The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 07.03.2005 - 07.13.2005
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there.

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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.

    Judge Lefkow returns to bench. "The only clue that U.S. District Judge Joan Lefkow was back on the bench Tuesday was the notice posted on the door to her courtroom. It expressed Lefkow's gratitude for the outpouring of sympathy over the February murders of her husband and mother. Then it said simply: 'In court proceedings, Judge Lefkow respectfully requests that no reference be made to the matter.'" More (Chicago Tribune 07.13.2005).

    Is this how judicial bribery is done? "Below is a timeline of events prosecutors have chronicled during a judicial bribery and fraud trial in U.S. District Court. The defendants are Biloxi attorney Paul Minor, state Supreme Court Justice Oliver Diaz Jr., former Circuit Judge John Whitfield and former Chancery Judge Wes Teel...." It's worth clicking on the link & reading. It's basically the Government's summation in the bribery trial of three Mississippi judges & a prominent attorney. More (Sun Herald 07.13.2005).

    Son of High Court judge charged with rape. "The son of a Cape High Court judge has appeared in the Wynberg Sexual Offences Court in connection with multiple rape and indecent assault charges arising from what his attorney said had been an orgy. '(It was) an orgy of note,' said attorney Reuben Liddell, who represented the three accused, two men and a woman...." More (Cape Times 07.13.2005). Comment. Without reference specifically to this case, since the young man is presumed innocent, I have often speculated that one should not be surprised when a son of a judge gets caught in criminal wrongdoing. Most every kid rebels in some way & what better way for a "sonofajudge" to get the old man's or old lady's attention than to break the law in a dramatic way & get caught?

    Do 'bad laws breed judicial activism'? From a letter to the Arizona Republic published 07.13.2005 (more): "What is behind judicial activism? First, legislative bodies often write bad law - or they weasel-word a bill in order to get support for its passage. Sometimes, out of ignorance and haste, they overlook critical holes in legislation...." Comment. And bad Congressmen write bad laws. And lazy uninformed voters elect bad Congressmen. And newspapers & TV newspeople generally don't do a very good job covering campaigns. The main way a candidate reaches voters is by spending money on expensive ads. One has to in effect corrupt oneself to get the money to run those ads. These ads are inevitably bad. Campaign ads make bad candidates worse & make bad voters elect bad people who pass bad laws that require judges to apply.

    BurtLaw's classmate/dormmate attacks Congress. "The chief judge of the US District Court in Boston lashed out at Congress yesterday, saying it has put a 'chokehold' on his court, stripping it of the authority to rule on deportation cases. In a scathing, 107-page ruling, Judge William G. Young said he was prepared to halt the deportation of a Nigerian national, Frank Enwonwu, who contends the government promised he could stay in the United States after he was arrested on drug charges in 1986. But Young said Congress, in a 'virtually unprecedented' attack on judicial independence, took that decision out of his hands in May when it passed the REAL ID Act, a law that makes it harder for immigrants to gain amnesty...." More (Boston Globe 07.13.2005). Comment. Bill & I were members of the same class at Harvard Law School in the mid-1960's. He lived down the hall from me on the fourth floor of Story Hall first year. Having served in the army before attending law school, he's a tad older than I. From an earlier decision, one might conclude he has a different version of the role of a judge than I have. Back in early 2003, in sentencing the so-called "shoe bomber" to three life terms plus 80 years, he angrily rebutted the bomber's claim he is "a warrior." Bill as Judge said, ''You're no warrior. I've known warriors. You are a terrorist, and we do not negotiate with terrorists. We hunt them down one by one and bring them to justice.'' More (NBCNCO.Com). At the time, I thought, "Hmm. We hunt them down?" Since when, I asked, are judges involved in hunting down terrorists and 'bringing them to justice'? It's the job of law enforcement officers and members of the military to hunt them down and of prosecutors to bring them to the bar of justice. A judge's job is to keep his cool, to be an impartial referee, to 'strike the balance true,' not to be an active part of either a war on crime or a war on terror. But Bill knows that and, as we're all prone to do at times, "lost his cool" for a moment. In any case, Bill's remarks brought him more than fifteen minutes' of fame -- and, I speculated at the time, perhaps might get the ear of those around the President who recommend people for appointment to the U.S. Circuit Court of Appeals. But, as Bill's recent attack on Congress demonstrates, Bill is not likely to appear on any of Pres. Bush's short lists for the U.S. Supreme Court. Besides, Bill's too old. It used to be that age & experience were qualifiers in appointments to the U.S. Supreme Court. Now they are disqualifiers. Nixon figured it out (as others after him have) that it makes political sense to appoint young (not "old Young's") conservative judges, in their 40's, to the Court so that, with the lifetime tenure, the President's influence on the Court may continue for many more years. In theory, that works. But some of those once-young judges have changed as they've matured within the protected confines of life tenure & judicial independence. Thus, the surprise factor: "Oh, dear, what if he gets wiser as he grows older?"

    GOP Rep's interference with individual court cases called into question. "In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term. Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded 'a prompt response' as to what steps Flaum would take 'to rectify the panel's actions' in a case...Sensenbrenner...cited a 1992 ruling as precedent for his argument that the longer prison term should have been imposed...Flaum...sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong." More (Chicago Tribune 07.10.2005). Comment. Sensenbrenner, who has done similar things before, apparently believes he's entitled to do this as part of his committee's role in "judicial oversight." But legal experts quoted in the article believe, as I do, that his conduct violates House ethics rules as well as court rules prohibiting ex parte contact with judges regarding actual pending cases or decisions that have not been reduced to final judgment. In early May Sensenbrenner said that his committee was considering the creation of an 'office of inspector general for the federal judiciary' to watch over the courts...." More NYTimes 05.10.2005) What we really need is a better-informed, more-responsible electorate to "watch over" the Congress (and to elect independent-thinking, intelligent representatives rather than the typical representatives, programmed robots who always seem to follow the party line). Isn't there any lawyer who is a GOP representative who has the guts and the honor to stand up publicly to Sensenbrenner? We often hear it said that "Judges mustn't forget they're not legislators.'" More (Atlanta Journal Constitution 07.10.2005). We need to tell legislators like Sensenbrenner and some governors and the President that they mustn't forget they're not judges.

    Agitated lawyers boycott courts. "The Madras High Court Advocates' Association today decided to boycott the court indefinitely in protest against amendments to the Cr. PC even as Chief Justice Markandey Katju, and Union Home Minister Shivraj Patil, appealed to the agitating lawyers to call off their boycott...Advocates have been boycotting the High Court since July 6, while lawyers have been staying away from the Madurai Bench of the High Court since July 7 and work in sub-ordinate courts has been paralysed since July 4...About 50 members of the Madurai Bar Association today burnt copies of the amendments in front of the court." More (The Hindu 07.11.2005).

    20-day court strike ends in Nigeria. "Activities resume today at High Courts and Magistrate Courts all over Nigeria, following suspension of a twenty-day nationwide strike by members of Judiciary Staff Association of Nigeria (JUSAN)...Among the issues which led to the strike are alleged continued indifference of the National Judicial Council (JNC), National Judicial Institute (NJI) and other stakeholders to the plight of non-judicial officers, particularly non-lawyer personnel of Judiciary nationwide, and staff members welfare. More (All Africa 07.11.2005).

    When county board & local judge clash over courthouse space. "The dispute between the Russell County (GA) Commission and Probate Judge Al Howard didn't go away Monday. Two weeks ago, the commission voted to move Howard out of his courthouse chambers into a smaller office." According to the Columbus Ledger-Enquirer, Judge Howard contends the board's action is politically-motivated but the board says it is motivated by concerns about security. "The deadline for Howard to move was last Friday. He did not move and Monday said he would not relocate until 'compensatory space' could be found." According to the article, the judge and the board have been "at odds" since 2003 over various matters set forth in interesting detail in the article. The dispute has deteriorated to name-calling, with one of those who recommended the move, Fred Copeland, saying the judge is "'acting childish.,'" adding, "'I respect the probate judge's office, but I do not respect Al Howard.'" Sixteen lawyers opposed the move in a letter, but Copeland says, "'Look at who's kin to who of the 16.'" More (Columbia Ledger-Enquirer 07.12.2005).

    Mediators come to small-claims court. "The 18,000 people who file small claims cases annually in New Hampshire sometimes wait a year to get before a judge. Then, it really gets difficult. Even when they win, half those people have to return to court to get the money owed them. A new law signed by Gov. John Lynch yesterday is meant to change that. Beginning in September, mediators will be available in district courts to help parties mutually negotiate their small claims. Mediation is predicted to move cases along more quickly by eliminating the number who need a judge's attention. But more importantly, supporters said, debts are more often paid when the case is mediated rather than decided by a judge." More (Concord Monitor 07.12.2005).

