by our Homeland Security bureaucrats?

 Professor Palmer on campaign contributions to judges. "[Y]ou do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor [Vernon Valentine] Palmer [of Tulane Law School]. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person's case." -- From Adam Liptak's op/ed piece in the 01.29.2008 NYT. Comment. Or a candidate for judicial office can do as I did in 2000, when I ran unsuccessfully in the general election in MN for chief justice, and refuse all contributions and endorsements. I not only did that, I limited my expenditures to under $100. My opponent, the then sitting chief justice, a fine person, collected around $130,000 in contributions, according to a newspaper report I read, and scores of endorsements. She'd have won anyhow. So why do sitting judges facing un-moneyed opposition accept contributions and endorsements and big-time help from the big law firms, all of which raise ethical issues? I think it's fear of losing something they've got. It was nothing for me to lose in a lame quarter-hearted attempt for something I didn't have, but it's different when one might lose something he has. Maybe it'd be easier for judges to turn down the contributions if they knew they'd have to recuse in cases involving a contributor. The ruse in many states is that the candidates don't need to recuse because they don't know who their contributors are, since the contributions are made to an independent treasurer and ethics rules forbid candidates looking at the list of contributors, which is a public document. Do you believe that they don't find out? Even if they don't sneak peeks at the list, which strains the credulity of some people, they clearly know who's endorsing them (and therefore contributing as well).

 Judge seeking a full term hires former gang enforcer as campaign consultant. "A former Gangster Disciples enforcer is a paid consultant for a Cook County judge running for election -- a relationship that one of the judge's opponents calls disturbing. Michael B. Hyman was appointed in 2006 to fill a vacant judgeship and is running for election Feb. 5 against three opponents, including Brian Sexton, supervisor of the Cook County state's attorney's gang crimes unit...." More (Chicago Sun-Times 01.28.2008). Comment. A hypothetical judge gets free campaign help from an attorney, whose time in effect is paid for by the big firm for whom the attorney works, and the newspapers don't take note. Or a hypothetical judge owes her appointment to a member of a big firm getting a pal who is on the so-called "merit-based" screening commission to get the commission to extend the application deadline and to pick her as a finalist for a judicial appointment, and no one takes note. The big firm's lawyers regularly appear before the hypothetical judge, whereas, to my knowledge, the former gang enforcer won't be trying any cases before the judge if he wins. So which example bothers you more? Read on....

 Attempt to get more diverse judiciary appointed in UK is failing. "The government's attempt to reform the system for choosing judges to create a more diverse judiciary is failing to break the stranglehold of privately-educated white males over the high court bench. Although the new rules were designed to promote more women and ethnic minority candidates, all the judges appointed since they were introduced have been white male barristers and most were educated at independent schools...." More (UK Guardian 01.28.2008). Related. A scathing report argues that "The Government retains 'too much influence'...over the staff of the commission itself...; over its members...; and over appointments...And it is not just a question of Government. Judges, of course, must have an input, but the society 'remains concerned by the influence of the serving judiciary'. Five of the 15 JAC members must be judges, while at present three others happen to be current or former judges. Finally, for good measure, it notes that procedures remain skewed towards judicial influence: the practice of seeking references before deciding who should be interviewed rather than after interview has 'tended to give disproportionate weight to the views of the judges in the selection process.'" More (UK Times 01.31.2008). Comment. Those who are a part of the MN's judicial power elite want to ditch the populist MN Plan, in which ordinary voters have an ultimate direct voice in judicial selection. They want to replace it with the "Missouri Plan," which gives voters no voice in selection, only in retention of judges every once in a blue moon. The Missouri Plan is loved primarily by political science professors, bar association types, and sitting judges. To them, I guess, ordinary voters are just a bunch of "rubes" who are easily-swayed by hypothetical misleading TV ads (have you ever seen a TV ad in a judicial election in MN?) and therefore aren't fit to have a direct voice in judicial selection. But, curiously, the MN Plan, which was the brainchild of our great populist forebearers, has worked far better than the Missouri Plan. Indeed, Missouri, which uses the Missouri Plan, doesn't have nearly as good a judiciary as ours, which may be part of why many, many people in Missouri these days want to abandon it. Trust the people, I say. They're not the rubes the judicial power elite apparently believes they are. Further reading. a) Annals of judicial selection: stacking appointment commissions. b) Should MN take away judicial selection from the electorate? c) Those 'blue-ribbon commissions' and 'task forces.' d) Sorry, bar association, but.... e) The 'Citizens Committee on the Preservation of an Independent Judiciary. e) MN's 'establishment' still upset by S. Ct.'s judicial free speech decisions. f) Group-think on judicial selection. h) SCOTUS declines review of USCA's case on judicial campaigns. i) Speaking of the MN judicial system... j) MN's judicial 'power elite'. k) A debate on judicial campaigns. l) Those 'impartial' and 'nonpartisan' judicial selection commissions. m) Judicial independence and its pal, judicial accountability. n) The 'uncritical lovers' of the judiciary.