    First report on Ohio mayor's courts gives Chief ammo in drive to end them. Ohio is one of two states with so-called "mayor's courts." The other is Louisiana. In 2000 Ohio's C.J., Thomas Moyer, proposed that the legislature eliminate them. "He...argued it doesn't look good for the chief executive responsible for a city or village's finances to also act as, or appoint, the judge who imposes fines feeding that government's coffers." The legislature didn't agree, but "[a]s of Jan. 1, 2004, mayor's courts were required by law for the first time to report case-filing and resolution data to the state's high court, one of the General Assembly's reactions to a speed-trap operation in the now-dissolved village of New Rome near Columbus. Municipal and common pleas courts have been required to supply such data for years." That data, now available, shows that "[m]ore than a third of cases pending in Ohio's mayor's courts at the end of 2004 were more than six months old" & this has "prompt[ed]...Moyer to suggest the courts may not be the quick justice they purport to be....." To read the detailed story and view the statistics, click here (Toledo Blade 07.12.2005).

    Israel courts going paperless. "The Courts Administration and Ness Technologies yesterday unveiled the prototype of a computer system designed to make all court-related documentation paperless. The new system will be introduced at three courts in November, and if all goes well, it will be integrated gradually in all of the country's courts starting in early 2006, with the Supreme Court going online in mid-2006...." More (Haaretz 07.12.2005).

    Federal judges' pay has increased by $100,000 in three years! "Judges' pay has increased by up to $100,000 in the past three years under a generous deal that delivered another rise on July 1. The Remuneration Tribunal has confirmed federal judges' pay has risen for the seventh time in just three years, boosting the salary of High Court Chief Justice Murray Gleeson by $15,000 to $382,110. Retired judges will also secure a pension boost, because more than 200 retired federal judges have qualified for a life pension of 60per cent of a judge's salary...." More (The Australian 07.11.2005). Comment. I suppose it was deceptive of me not to mention 'til now that we're talking Aussie judges & Aussie dollars. I figured you might appreciate something to get your blood flowing on a Monday. :-)

    S. Ct. Justice is Captain of Royal & Ancient Golf Club of St. Andrews. "Justice Thomas Gault is the first New Zealander to become Captain of the Royal and Ancient Golf Club of St Andrews. When he heard he had been appointed, his reaction was 'one of very considerable surprise,' the Supreme Court judge says. Past club captains selected Justice Gault and presented their nomination to a general meeting of the club. As a result, Justice Gault will be captain for the year 2005-06. He has played the game since he was a child, during his time at Wellington College and then at Victoria University. In fact, it was while studying for his LLB that 'I probably played my best golf,' he says. He won the NZ Universities' Championship and was awarded blues by both Victoria University and New Zealand University...." More ( Comment. I thought this was a good time to post this, with the British Open, being held at St. Andrews this year, starting Thursday. Lawyers & judges have always played a prominent role in golf. The father of my ex-wife, the late John M. Kitchen, former head of the Indianapolis Bar, with whom I played many sober but friendly rounds of golf on the lovely Harbor Point Golf Course overlooking Little Traverse Bay of Lake Michigan in Harbor Springs, Michigan, used to say that one could tell a lot about a man's character & temperament by the way he responded to the ups & downs of golf. (It's perhaps too bad we don't know how each of the people on President Bush's short list play the game.) Mr. K. also loved to point out that Bobby Jones, the great gentleman of golf who designed Augusta National, where The Masters is played, was a Harvard grad & a first-class lawyer. The nicest thing Mr. K. ever said to me was that he admired the way I conducted myself in the face of misfortune on the course. The nicest thing I ever did for him (& for his descendants) was take a series of sequence still shots of his swing and film a 3-minute Super-8mm movie of him demonstrating for his descendants the proper grip, proper form, etc. Mr. K. carried a copy of The Rules of Golf with him on the course the way Justice Hugo Black carried a copy of the U.S. Constitution with him in his suitcoat pocket (see, infra). Those beloved Rules, he was proud to remind me, were the product of golfers trained in the law.

    Hugo Black's pocket copy of the Constitution. From the account of Elizabeth Black, secretary & then second wife of Justice Black, of the famous CBS-TV interview of Justice Black by Eric Sevareid & Martin Agronsky:

At one point Martin asked Hugo why he always carried "that little book of the Constitution" in his pocket. "I would think you would know the Constitution by heart at this time." The question lighted up Hugo's face with another of those smiles that endeared him to just about everyone. Hugo had a little confession to make, and he didn't mind making it before millions: "Because I don't know it by heart. I can't -- my memory is not that good. When I say something about it, I want to quote it precisely And so I usually carry it in my pocket."

Time and time again during the interview, Hugo reached for his Constitution. He read from it, folded it in half, tossed it on the table. So dog-eared and tattered was the little book that it made a dramatic sight lying there on the desk. The cameras zeroed in on it; it appeared to be about two inches thick.

Hugo loved that little book of the Constitution and the camera knew it. So did the country.

Elizabeth Black, Hugo Black: A Memorial Portrait, Supreme Court Historical Society 1982 Yearbook.

    Dept. of judicial secretaries. "...Senior U.S. District Judge James Lawrence King in Miami has removed himself from all his criminal cases as federal and state agents have targeted his longtime secretary and her husband in a drug and money laundering probe. Federal prosecutors in West Palm Beach believe that King's secretary, Sandra Diaz, passed copies of court documents to her husband, Jorge Diaz, shortly before his April 29 arrest in Key Largo on federal marijuana conspiracy charges...." More (Daily Business Review/Law.Com/Yahoo 07.11.2005).

    Profile of controversial juvenile judge. "In juvenile court there are no juries, and Judge Patricia Clark, who presides in King County, sometimes hands down sentences no more onerous than directing wayward teens to write about their hopes for the future. This motherly guidance does little to dispel the notion held by some parents and prosecutors that juvenile court is the Romper Room of criminal justice, a kiddy-style mimicry of the real thing -- though many of the young people appearing before Clark are fully capable of adult-size crimes...." More (Seattle Post-Intelligencer 07.11.2005). Comment. One might complain about a juvenile judge who is sometimes lenient, but when one's own kid gets in trouble with the law, one may see things differently. Those who advocate "zero tolerance" blah-blah-blah lack a good memory (they were kids themselves once, weren't they?) & lack imagination (is it inconceivable that their kids might get caught doing something wrong?). See, BurtLaw's Law & Kids & BurtLaw's Crime & Punishment.

    Texas courthouse mural at Dinosaur Valley Inn & Suites. "In an effort to memorialize the Somervell County Courthouse, the Best Western Dinosaur Valley Inn and Suites has commissioned famed western artist Stylle Read to paint a mural of the courthouse commemorating its legacy inside of the boutique hotel. Mr. Read has an extensive background of paintings and murals ranging from set design, exteriors, interiors and advertising art. The mural is expected to begin later this year....[The courthouse] was constructed in 1894 and was designated a Texas Historical Landmark in 1963. Additionally it earned a listing in the National Register of Historical places in 1979...[I]n 1986 the courthouse received a complete restoration...Texas has the premier collection of county courthouses in the nation, both in terms of numbers and architectural diversity. Currently there are more than 200 courthouses built before 1940 that are still standing today. These historical landmarks represent both the past and the present and are a source of pride for the communities they represent...." More (PRWeb.Com 07.11.2005).

    Betting on judges. "The money, literally, is moving to Atty. Gen. Alberto Gonzales as the choice to succeed Justice Sandra Day O'Connor on the U.S. Supreme Court, according to, the giant online betting operation. Oddsmakers put Gonzales in the No. 1 spot, with 6-5 odds when betting began Tuesday, but by Sunday gamblers liked him even more, making him the 5-8 favorite...." More (Chicago Tribune 07.11.2005). Comment. We wouldn't bet money on something like this, but then we don't bet money on anything. Gambling on love in the moonlight -- and losing -- is another matter. More.

    Annals of battles for control of the judiciary -- Saudi Arabia. "Articles Mr Mizeini has written over the past two years condemning the slide into extremism at his own university and within the Saudi education system provoked the wrath of religious conservatives...Mr Mizeini [became] the pawn in a behind the scenes power struggle between the liberal-leaning Crown Prince Abdullah, the effective head of state, and the conservative religious authorities who control the country's [Sharia courts]...." And then things got interesting. 75 lashes? 400?! More (BBC News 07.11.2005). Comment. Memo to editor of NYT, pls. pass this on to Judy Miller. She'll get a laugh out of it. (I'm assuming the judge rejected the prosecutor's request to jail her for protecting her source.)

    Countermove on Court's condemnation decision. "Not so fast and not here. That's the message the Legislature is poised to send to the U.S. Supreme Court - and our own Supreme Judicial Court - as soon as this week on its recent ruling allowing private property to be taken by eminent domain for economic development purposes. House Minority Leader Brad Jones has already signed up some 50 of his colleagues, including plenty of Democrats, to back a resolution denouncing the decision. He'll quickly follow up with legislation and a constitutional amendment strengthening property owners' rights...." More (Boston Herald 07.11.2005). Related stories. See, Souter 'set to lose home under law he brought in'? & follow the links there for earlier stories.

    MN's Senator, Norm Coleman, for U.S. Supreme Court? We just started an unfounded rumor (when we typed the headline in bold) that President Bush may pick Vice-President Dick Cheney's favorite Senator, MN's Norm Coleman, as a compromise choice to replace Justice O'Connor. We have it on no authority that Cheney told Bush, "Norm's been all over the map, ideologically. He's such a political chameleon that no one can say for certain where he'd stand on anything if he had lifetime tenure & didn't have to say what he thought would win him votes." But, according to no anonymous source, Cheney believes that the party can always keep a "Justice Coleman" in check by periodically dangling in front of him, at weekend hunting trips, etc., the possibility of being drafted from the Court by Cheney to be the party's nominee for President or Vice-President, say, in 2008 or 2012. We did not try to reach Senator Coleman or anyone else for a response to anything in this totally concocted story.

    On judicial swimsuits & the Rules of Judicial Conduct. "Undoubtedly, a judge's wearing nothing but a swimsuit in the courtroom would be deemed to not only demean the judiciary but cause disrespect for the judiciary and interfere with the administration of justice. This is so despite the fact that some of the greatest artistic representations depict Justice as a scantily-clad (and blind) woman and Law as a scantily-clad (and all-seeing?) man...." More at BurtLaw's Law & Swimsuits.

    Should U.S. Supreme Court Justices be elected? "Richard Davis, a political science professor at Brigham Young University...[i]n his new book, Electing Justice: Fixing the Supreme Court Nomination Process (Oxford)...describes today's confirmation battles as 'an untenable situation -- a reality that looks only vaguely familiar to the formal structure designed for it more than 200 years ago and a process that no longer reflects reality. We have now created a process that is to a great extent driven by public opinion...' Today, as Davis writes in the book,''Selecting justices for the Supreme Court is an election without voters.'... Davis wants Supreme Court justices...elected by popular vote...." More (Boston Globe 07.10.2005). In an earlier entry, on 06.06, we pointed out that Davis is merely playing the Devil's advocate, as any good law prof does. Thus, Davis has proposed for discussion a number of possible Constitutional amendments that would involve public elections of some or all U.S. Supreme Court Justices, including one in which "The president [w]ould pick several nominees who would be screened by the Senate and put on the ballot, with the top vote-getter ascending to the bench" and one in which "The public [w]ould be asked to vote on a nominee if he or she gets fewer than 60 votes in the Senate, which could encourage the president to seek consensus in his nominations...." More (Salt Lake City Tribune 06.06.2005). Comment. Free people with open minds in a free country with institutions that can stand creative criticism ought not shy away from discussing matters like this. I'm not against the idea of electing state judges. My only strongly-held view in that regard is that what works in one state might not work as well in another. For example, I generally like Minnesota's system of electing judges. See, BurtLaw's Law & Judicial Elections. The mere fact that it's harder for a President to have his way when we have divided government, which I generally like, does not mean that our system of selecting U.S. Supreme Court Justices or other federal judges is broken. The Framers intended that the President not necessarily get his way in such matters. Conflict & disagreement in our political system are not bad things. They are the lifeblood of our great democracy.

    George Will likes J. Harvie Wilkinson III. "Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail -- a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric...Wilkinson's conservative sensibility makes him averse to what G.K. Chesterton called 'the clean and well-lit prison of one idea.' And Wilkinson's conservative temperament makes him comfortable with the subtle task of balancing judicial modesty with the judicial responsibility for refereeing, by constitutional principles, the government's behavior...." More (Washington Post 07.10.2005). And see, Cass R. Sunstein, Role Reversal and the High Court (Washington Post 07.10.2005).

    Souter 'set to lose home under law he brought in'? A few days ago we posted a link to the story about the private developer who, irked (as we were) with the Supreme Court's (& Justice Souter's) recent decision in the big eminent domain case, is proposing that Justice Souter's beloved home in N.H. be condemned by the municipality & sold to the developer to build a commercial hotel. We thought it unlikely that the municipality would do that, but the misleading headline in this story in the 07.10 U.K. Telegraph gives the impression it's likely that Souter's home will be condemned. While that might be poetic justice of a sort, we don't wish it on Justice Souter. I was interviewed by a representative of the ABA's "committee" on judicial nominations when Souter, a fellow Harvard Law alumnus, was nominated & I was happy to refer the interviewer to a person I know who is a good friend of Souter's. I liked Souter then & still like him. But I didn't like the decision in the eminent domain case.

    Do you know what a 'natural court' is? According to Linda Greenhouse (Under the Microscope Longer Than Most, N.Y. Times 07.10.2005), "The period during which a court's membership remains unchanged is known to political scientists as a natural court. It is useful as a kind of controlled experiment that permits study of the institution itself without the distraction of judges coming and going." Greenhouse suggests that during the last 11 years, when the membership of the Court didn't change, "To the extent that there was basic change [in the law's course], it was to the left rather than the right: a firmer foundation for affirmative action, a constitutional framework for gay rights." Greenhouse ends her piece by quoting Justice White: "Every time a new justice comes to the Supreme Court, it's a different court. It's a new instrument." As anyone who has worked at or closely observed a multi-member appellate court knows, this is true. Indeed, a sort of "courtship dance" often takes place, with the "old" judges "dancing" in various ways to win the attention of (and perhaps ultimately influence over) the newcomer, and vice-versa. Each judge may change in the process. Another metaphor that partly describes what may take place is that the "new" court goes on a "shakedown cruise" for a period of time. A "shakedown cruise" is "A cruise undertaken to test a ship's systems, mechanical and human, sometimes made with passengers traveling at a discount." (Travel Industry Dictionary.) And there's the slightly different metaphor of the "honeymoon." Whereas technically a "honeymoon" period traditionally lasted only a month & a "shakedown cruise" the length of the cruise, the "period of adjustment" for the members of a "new" court lasts at least a year, in my opinion, &, as Greenhouse's piece suggests, there is never a "the Court" because a multi-member appellate court is always, in many different ways, a work in progress.

    Headline of editorial: 'Judges mustn't forget they're not legislators.' More (Atlanta Journal Constitution 07.10.2005). Comment. Legislators and governors and Presidents mustn't forget they're not judges.

    Judge sanctioned for hearing son-in-law's case. "The Supreme Court recently slapped a Regional Trial Court-Dumaguete City judge [Ibarra Jaculbe] with P11,000 fine for hearing a case involving his son-in-law, in violation of a provision of the Code of Judicial Conduct...." More (The Celbu Philippines Freeman 07.10.2005).

    Profile of a judge who went to jail over refusing to enforce a bad law. The Texas law, enacted in 1929, requires a trial judge to grant a "legislative continuance" of a trial to any lawyer in the legislature until after the legislative session in Austin is completed. Ten years ago County Court-at-Law Judge Bonnie Reed spent time in jail for contemptuous refusal to follow what many have called "'a bad law that allow[s] criminals to ensure a trial delay by hiring a legislator as their attorney.'" According to this piece in today's San Antonio Express-News, "Legislative continuances remain controversial. This year, in a civil case involving a woman suing Ford Motor Co. and other parties over a tire failure that allegedly caused an accident, leaving her a quadriplegic, District Judge Bobby Flores of McAllen denied a continuance for Ford's lawyer, Rep. Jim Solis, D-Harlingen. Texas Lawyer magazine hailed Flores' ruling in a May 2 opinion piece...An appellate court, however, in a May 27 opinion...reversed Flores' decision..."