 Judges set to receive fatter pensions. "Because of the pay raise approved this month, retiring Superior Court judges can see their pensions boosted by $6,000 a year if they work one day this year. Under pension rules, judges of the supreme, superior or tax courts who are fully vested in the system can collect 75 percent of their final salary. So when Gov. Jon S. Corzine and the Legislature increased their pay 5 percent from $149,000 to $157,000 this month, they also hiked veteran judges' pensions from about $112,000 to $118,000...." More (Courier-Post 01.28.2008). Comment. If you read the pleas for salary increases by judges who claim their pay is paltry, they rarely will tell you, as part of the case they present, that they receive such whopping pensions. See, 'I could be making lots more if I were Michael Jordan' at BurtLaw's Law & Judicial Economics at BurtLaw's Law and Everything Else.

 Assest-shielding judge says she's willing to agree to suspension. "A judge who helped shield her husband's assets from creditors says she is willing to accept a three-month suspension without pay. The suspension, which was recommended by a disciplinary committee last month, is harsher than the public censure that Rockingham County Superior Court Judge Patricia Coffey and her lawyer once advocated, but it falls far short of Gov. John Lynch's more recent call for Coffey's resignation...." More (Boston Globe 01.26.2008).

 Racist slurs at judge in courthouse elevator. "Detectives in the police hate crimes unit are investigating the appearance of racist graffiti in two elevators near the chambers of Diana A. Johnson, a Brooklyn Surrogate's Court judge, the authorities said Saturday...." More (NYT 01.26.2008).


 Annals of courthouse cost overruns. "After many delays and cost overruns of nearly $100 million, the state's newest courthouse, the Bronx County Hall of Justice, is scheduled to open next week...Cases will be heard on Monday at the $421 million courthouse...Construction began in 2001 on the nine-story, 775,000-square-foot building that stretches for two blocks along 161st Street. It was to be completed in 2005 at a cost of $325 million...." More (NYT 01.25.2008). Comment. Have you ever heard of a new courthouse that came in under budget?

 Judge says he did nothing wrong in reselling choice football tickets. "As Illinois football fans scrambled for a chance to see their team in the Rose Bowl, a prominent Downstate booster with special access to seats used eBay and personal connections to resell at least 60 tickets at a profit. Judge Dan L. Flannell, a Circuit Court judge in Moultrie County and frequent online seller of Illini athletic tickets, said he funnels the profits back into the athletic department though the Sullivan Illini Quarterback Club. Flannell is president of the 200-member club, which donated $22,000 to the athletic department last year...." More (Chicago Tribune 01.25.2008). Comment. In MN a judge likely would be deemed in violation of "the Code" for being involved in fundraising. At least that's my understanding. Don't know about Illinois practice.