    Judge charged with reprising Michael Douglas' role in 'Traffic'? In Steven Soderbergh's Traffic (2001), "Michael Douglas, as Robert Wakefield, an Ohio judge tapped by the White House as the nation's new drug czar...holds all the usual opinions, mouths all the standard platitudes, shares all the naive assumptions..." Then his honor-student daughter gets involved in the drug subculture & Judge Dad goes bananas. More at RogerEbert.Com. "[Judge Benjamin] Pfaff...went searching for his runaway teenage daughter the evening of Dec. 8, 2003 [after she 'went missing']. He said he and the girl's mother eventually located the teen [on Elkhart, Indiana's north side] after knocking on many doors in the area. At one C.R. 9 home, however, the judge did more than simply ask questions. According to a police report and various court records, Pfaff made threatening statements and pointed a gun at a then-18-year-old man." Now Judge Pfaff finds himself facing a misconduct hearing over two counts of misconduct, one based on the alleged confrontation, the other on allegations he misrepresented the events to police & prosecutors. He denies wrongdoing. More (The Truth 07.10.2005). Comment. He might be better off with a jury of his citizen "peers" rather than the panel of his judicial peers. Ordinary jurors might be more likely to accept the notion that a man is father first, judge second, & to think he was just doin' what any good dad would do to rescue his daughter.

    Latest on judicial bribery trial. "After a month of testimony, prosecutors are wrapping up what is referred to as their 'case in chief' against four defendants on trial [in federal court in Mississippi] for judicial bribery and fraud. Defense attorneys expect to spend at least as long presenting witnesses to counteract the government's evidence against Biloxi attorney Paul Minor, state Supreme Court Justice Oliver Diaz Jr., former Circuit Court Judge John Whitfield and former Chancery Court Judge Wes Teel...." More (Sun Herald 07.10.2005).

    Dept. of mixed metaphors. "The confirmation process: Do we row or wade?
By Pat Shea - As we enter the summer of 2005, the heat of the U.S. Supreme Court confirmation process in Washington will enthrall us all, as a flame attracts moths. Since this nation's founding, the flows of the Potomac consistently have filled miles of newsprint and, more recently, prolonged periods of air time. For this next round, we need to define what is at stake and what boundary lines civility should require...." More (Salt Lake City Tribune 07.09.2005).

    Andrew Marvell on judges & poets. Poem by Andrew Marvell that Henry David Thoreau quoted in a talk titled After the Death of John Brown:

     When the sword glitters o'er the judge's head,
     And fear has coward churchmen silenced,
     Then is the poet's time; 'tis then he draws,
     And single fights forsaken virtue's cause;
     He, when the wheel of empire whirleth back,
     And though the world's disjointed axle crack,
     Sings still of ancient rights and better times,
     Seeks suffering good, arraigns successful crimes.

The complete poem, from which this is an excerpt, is Tom May's Death, discussed & analyzed, along with other Marvell poems, by Cleanth Brooks & Robert Penn Warren here. My favorite -- nearly everybody's favorite -- Marvell poem is To His Coy Mistress, which I long ago memorized & which I may perhaps still be able to recite dramatically even if I someday forget most else.

    More on grandmas' nude-calendar fundraiser for save-the-courthouse protest. "The other 85-year-old of the group, Frances Hensley is the shy one. Even after her individual photo shoot with photographer Mary Ellen Bertram in the morning, by mid-afternoon she was still uncomfortable with the thought of being naked in front of the camera -- even with the strategically-placed miniature courthouse buildings in front of her. In the back of her mind she isn’t so sure this is a great idea...." More (Muncie Star-Press 07.09.2005). But do the miniature courthouses conceal total nudity or something less than total nudity? A report at The Indy Channel suggests that the pictures will be "tasteful" & "will portray an illusion of nudity." Earlier links. Comment. While we realize that, like magic, most studio photography, including pornographic photography, involves creating an "illusion," we hope the old women aren't just "teasing" us.

    Judge jails fellow because cell phone rang in court. "Even Sergio Cortez Herrera admits the popular Mexican rock song [Maná's catchy 1992 tune 'Oye mi amor,' roughly translated as 'Listen, my love,'] that blasted out of his cell phone last week was awfully loud. Loud enough, it turned out, to land him a night's stay at the Chatham County jail...Orange-Chatham Chief District Court Judge Joe Buckner held the Siler City resident in direct criminal contempt of court, initially handing him a 10-day jail sentence, which he later reduced to one night...." More (Raleigh News-Observer 07.09.2005). Comment. Without commenting directly on this specific case, because I don't know all the facts, I will say that, personally, I've never admired the hold-them-in-contempt "style of judging," if you can call it that. More often than not, in my opinion, a judge who holds someone in direct contempt for something like a spectator's cell phone going off risks creating an image of courts that leads ordinary people to legitimately view courts with contempt. Although not directed at this specific type of situation, I like what Prof. Steve Lubet of Northwestern University Law School said about a federal judge down in Galveston, Texas named Samuel Kent who received favorable publicity for obnoxious behavior toward attorneys appearing in his courtroom: "There is a name for that sort of behavior, and it isn't adjudication. It's bullying. It smacks of nothing so much as the biggest kid on the playground picking on the smaller kids who are too browbeaten to fight back." More (Jewish World Review 08.16.2001). I don't think "bully behavior" by anyone, including a judge, has any place in or out of court. But when practiced by a judge in court, I believe it constitutes an abuse of power.

    'Judicial cronyism' in south Texas? "With all of the talk of so-called judicial activism in national politics, we will coin a new term -- 'judicial cronyism' -- in looking at South Texas judicial politics. Jurists who practice judicial cronyism seemingly cast a friendly net to other judges, like-minded politicians and lawyers who have been their longtime boosters and associates. In doing so, these types of judges appear quite willing to ignore or misapply well-established and defined legal precedents...." More (Brownsville Herald 07.09.2005).

    'Judicial cronyism' Venezuela-style? "A U.S.-based human rights group and the State Department accused a Venezuelan judge on Friday of helping President Hugo Chavez to persecute his political foes for conspiracy...." More (S. F. Chronicle 07.08.2005).

    'Judges give no apologies for getting pay increases.' That's the actual headline for a story about a pay raise for Pennsylvania judges in today's Times Leader. Some judges wouldn't talk about the raise but, according to the story, one said that "people don’t realize the significance of a judge’s job. 'I just think they don’t understand what we do and the importance of the job. And they feel that no one is worth that much money.'"

    How Justice Blackmun started out as Burger & became Brennan. The July-August issue of Harvard Magazine, one of the best alumni magazines in America, arrived in the mail a few days ago & is now online. One of the articles worth reading is another review (we've linked to several already) of Linda Greenhouse's judicial biography of Justice Blackmun, Becoming Justice Blackmun. This review is by the award-winning legal historian, one of my outstanding classmates (heck, we're all outstanding) at Harvard Law School, Morton J. Horwitz. This excerpt from his review does a nice job documenting the transformation of Justice Blackmun from being "Burger's twin" to being the most liberal judge on the Court:

During his first five terms on the Court (1970-75), he voted with Burger in 87.5 percent of closely divided cases, while he agreed with the Court’s leading liberal, William Brennan, in only 13 percent of the cases. In the next five-year period, he had shifted to 54.5 percent agreement with Brennan’s views and only 45.5 percent with Burger’s. During the final five years that Burger and Blackmun sat together, they agreed only 32.4 percent of the time, while Blackmun voted with Brennan in 70.6 percent of closely divided cases. "After Brennan and Marshall retired," Greenhouse notes, "Harry Blackmun was, by wide consensus, the most liberal member of the Supreme Court."

More (Horwitz, "Changed by the Court," Harvard Magazine July-August 2005).

    Annals of judicial conduct proceedings: love conquers all? "In a surprising 180-degree turn, Lynnann Frydrych, the complainant in the disciplinary proceedings against attorney and York County Probate Judge Robert Nadeau, now says she wants to retract her claims...." Frydrych had a change of heart after Nadeau, who hadn't spoken with her since she filed the charges, called her at the end of June. "Nadeau said that through some research, he and his attorney, Stephen Wade, discovered that even though Frydrych was a witness against Nadeau, there was no reason the two couldn’t communicate. The conversation went so well and so many misunderstandings were [resolved] that Frydrych said she’d retract her testimony to the commission. Within days, Nadeau moved out of his house and initiated proceedings to obtain a divorce from his wife of 20-plus years. Frydrych returned to Maine to spend time with Nadeau over the Fourth of July holiday weekend; she had moved to Pittsburgh in early 2004...." More (York County Coast Star 07.07.2005). Comment. This is a pretty funny story. I urge you to click the link & read it. There's a big picture of the judge with his arm around Frydrych, who's wearing a fetching sun dress. There sometimes is, it seems, a fine line between removal and/or disbarment, on the one hand, and holding hands & smiling the smiles of true love, on the other hand.