 SCOUT adopts tough journalist shield. "The Utah Supreme Court has adopted one of the strongest rules in the nation protecting reporters who refuse to identify confidential sources...A confidential source's name, or information that could lead to the source's identity must be disclosed only if it is necessary to prevent 'substantial injury or death,' according to the [new] rule...." More (Salt Lake Tribune 01.25.2008).

 Annals of judicial pollution. No, we're not talking about polluting the pages of the official leather-bound case reporters with overly-long or gassy opinions. We're talking about alleged real pollution by a judge: "The state has filed criminal charges against a Baltimore judge, accusing him of failing to clean up hundreds of tons of construction rubble dumped on his waterfront property in Anne Arundel County...District Judge Askew W. Gatewood Jr., who maintains a residence in Riviera Beach on the Patapsco River, faces 12 counts, including allegations of unlawfully filling a wetland, unlawful dumping, construction without a sediment control plan and water pollution. If convicted on all charges, he could be sentenced to seven years in prison and $75,000 in fines...." More (Baltimore Sun 01.24.2008). Comment. Isn't this the sort of alleged wrongdoing that could be handled civilly, perhaps with civil fines, rather than criminally?

 Judges saying 'Show us the money!' "Britain's most senior judge will have direct access to the Chancellor of the Exchequer to ask for money for the court system under an unprecedented deal announced today. Lord Phillips of Worth Matravers, the Lord Chief Justice, will have a direct line of communication to put judges' views to the Chancellor during the Whitehall spending battle...." More (UK Times 01.24.2008).

 Big to-do about SCOTX justices allegedly using campaign funds for personal travel. "Texas Supreme Court Justice Nathan Hecht spent nearly $10,000 from his campaign cash on in-state flights last year...He declined to provide documentation to show that his flights to the Dallas area were for legitimate political purposes...." Hecht denies wrongdoing. Two other justices, Paul Green and David Medina have also come under scrutiny for allegedly using campaign cash for personal travel. More (Houston Chronicle 01.24.2008).

 Judge who bit woman in sex shop has resigned. "Papers were sent to prosecutors in November over a 60-year-old judge of a summary court of Hirakata, Osaka Prefecture, on suspicion that he injured a female worker at a sex shop in October by biting her lips, sources said Tuesday. As the judge and the sex shop reached an out-of-court settlement, the Kobe District Public Prosecutors Office affirmed that the judge committed an indecent assault resulting in bodily injury, but decided not to prosecute him, they said...." The judge has resigned; he'll get to keep his pension. More (Yomiuri Shimbun - Japan 01.24.2008).


 In re Linda Greenhouse -- some differences of opinion.

a)  Introduction. Clark Hoyt, the so-called "Public Editor" (or, if you want, "ombudsman" or "one-person press council") at the NYT, posted a piece on Sunday, 01.20.2008, titled Public and Private Lives, Intersecting, purporting to be an objective inquiry into attacks by right-wing apologists for President Bush's policies and others on the fairness of Linda Greenhouse's reporting of Supreme Court decisions, given that, inter alia, she wrote an article in 2006 about the multiple briefs filed supporting an appeal by a "detainee" at Guantanamo Bay when one of them, not mentioned, was filed by her husband, Eugene Fidell, on behalf of the National Institute of Military Justice and the D.C. Bar. Hoyt suggested more transparency on the NYT's part about such relationships by reporters.

b)  Enter Bazelon and Lithwick. Rising to Greenhouse's defense were, among others, two colleagues on the SCOTUS-watching beat, Emily Bazelon and Dahlia Lithwick, in a piece in Slate titled Lay Off Linda -- Why doesn't the New York Times stand up for Linda Greenhouse? They argue, in part, that Greenhouse is no more biased than any of the "other Pulitzer Prize-winning writers gracing the pages of the Times," that the reason she's become a "scratching post for right-wing kitty cats" is that she's become "the voice on the court that matters most in the national press," which is "a measure of the quality of her reporting." They argue that the "right-wing kitty cats" play "Gotcha Greenhouse" (my phrase) whenever they have an excuse and "when they don't, they make one up." They ask rhetorically, "[W]hy should she have to read sober explications of these made-up grievances in her own paper?" and conclude, "The Times needs to quit fueling the Greenhouse gases that seem to burst into flame with more and more frequency. Lots of heat. No light." Comment. Bazelon/Lithwick, whose terrific opinion-filled reports on SCOTUS matters are always worth reading, point out, somewhat beside the point, that Hoyt's advocacy of a standard of requiring greater disclosure of reporters' family members' interests "is not the one that the Supreme Court has chosen to adopt for itself, by the way. Justice Antonin Scalia's son and Justice Clarence Thomas' wife each had professional interests in the outcome of Bush v. Gore." That's beside the point, because the fact that the Justices aren't always as transparent about relationships as we might like them to be doesn't mean that the NYT should be similarly opaque.

c)  Another viewpoint. Responding to criticisms of their op/ed piece, Bazelon subsequently posted a piece titled Hatchet Man, and Lithwick then posted one titled Sober Second Thoughts. Walter Dellinger's subsequent piece, Journalism and Objectivity, is worth reading also. He starts with this great observation: "A former academic colleague of mine once said a very wise thing about 'bias': 'The worst kind of politics is the politics that doesn't know it's a politics.'" He questions the whole notion that there is such a thing as an unbiased reporter, adding, "The goal of fair reporting does not depend upon reporters having no 'views' -- it depends upon a professionalism that gets it right." He says Greenhouse's critics have failed to show that her biases, whatever they are, have affected her reporting, that is, her professionalism. Comment. What Dellinger's "former academic colleague" said applies as well to judges as to journalists. This is why I regularly make the point that we should not let judges get away with claiming judges are "not political." If we let them get away with that, then we prevent ourselves from giving judges, the judicial process and judicial decisions the scrutiny needed to ensure public accountability, that often-ignored part of the phrase "judicial independence and accountability." But I don't think reporters are any less "political" than judges and I don't think they ought to get so defensive when someone like Hoyt suggests ways reporters, whose independence we all value, can be sufficiently transparent and accountable.

d)  BurtLaw on covering SCOTUS. Here's a piece I posted on 06.08.2006 that bears on the flap over Greenhouse's reporting:

 Harvard Law gushes over Greenhouse. Linda Greenhouse, a Harvard grad, addressed Harvard Law School's Class Day crowd in the great James Barr Ames Courtroom in Austin Hall on the topic, "10 Things Iíve Learned While Covering the Supreme Court." The Harvard Crimson, where Greenhouse worked as a student editor, covered the speech. It quotes Harvard Law School Dean Elena Kagan as gushing [my word] that in her opinion Greenhouse is "the greatest court reporter [and] greatest legal journalist there has ever been and ever will be," adding that "I donít read the opinions [of the Court] anymore," apparently relying instead on Greenhouse's great report reports of the opinions. More (Harvard Crimson 06.08.2006). Comment. i) I think Dahlia Lithwick, who covers the Court for Slate, is better than Greenhouse. For my taste, Greenhouse, while very good, is a tad too reverential, too deferential in her coverage of the Court. There is a price reporters sometimes pay in order to get close enough to cover people in power. If they don't get close, they don't get off-the-record interviews, don't get scoops, miss out on insiders' gossip, etc. Greenhouse's reporting is always interesting but one ought never abandon one's Holmesian skepticism in reading stuff she writes or stuff any reporter writes. When I read some of her pieces, I ask: Is she in some way serving as a mouthpiece for the Court in this story? Is she in some way also trying to ingratiate herself with the Court? I merely ask, I don't imply.... ii) What a shocking thing for Harvard Law's Dean to say -- that she relies on Greenhouse's reports and doesn't read the opinions. Erwin Griswold, depicted right, giving me my diploma back on June 12, 1967 (the 150th anniversary of Harvard Law and of Thoreau's birth) never would have said such a thing.