    The appointments game's rules. "Citizens need to understand the basic ground rules of the appointments game. (By calling appointments a 'game,' we seek not to trivialize the principals and principles involved, but rather to highlight the range of permissible moves and countermoves that give the appointments process a coherent structure.) These ground rules--deduced from the Constitution's letter and spirit, and from the institutional practices that have emerged over the years--define what is fair play and what is out of bounds...." An instructive piece by Vikram David Amar & Akhil Reed Amar. More (FindLaw's Writ 07.08.2005).

    Kansas House rejects amending constitution on judicial power. The behind-the-scenes story is interesting. More (Lawrence Journal World 07.08.2005). Comment. Once again we see the value of divided government.

    Thought while scanning the headlines. One headline read: "Justices leave Americans confused over commandments." My thought: "Fellow Americans. You should not be confused. The Ten Commandments are still valid. You are not only free to follow them, you should do so. Have a nice day."

    Interesting essay comparing U.S. courts & Ghana courts. "When we were in Ghana, we used to hear, 'Asem no appae,' which means the judge has taken bribes from both sides...." More (Ghana Web 07.07.2005).

    David E. Kelley's new reality show shows real judges in action. "'The Law Firm,' which premieres July 29 at 9 p.m. on NBC..., has 12 real lawyers working in teams trying real cases in front of real judges and juries that render legally binding decisions. [Prominent defense attorney, Roy] Black monitors their performance and each week eliminates those who fall short. The winner walks away with a $250,000 judgment. 'The Law Firm' is Kelley's first series in a genre that he has publicly derided...." More (N.Y. Daily News 07.08.2005).

    Anonymous e-mail costs judge $15,000, two week suspension. "A Broward judge [Robert F. Diaz] will be suspended without pay for two weeks and pay a $15,000 fine for sending an anonymous e-mail to another judge in which he accused him of discriminating against Hispanic defendants...." More (Miami Herald 07.08.2005).

    Louis Menand on appointing justices. "The fickleness, contrariness, and outright perfidy of Supreme Court Justices have exasperated the politicians who appointed them almost since the first days of the Republic. Presidents pledge to put men and women on the bench who will vote to sustain the constitutionality of the policies they support -- generally equating this with qualities like 'independence' and 'adherence to the meaning of the Constitution' -- and then watch their appointees, once unhitched from the political leash, stray all over the barnyard, sometimes ending up as heroes of the opposition...." Decisions, Decisions (The New Yorker, issue of 07.11.2005 and 07.18.2005, posted 07.07.2005).

    The judge's annual courthouse Christmas party. "Prosecutors cannot use a toxicology report as evidence against [Pascal Marullo, son of Orleans Parish Criminal Court Judge Frank Marullo,] charged with vehicular negligent injury in an accident that was ultimately fatal, an appeal court has ruled...According to a police report on the Dec. 5 accident, Marullo allegedly admitted drinking about seven beers at his father's annual courthouse Christmas party...." The state will ask the Louisiana Supreme Court to reverse the suppression order. More (Tuscaloosa News 07.07.2005). Comment. R. 2.02, subd. 3(1)(b), BurtLaw's Practical Rules of Judicial Conduct: "A judge ought not serve liquor at his annual courthouse Christmas party." This is a specific subrule of the more general rule stated in subd. 3(1)(a): "A judge ought not serve liquor in the courthouse."

    Department of the utter coincidence of judicially independent great minds thinking very much alike:

a) "Independence is not for the personal benefit of the judges but rather for the protection of the people, whose rights only an independent judge can preserve." An Independent Judiciary - Report of the ABA Commission on Separation of Powers and Judicial Independence (1997).

b) "The principle of judicial independence is not proclaimed in order to benefit the judges, it is proclaimed in order to guarantee a fair and impartial hearing and an unswerving obedience to the rule of law." Australia's Chief Justice, Sir Gerard Brennan, quoted in J. Fife-Yeomans and B. Lane, ‘Brennan backs judges against MPs,’ The Australian, 15 April 1997, p. 3, quoted in turn by Katharine Betts, Judicial Activism.

c) "The independence of the judicial arm of government is not a benefit won by judges on some ancient industrial battlefield, and now jealously guarded as a perquisite of office. It is a constitutional principle with a sound practical rationale. Justice must be, and be seen to be, administered with impartiality." Hon. Justice Murray Gleeson, Chief Justice of NSW, "Who do judges think they are?" 10.28.1998.

d) "Judicial independence is not for the benefit of the judges but for those using the courts." Wisconsin Chief Justice Shirley Abrahamson, State of the Judiciary, 10.25.2000.

e) "We must preserve judicial impartiality and independence because these are principles essential to our system of government, which has been so carefully crafted.  Not for the sake of judges, but for the sake of ensuring fairness." Speech by MN Supreme Court Justice Alan Page, National Press Club (11.15.2001).

f) "The independence of the judiciary is of course an important issue for the judges, but that is not the primary reason why it matters. It matters because it matters to us all. A free and fair society needs an independent judiciary, for the protection it offers us all." Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, Speech in London (12.03.2003).

g) "The Constitution protects judicial independence not to benefit judges, but to promote the rule of law..." Chief Justice William Rehnquist, Annual Year-End Report on Federal Judiciary for 2004 (01.01.2005).

h) "Judicial independence exists for the benefit of the people, not for the personal benefit of judges or the lawyers who appear before them." ABA President Robert Grey, Remarks at California Courts of Appeal 100th Anniversary Celebration Dinner, 04.10.2005.

i) "Judicial independence is not a privilege for judges. Nor is it the plaything of the government or the ruling party. It belongs to the public." John Kane-Berman, C.E. of the South African Institute of Race Relations, "Alarming Lack of Concern Over Threat to Judges," (AllAfrica.Com 05.05.2005), as excerpted here in BurtLaw's The Daily Judge on 05.05.2005.

j) "After all, judicial independence is not for the benefit of judges; it is for the benefit of the people. And it belongs to the people." Chief Justice Kathleen Blatz, State of Minnesota Judiciary Address, 06.16.2005 (Minnesota Lawyer 06.27.2005), quoted in opinion piece in Minneapolis Star-Tribune (07.07.2006) by Hennepin County Attorney Amy Klobuchar, candidate for nomination of MN DFL party to run in 2006 election to succeed U.S. Senator Mark Dayton.

    Judicial independence & accountability. While we're on the subject of judicial independence, we like to point out that its nonidentical but interdependent twin is judicial accountability. To put it another way, like "Love & Marriage," you can't have one without the other. Here's a link to my 2000 essay on judicial independence & accountability. BTW, I wrote it myself.

    Are Massachusetts courts really this bad? "When it comes to administering justice, to running the courts, to deciding who is guilty of a crime and who is innocent, however, Massachusetts is a disgrace. The cowboys in the western Sunbelt states and the crackers and rednecks in the former slave states that once made up the Confederacy have a higher regard for the administration of justice than we do....Legislative meddling and micromanagement of the courts is so pervasive that it constitutes a special sort of corruption that debases the very idea of an independent judiciary. That perversion of John Adams’s intent is at the heart of House Speaker Salvatore DiMasi’s recent power play, which increases the legislature’s power to appoint cronies to court-system jobs and severely limits the ability of the court system to manage its own courthouses...." From Courts of Shame (editorial in Boston Phoenix 07.08.2005 - 07.14.2005).

    Maine's claim to Supreme Court fame. Two fine fellows connected with Maine were Supreme Court Justices, according to a piece titled Maine's Legal Eagles (Maine Today 07.07.2005), one being the relative unknown, Nathan Clifford, the other being the well-known Melville Fuller, who became Chief Justice. "With dignified good looks, long white hair and a full mustache, he was something of a Mark Twain look-alike. Twain is said to have been stopped on the street once by someone seeking the chief justice's autograph. The humorist obliged by writing, 'It is delicious to be full, but it is heavenly to be Fuller.'" In 1953 Justice Felix Frankfurter wrote a delightful "talk" titled Chief Justices I Have Known (reprinted in The Supreme Court Historical Society Yearbook 1980), from which the following currently-relevant lines are extracted:

Fuller came to a Court which wondered what this little man was going to do. There were titans, giants on the bench. They were powerful men, both in experience and in force of conviction, and powerful in physique, as it happened. For myself, I think all Justices of the Supreme Court should be strong, big, powerful-looking men! Certainly those whom he met there, who welcomed him courteously but not hopefully, were as I've described them. Believe it or not, there's ambition even in the breasts of men who sit on the Supreme Court of the United States. There's a good deal to be said for the proposal of Mr. Justice Roberts that no man should ever be appointed to the Chief Justiceship from the Court....

*     *     *

They looked upon him, as I've indicated, with doubt, suspicion, but he soon conquered them. He conquered them and they soon felt that the man who presided over them justly presided over them. He had gentle firmness. He had great courtesy. He had charm. He had lubricating humor. Justice Holmes was fond of telling a story. In his early days, he said, "I'm afraid my temper was a little short." And there could hardly be two men more different than Mr. Justice Holmes who wielded a rapier, and Mr. Justice Harlan, who wielded a battle-axe. A rapier and a battle-axe locked in combat are likely to beget difficulties for innocent bystanders. Justice Harlan, who was oratorical while Justice Holmes was pithy, said something that seemed not ultimate wisdom to Holmes. Justice Holmes said he then did something that isn't done in the conference room of the Supreme Court. Each man speaks in order and there are no interruptions, no cut-ins or cuts-in, whichever the plural is –because if you had that you would soon have a Donnybrook Fair instead of an orderly proceeding. But Holmes said, "I did lose my temper at something that Harlan said and sharply remarked, 'That won't wash. That won't wash.' "Tempers flared and something might have happened. But when Holmes said, "That won't wash," the silvery-haired, gentle, small, Chief Justice said, "Well, I'm scrubbing away. I'm scrubbing away."

He presided with great gentle firmness. You couldn't but catch his own mood of courtesy. Counselors too sometimes lose their tempers, or, in the heat of argument, say things, and there was a subduing effect about Fuller. Soon these men, who looked at him out of the corner of their eyes, felt that they were in the presence of a Chief whom they could greatly respect. I have the authority of Mr. Justice Holmes, who sat under four chief justices in Massachusetts before he came down to Washington, and under three in Washington, that there never was a better presiding officer, or rather, more important in some ways, a better moderator inside the council chamber, than this quiet gentleman from Illinois.

    Big corporations finance the war on Bush's judges? That's the headline not in The Onion but in The National Review. More (National Review 07.06.2005). Comment. It must be tough being a Republican President & having all the big corporations agin' ya.

    Special counsel appointed to investigate juvenile judge. "The state has appointed a special counsel to help the Massachusetts Commission on Judicial Conduct investigate allegations of misconduct by a former top Plymouth County judge, a rare move taken only when the commission believes complaints warrant an especially in-depth probe. The commission tapped...a well-known Boston trial investigate complaints about Juvenile Court Judge Robert F. Murray by his court clerk and a court security officer, according to the clerk and her lawyer. Murray allegedly made inappropriate phone calls to the clerk and gave an unwanted kiss to the officer." More (Boston Globe 07.07.2005).

    Chief Justice outwits critics. "Since her election, [Georgia Chief Justice Leah Ward] Sears...has gone out of her way to promote her impartiality. She did it last week by irritating both sides. Republican Gov. Sonny Perdue, a critic, didn't attend her inauguration, claiming prior engagements. Neither did some of Atlanta's civil rights promoters -- normally among her biggest allies. The reason: Sears had a guest who is considered a nemesis to many civil rights proponents -- Supreme Court Justice Clarence Thomas, a longtime friend...." More (Chicago Sun-Times 07.07.2005).

    Judge Judy endorsed to replace O'Connor. "Over the July 4 weekend, I went to a party -- the usual gaggle of politically obsessed Beltway types -- where I knew I would be asked who I thought should succeed Sandra Day O'Connor on the Supreme Court. Without hesitation -- and to more than a few dumbfounded looks -- I boldly gave my answer: Judge Judy...." Richard Cohen, The Judge for Me (Washington Post 07.07.2005).

    Department of judicial law clerk sycophancy? "In the coming days, many will no doubt tout Sandra Day O'Connor as the pioneering first female Supreme Court justice. Most will point to her importance as the pivotal middle justice on a divided court. And some will accuse her of squandering her influence...In all this, the pundits may well be right in the description, but many will be wrong in ascribing merit or blame. Justice O'Connor is, quite simply, a great judge...." Viet Dinh, Judging O'Connor: What it was like to clerk for justice (Houston Chronicle 07.06.2005). Comment. It's probably not sycophancy. Most law clerks wind up thinking "their" judge is better than the other judges & a lot (most likely Viet Dinh) sincerely attribute "greatness" to their judge.

    Strip club judge convicted of alcohol-related reckless driving. "A federal bankruptcy judge (Glen Clark) arrested in January for drunken driving has been fined 882 dollars and ordered to perform 48 hours of community service...Clark was stopped by the highway patrol on January 16th when, after drinking at the strip club Southern Exposure, he failed to stop for a red light in Murray." More (KSL News 07.07.2005).

    Advocacy group seeks resignation of MN judge for low bail in sex case. "Throw Away The Key, a national advocacy group that works on behalf of past and future victims of crime, today proposed five concrete steps that can help America move towards cost-effective, sensible solutions to protect innocent children and adults from violent crime at the hands of known predators. The steps [include]: ...Minnesota District Judge Thomas Schroeder, who set bail at just $15,000 for [convicted sex offender suspected in Shasta Groene murder,]  Joseph Edward Duncan III in April, should resign...." Press Release (U.S. Newswire 07.07.2005). Comment. Too many people are too ready to blame a trial judge in specific or judges in general every time someone released on bail commits a crime. The judge in question in this case may or may not have made a mistake given the information provided to him by the prosecutor at the time bail was set. We'll see. But if every judge who's made a mistake were to resign, we'd have courthouses without judges. Update. What we know so far (Fargo Forum 07.07.2005).

    May a witness in court swear on any old book? "If we allow Allah-fearing Muslims to swear on a Quran, should we then allow each swearee to choose the holy text upon which they’ll place their hand? Will there be menus on the judges benches and small bookshelves in the courtrooms to hold the tomes? Will a pagan be allowed to swear on a rock or piece of tree bark? And what of atheists or people of indeterminable spirituality? Will they be allowed to bring whatever book they want? How long before someone pledges to tell the truth in the name of Eric Clapton?" The author, Brian Clarey, suggests that in order to avoid this mess, maybe we ought to take the Good Book out of the courtroom and instead provide the witness with a copy of the Constitution on which to place his left hand. More (Yes Weekly 07.06.2005). Related story: Swearing on the Koran. Comment. All that should be required is that the witness acknowledge an awareness of the laws against perjury & that he promise or swear to tell the truth in his testimony. What should be allowed is a trickier matter, as the above opinion piece makes clear.

    Ought the Canons of Judicial Conduct apply to poetry judges? "In today's literary climate, winning a major [poetry] contest is one of the only sure tickets to continuing life as a poet. Winners get book deals and professorships; losers look for another line of work. In this world, according to [Librarian Alan] Cordle, judges -- often 'celebrity poets' who teach at prestigious schools -- routinely award prizes to their students, friends and lovers. It is in his view a world of cozy cronyism that few outsiders know or care about, although poets have been whispering about it for decades...." More (Detroit News 07.06.2005). Cordle's site, where he "names names," is Foetry.Com. Comment. Every subculture, including the judicial subculture, has its own version of the "world of cozy cronyism that few outsiders know or care about." The late C. Wright Mills, the sociologist, wrote an influential book titled The Power Elite in the 1950s. For some of my musings on whether there is an "invisible" power elite in Minnesota and, if so, the extent to which that elite gets its way in running the state judicial system, click here & scroll down to "'Power elite' in MN?" There are some forms of questionable influence on decisionmaking in all spheres, & canons & codes don't always get at those influences. I will say this: I'm a "poetic doodler" & as such I entered a poetry contest in 1997 sponsored by Barnes & Noble and City Pages, a local alternative paper; it is the only such contest I ever entered. I seem to recall there were around a hundred entrants. I was one of two or three who won prizes -- in my case some small gift certificates I didn't use. The judges in that contest were "clean," I like to think.

    What the financial reports show about Utah's federal judges. "They all wear the same robes, interpret the same federal law and earn roughly the same amount of money for their service. But Utah's nine federal judges are a mixed bag when it comes to their financial portfolios. Some are rich, some are less affluent. Some are stock-market junkies with a wide range of investments, while others stake their retirement on safe IRAs and government pensions...." More (Deseret News 07.06.2005). Click here to gain access at Judicial Watch to the disclosure reports filed by all federal judges.

    Judges' property under scrutiny. "The Justice Ministry has published property declarations from judges for 2004 on the Internet. The ministry views the move as a significant step in its fight against corruption within the judiciary, the daily SME reported. The Justice Ministry assumes that the public will regularly scrutinize judges declarations and file complaints if they notice anything suspicious...." More (The Slovak Spectator 07.06.2005).