In other words, my complaint about Greenhouse is not that her reporting is biased because of her political views or because she's married to Eugene Fidell but that she's become, as Bazelon and Lithwick put it, "the voice on the court that matters most in the national press." I doubt that they meant it to sound the way it sounds but it may be the most "right on" thing they said. Greenhouse's reporting is, I think, fair -- but, for my taste, too reverential. Drink her stuff only if you follow it with a bracing chaser of the irreverent Lithwick.

e)  Further thoughts on spousal bias. The sort of "problem" of a possible conflict of interest being raised by a reporter's or judge's marital or romantic relationship is arising more than it used to because of the increasing number of two-career couples. In cases of a potential conflict because of a relationship, it is my sense that the big practical worry usually is (or should be) not that the judge or reporter will favor her relative or friend, but that she will not just "bend over backwards" to be fair to the other side but will wind up actually being unfair to her relative or friend in the process of doing so. I don't know that the ethics folks can or should establish hard-and-fast rules to prevent or deal-with conflicts like this, but my general suggestion would be, "When in doubt, disclose." A good starting point in such a situation would be the writings of Andrew L. Kaufman, a revered former teacher of mine at Harvard Law, who wrote a seminal law review article on the subject a number of years ago. See, Andrew L. Kaufman, "Judicial Ethics: The Less-Often Asked Questions," 64 Wash. L. Rev. 851, 862 (1989). I corresponded with him about the topic at that time. Undoubtedly has developed his thoughts on the subject more fully since then.


 Judge holds jury foreman in contempt for murder trial blog. "After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial. The blog, or Web log, also criticized the judge's staff and complained that the 19-day trial was taking too long...." More (Ventura County Star 01.23.2008). Comment. The juror said he didn't think blogging about the case during trial violated the judge's admonition against discussing the case with anyone.

 Judge wins court challenge to mandatory retirement. "A part-time judge, forced to retire after reaching the age of 65, has won an unprecedented age discrimination claim against the lord chancellor, Jack Straw, and could get up to £200,000 compensation if the Ministry of Justice does not let him return to sit as recorder...." More (Guardian UK 01.23.2008). Comment. It's just a matter of time before the public demands our state court systems abandon the discriminatory laws and policies mandating retirement of judges at a certain age. See, my influential 2000 essay, Mandatory Retirement of Judges.

 Judge hearing drug case is assassinated. "A Mexican judge who was hearing a case against an alleged high-level drug trafficker was killed yesterday in the northern state of Nuevo Leon...." More (Bloomberg 01.23.2008).

 Police nab Rwandan 'judge' bribing witness. "Police of the Runda sector nabbed [a] judge bribing...a witness in his father's murder case, with free booze and offering him 20 000 Rwandan Francs (37 USD)... The accused is an Inyangamugayo, a judge elected by the population according to their integrity. Since the creation of the gacaca courts, almost 50 000 'Inyangamugayo' judges have been relieved of their functions...." The "judge" denies the allegation of bribery, but reportedly admits offering the booze "as a gesture of request for forgiveness," not a request for false testimony. More (Hirondelle via AllAfrica 01.22.2008).








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   U. Mich. L. Library's Alito links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Samuel A. Alito, Jr. They are categorized and are arranged in reverse chronological order within each category.

   U. Mich. L. Library's Roberts links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by John Glover Roberts, Jr.  They are categorized and are arranged in reverse chronological order within each category.

   Slate's list of Judge Roberts resources. Slate has created a John Roberts Roundup, a regularly-updated page of links to some of the better web postings relating to Judge Roberts. Click here.

   U. Mich. L. Library's Miers links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Harriet Ellan Miers.  They are categorized and are arranged in reverse chronological order within each category.

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