    New top judges named as Greece's judiciary in turmoil. "The judiciary has been mired in scandal since the beginning of the year as allegations of corruption have flowed. Seven judicial officials have been sacked by the Supreme Court in the past few weeks and at least a dozen more are facing dismissal. The allegations have reached right to the top -- Achilleas Zisis, a Supreme Court vice president, is under investigation for allegations of dealings with a businessman on the run from the law...." More (International Herald Tribune 07.06.2005).

    The eccentric Judge Noel Cannon - Ah! when will we see her likes again? "It was in 1972 that a police officer pulled up beside her car and advised, after she rolled down her window: 'Ma’am, there is no reason to honk your horn. The gentleman was just waiting for a pedestrian, like he should have.' Enraged, she told one bailiff: 'Find the son of a bitch; I want him found and brought in right away. Give me a gun; I am going to shoot his balls off and give him a .38 vasectomy.' Like remarks were made repeatedly to another bailiff. When the officer was found and came to her chambers, Cannon told him: 'You’ve been a very naughty boy' and gave him some religious literature to read...." From an article on the 1960s in a series of articles on the role of the L.A. County Bar in judicial elections (Metropolitan News-Enterprise 07.05.2005).

    Judge orders city to fix courthouse in suit brought by judges. "The city has two days to fix the biggest hazards at the General District Court facilities in the old Public Safety Building at 501 N. Ninth St., a judge ordered today...." More (Richmond Times-Dispatch 07.05.2005).

    Quote-of-day: Judging the infallability of umpires. "Why is the umpire always right? I'm tired of seeing great players and coaches thrown out when they are not wrong. I'll never forget Larry Bowa asking, 'I'm getting kicked out when you blew a call?'" - Rob Brandt, Holland, from Letters (Philadelphia Daily News 07.06.2005).

    Howard Phillips urges Bush to nominate Roy Moore. Says Phillips, Chair of the Conservative Caucus: "He is a rock-solid defender of the right to acknowledge God, a foe of sodomy and abortion, and a critic of the 'legal positivism' embraced by David Souter, Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsberg and Steven Breyer." More (World Net Daily 07.06.2005). Comment. Moore, as you know, is the so-called "Ten Commandments Judge," who was elected Chief Justice of the Alabama Supreme Court on a Ten-Commandments-in-the-courtroom platform. Without permission from his associates, he had workmen move a large "monument to the Ten Commandments" into the court building in the middle of the night. Eventually, he was ordered by a federal court to remove it & was himself removed from office by the state for failing to comply with the federal court order. Moore is reportedly considering a run for the Alabama governorship on the same platform. More & more. And see, 7-day cruise with the chief -- as low as $1,468! (scroll down).

    Is Bush considering TV reality-show format for selecting new Justice? There are so many rumors out there that a fellow doesn't know what to believe. One rumor, which I just started and therefore am inclined to doubt, is that David E. Kelley, the genius who brought us Ally McBeal, is in intense talks with the White House to devise and produce a TV reality show for selecting three finalists, from which the President would choose O'Connor's replacement. It appears, however, that Kelley is involved in a different law-related reality TV series airing this summer. Given the recent closeness of the Bushes & the Clintons, President Clinton's TV producer friends, Harry Thomason and Linda Bloodworth-Thomason, possibly might be enlisted instead, although no one has asked them.
   Twelve competitors. The competition would consist of twelve objectively-qualified candidates for the Court. Some would be selected by the two major political parties, some by a conference of law school deans (perhaps Harvard, Michigan, Yale, Stanford, Chicago &, in a nod to the Bushes, Texas or S.M.U.), some by the current members of the Court, some by the editorial boards of the New York Times and the National Review, some by an algorithm devised by Judge Richard Posner. The twelve would engage in a weekly live "judge off." A combined vote of the general public (watching at home and voting via telephones and text messaging) and of an in-studio panel of six court experts would determine which judge to eliminate each week. The panel members reportedly would be selected randomly from a list of authors of fiction & nonfiction books published on the court system, court cases, judges, murders, organized crime, etc., during the last twenty years.
   Criteria. Candidates would be judged in categories such as: judicial appearance; judicial experience; moot court performance; family longevity; judicial philosophy; knowledge of the law; mental & physical health; inter-personal skills; skills at Machiavellian intra-group dynamics; the art of Oscar Wildean one-upmanship needed to counterbalance Nino Scalia's dominance of oral arguments and the art of aphorism needed to respond to Scalia's pithy statements in dissent; writing ability; speaking ability, including an ear for judicial cadences needed to better feign gravitas when speaking; ability to ask questions and to listen to answers; creativity; family longevity; independence; desire to please the Commander in Chief & willingness to follow, toady-style, his preferred approach to constitutional adjudication; knowledge of Biblical trivia and a hearty supply of good clean religious anecdotes; precision and free-style judicial walking; dictionary & etymological skills that are useful in understanding texts; previous "tour" experience on state appellate courts that would aid the Court in planning its new spring & fall Court Road Tours modeled on those first staged by some trend-setting midwestern appellate courts; experience at free travel/seminar planning; experience in negotiating lucrative book advances to supplement the paltry judicial salaries; the art of time-sheets & expense-reports; connections with big law firms & the ABA; knowledge and experience in the ways of the Georgetown party circuit; etc.
   Profits. The profits from the sale of rights to the show would go to funding the Chief Justice's discretionary fund, the Court's birthday cake fund, the Court Sunshine Club's "Flowers from the Top Nine" program, certificates of achievement to support staff, the Justices' monthly court casino night poker games, better robes (ones with fancy gold embroidery on the sleeves), judicial makeovers, a new Boston Celtic-style parquet basketball floor in the Court Gym, and annual 15% cost-of-living increases for the Justices (but not their support staff). Also, some of the profits might be "reinvested" in a potentially highly profitable Supreme Court Gift Shop, similar to gift shops seen in other oft-visited buildings and museums in D.C. Gift items might include post cards, bobble-head dolls of the past & current justices (click here for more bobblehead judges), autographed copies (at premium prices) of books by the justices, autographed photos (at premium prices) of the justices, replica robes of the justices (with each robe containing the name & number of the judge on the back in athletic-team style), CDs of John Ashcroft singing "Let the Eagle Soar," etc.

    Retired judge cashes in on human weakness? St. Paul (the apostle, not the city or the judge) argued that while it might be better if a fellow didn't get married, it was better to get married if he couldn't do without sex. I think he felt that guys who got married were "weak" in some way. But Paul was plastic in his ability to change with the times -- after all, until he had his famous "experience" on the road to Damascus, I think it was, he was a bad dude. Who knows, were he alive today, he might be cashing in on poor human beings' "weakness" for marriage. There's a retired judge in Minnesota who's been flexible enough to go with the flow of retirement. He's become a sort of commercial marrying judge. "Each year he officiates at about 300 weddings, mostly in Stillwater and St. Paul. About 70 of these are on his farm, north of Stillwater, during spring, summer and fall. His family has owned the land since 1898. No longer are there cows and corn. Now brides steal the scene and the crops are roses, clematis and fuchsia...His usual fee is $900 for use of the grounds [for the ceremony, not for the reception] and his services, including a rehearsal..." The judge's name is Howard Albertson. More (Minneapolis Star-Tribune 07.05.2005). Just think, if only the state would legalize same-sex marriages, how this market would expand.

    The P.M. appoints Lord Chief Justice & no one pays attention. "What is the name of Britain's newly appointed lord chief justice, who will take over from Lord Woolf on October 1 as the most important judge in the land? You will not be alone, I think, if you do not immediately call to mind Nicholas Phillips, who as Lord Phillips of Worth Matravers has presided over the court of appeal for the past five years. Nor are you likely to be the only reader not fully aware that Lord Phillips will be succeeded as master of the rolls by Sir Anthony Clarke, nor that Sir Igor Judge -- surely the best name on the English bench - will be the new head of the Queen's bench division of the high court...." The author of this piece in the UK Guardian (07.05.2005) argues that our "vulgar system" of choosing U.S. Supreme Court Justices puts the British system to shame.

    From picking grapes to donning a robe. "By any measure, it's a long way from...picking grapes, peaches and peppers in the Central Valley sun, to donning a black robe and deciding between probation, jail or prison for defendants in the courtroom. A long journey, indeed, but C. Don Clay has made it...His unconventional path to the bench began in Fowler, a tiny raisin town along Highway 99 in San Joaquin Valley, where Clay was born when his mom was 14. Raised mainly by his grandmother, who worked as a domestic, Clay moved from Fowler to an integrated working-class neighborhood in Fresno when he was in the sixth grade...." More (San Jose Mercury News 07.05.2005).

    Presidents have been surprised by their choices for Court. "In July 1902, confident that he had found a judge opposed to 'big railroad men and other members of large corporations,' Theodore Roosevelt named Oliver Wendell Holmes Jr. as his first appointee to the Supreme Court, delighted with a choice that their fellow Republican, Senator Henry Cabot Lodge of Massachusetts, called 'our kind right through.'...'I could carve out of a banana a judge with more backbone than that,' an enraged Roosevelt [later would] declare[]" when Holmes had the audacity to "vote against him" (my phrase) in the famous Northern Securities anti-trust case, siding with "the bad guys" (again, my phrase). More (N. Y. Times 07.05.2005). And see, The Appointment Boomerang & List of Justices who defied expectation (UK Guardian 07.04.2005). Comment. The President wants a pre-programmed robot to "represent" his views on the Court. But just as people eventually "break" with their mentors, asserting their independence, judicial appointees often find themselves "breaking" with the President who appointed them. Presidents can try appoint lawyers who'll see things their way, but they have to appoint lawyers. We lawyers are trained in law schools to be specialists in the common -- in the common law, common sense, ordinariness, reasonableness, pragmatism, cost-benefit thinking, totality-of-the-circumstances analysis, the importance of process, blah-blah & etcetera, etcetera. We all, no matter where we are on the political spectrum in our youth, tend toward the Great Center after we leave law school & as we grow older & wiser. Moreover, once the most dependent, groveling wannabe gets the title of Supreme Court Justice & the authority & the independence that comes from life tenure, her thoughts turn from the guy who appointed her to what the folks who write law review articles and court histories will think of her. As Martha (Washington, not Stewart) might say, "This is a good thing."

    Need for judicial reform in Lebanon - a two-parter. "What happened in Lebanon is that, over the years following independence, the justice system has been largely reduced to a tool of the executive branch of government and the special interest groups...." More (Lebanon Daily Star 07.05.2005).

    What should judge do when someone on bail commits a horrendous crime? "A day after missing 8-year-old Shasta Groene turned up with a registered sex offender, a Minnesota judge was answering for why the suspect was released on bail earlier this year after being charged with molesting a 6-year-old boy at a Detroit Lakes school playground. Becker County District Judge Thomas Schroeder, who had set bail at $15,000 despite prosecutors' request that it be $25,000, said Sunday that he barely remembers the case and isn't sure if he knew then that Joseph Edward Duncan III was a registered Level 3 sex offender...." More (St. Paul Pioneer Press 07.04.2005). Comment. It's too easy to immediately blame the trial judge when someone out on bail commits a horrendous crime. I'm sure good judges struggle over what to do when they find themselves in the position of Judge Schroeder. I saw him being interviewed in casual clothes over the weekend by one of the TV reporters who probably showed up outside his home. He seems like a nice person & he may well be a good judge who did the right thing, given the information he had, in setting bail as he did. But in my opinion, it would have been better if he hadn't given the interviews. He hurt rather than helped himself & the judiciary by the answers he gave & maybe by answering questions at all. I still generally like the traditional approach I learned from watching Chief Justice Oscar Knutson of the Minnesota Supreme Court perform in public. He performed in public by not performing, by not talking with the press about individual cases. A judge generally ought to address himself to individual cases only in those cases, in court, on the record.

    Yet another idea for specialized court: health court. "One intriguing idea, backed by the bipartisan legal reform group Common Good, is special 'health courts,' where judges experienced in medicine would try cases without juries. Rep. Mac Thornberry, R-Texas, and Sens. Mike Enzi, R-Wyo., and Max Baucus, D-Mont., have introduced bills to let [Did you say "let"?] states experiment with these courts...." More (USA Today 07.05.2005). Comment. For more on the specialized court fad: MN Supreme Court Justice gushes with praise for drug courts - 'Protest Court' & Equality Court'

    Kill a judge & judges will kill you? "A Sri Lankan court on Monday sentenced five defendants to death on charges of killing a High Court judge who had handed down heavy penalties to drug traffickers...." More (Hindustan Times 07.04.2005). Comment. Of the judicially-decreed executions, 90% take place in "the big four": China, Saudi Arabia, the USA (in 3d place) and Iran. It is a sad comment on our country that it is allied with these three countries and Third World countries like Sri Lanka on this issue. No, it is a sad comment on our country that it is even on the list of countries that still allow execution. If you look at the list you'll see that most of the countries that have the death penalty are countries you wouldn't want to visit, much less live in. On the other hand, our enlightened Western European allies are uniformly opposed to the death penalty. More at BurtLaw's Law & Capital Punishment. And see, the archived position paper on Crime & Punishment from my 2004 campaign for Congress.

    Annals of judging - the judges 'recoiled.' He was "so ugly even the judges recoiled." Perhaps it was expecting too much that they nonetheless judge him without regard to his appearance. After all, this is America, where judges are supposed to apply neutral principles and decide according to the law, not their personal preferences. Instead of doing that, the judges -- believe it or not -- favored him because of his ugliness. Isn't this just plain wrong? More at Even judges horrified by ugly dog (Chicago Sun-Times 07.05.2005). And see, Dog judging, jam&jelly judging, etc.

    Can't judges keep their house clean? Employee complaints about breathing problems & fatigue possibly related to the cleanliness of the Superior Court Building in New Haven, CT have led to the issuance of some OSHA citations but as yet no fines. In particular the judiciary has been faulted for failing "to prevent pigeons from getting into the building and nesting there," with the result that "some stairs and floors are coated with pigeon droppings and feathers." Other problems include "asbestos, lead [and] mold air quality issues." More (New Haven Register 07.05.2005). Comment. Some of the smartest people in the country teach at Yale in New Haven & yet the last time I visited the city, on an eastern-colleges trip with my kids in the summer of 1992, I was shocked at the physical & economic state of the city & its neighborhoods. The kids expressed no interest in applying there & wound up both getting accepted at Harvard, which has shown initiative & smarts in improving the quality of life in Cambridge & Somerville. More (Metropolis Magazine Feb. 2001).

    Judge acquitted of drunk driving charge. "DuPage County Circuit Court Judge Rodney Equi, who was involved in an accident in March, has been acquitted of a drunken-driving charge. Lake County Circuit Court Judge Mitchell Hoffman, who presided over the bench trial Friday, said the village of Glen Ellyn failed to prove Equi was driving while drunk on the night of March 15...." The trial judge apparently didn't have the benefit of a field sobriety test (the suspect judge declined to submit to one) or other blood-alcohol test evidence. More (Chicago Sun-Times 07.04.2005). Comment. In those jurisdictions in which a judge may be removed from office for a DWI offense (I don't know if Illinois is such a jurisdiction), there is a great incentive for a judge to do what he can to avoid a conviction. In more sensible jurisdictions, like Minnesota, a judge arrested for DWI typically pleads guilty quickly, often at the first available opportunity, & takes her medicine. See, e.g., Minnesota judge pleads guilty to DWI. Also, in Minnesota, it is entirely possible that a judge might fare worse by refusing to submit to a properly-requested blood-alcohol test.

    'Conservative' groups rally against Gonzales. "Within hours after Justice Sandra Day O'Connor's announced retirement from the Supreme Court, members of conservative groups around the country convened in five national conference calls in which, participants said, they shared one big concern: heading off any effort by President Bush to nominate his attorney general, Alberto R. Gonzales, to replace her...." More (N.Y. Times 07.03.2005). Comment. Gonzales is the Harvard Law grad from Texas who advised the President to ignore the Geneva Conventions in our treatment of prisoners on Guantanamo Bay -- i.e., told him what he wanted to hear. And he's the guy who, when Bush was merrily signing death warrants as governor of Texas, was sitting at Bush's right hand, advising him to do so -- i.e., telling him what he wanted to hear. One almost wonders if this protest is a ruse designed to sucker the easily-suckered Democrats in the Senate (who fell for the bait-and-switch on invading Iraq) that maybe they oughta support Gonzales because if the "conservatives" don't like him, he must be good. I put "conservatives" in quotes because so many of these folks who call themselves "conservatives" would make Barry Goldwater, if he were alive, wretch. They know nothing about the great Anglo-American common law tradition of judging, which is a true-conservative tradition, and they don't want  Bush to appoint people who will judge in that tradition. What they want are pre-programmed robots. If Gonzales doesn't fit that bill, at least he's proven he'll reliably do what the President expects him to do. How can the clowns ask for anything more?

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