The Daily Judge

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.

About links. a) Links, like judges, eventually retire or expire, some sooner than others. b) Access to all stories via these links is free, at least initially, although some sites require free registration. c) Free access often turns to fee access after a day or a week or some such period. d) Entries, following the typical blog format, are in reverse chronological order.

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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.

MN judge under fire for bail decision not 'soft on crime.' "A judge who's under fire for allowing sex offender

Joseph Edward Duncan III to go free on bail is regarded locally as so tough that defendants try to avoid him, defense attorneys say. Judge Thomas Schroeder has been removed from 98 court cases in the past year, more than any other judge on a list compiled by Minnesota's 7th Judicial District...." More (Seattle Post-Intelligencer 07.22.2005). Earlier story. Comment. We've said it before & we'll say it again: 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. Bill O'Reilly is quoted in the latest story as calling Schroeder "a disgrace." People like Bill O'Reilly get paid to say rash things.

Litigation Strategy & Tactics 101: Creating a conflict for the judge. "Frequent or not, the retention of a firm that employs a judge's spouse raises the ethical question of whether a jurist should step down in the face of what could be construed as a deliberate attempt to force him off the case...." More (Law.Com via Yahoo 07.22.2005).

Beloved judge named 'Joy' died with 'beatific smile on face.' "Bernard 'Bob' Joy Sr., [Milford, CT's] beloved former probate judge, died with a beatific smile on his face, mourners at his funeral were told Thursday...The retired judge had a silly side and was very ticklish, his daughter, Mary Manley, said in a eulogy read by her brother. 'He would talk baby talk and make up goofy songs, but he was my rock and my foundation, the one who always told me that everything would be all right,' she wrote." The judge died of injuries sustained in a motor vehicle accident. More (Connecticut Post 07.22.2005). Comment. If your kids think highly of you, you're a success. If they don't, well....

Antiguan says, 'No Trinidadian judges, please.' The Antigua "CDC," whatever that is, apparently is bringing in four Trinidadian judges to judge the island's annual calypso competition. In a letter to the Antigua Sun (07.22.2005), Ms. Hyacinth Richards writes, in part: "I just cannot believe that this is what we have come to. We say we are so independent yet we have to go for outside help to judge kaiso?...Would Trinidadians want us to come and judge their kaiso? Hell no...." Comment. Or, to carry Hyacinth's thought one step further, Would Americans want Russians to umpire our baseball games or sit in judgment on our class actions? Hell no....

Did hotdog stand create 'circus-like atmosphere in the courts'? Incredible as it sounds, that apparently was the complaint some judges made to the county about a hotdog vendor who set up shop outside the Monterey County Courthouse in Salinas, CA., John Steinbeck's hometown. As a result of the complaints, the county gave the vendor, Craig Pakish, the boot, "citing provisions in contracts and agreements with the county's primary food vendor at the courthouse." According to this story in the Monterey Herald (07.22.2005), "The county's action apparently was sparked by complaints from some judges who believe the sale of hot dogs in the courthouse courtyard is undignified and leads to a circuslike atmosphere in the courts." Court employees reportedly miss their wieners. Comment. Pakish reportedly says he might sue. We hope he does. Presumably the judges who complained will have to recuse. Pakish may well win, because apparently hotdog stands are popular outside many courthouses in California. To the judges, we say, Have you ever watched Law & Order? We think not. Hotdog stands outside courthouses are as American as metal detectors inside courthouses.

The sting is on at the local courthouse. "With a head nod from the judge, plainclothes police in traffic court at Valley Superior Court on Thursday were alerted to possible illegal drivers. After leaving the [San Bernardino County C]ourthouse [in Fontana, CA] unknowingly followed by police, those who dared get behind the wheel after being ordered not to drive were slapped with citations or arrests. On top of that, their cars were impounded for 30 days...The next courthouse sting is scheduled for a Thursday in October...." More (Inland Valley Daily Bulletin 07.21.2005).

Court reporter disses judge. One of the key prosecution witnesses in the ongoing Mississippi judicial bribery trial in federal court is a former judge named J. N. Randall. Yesterday his court reporter at the time he left the bench testified he couldn't be trusted: "'My opinion is that J.N. talked out of both sides of his mouth,' said Kay Larson, who worked for Randall from 1998 until he left the bench in 2001...Larson [also] said that, during his last year on the bench, Randall took off on Mondays and Fridays, and also marked his calendar to be gone on days when fishing was good...." More (Biloxi Sun-Herald 07.22.2005).

Judicial Commission lectures judges on campaign contributions. "The state Judicial Discipline Commission has cautioned Nevada judges to avoid any activity that could make lawyers feel coerced into making campaign donations to the jurists. The commission's warning was included in a formal order, released Thursday, that confirms the panel's June 29 censure of former Clark County District Judge Jeff Sobel, for trying to pressure lawyers to give him campaign contributions in his 2002 re-election campaign...." More (Las Vegas Sun 07.21.2005).

Court in India faces shortage of judges. "There is a sanctioned strength of 49 judges for the Madras High Court but the actual strength is almost half that number at 24...." More (NDTV India 07.21.2005). Comment. A modest proposal: outsource cases to American judges. Fair is fair.

Public is upset over judicial pay raises in PA. Earlier, on 07.07, we linked to a story out of PA with the headline, "Judges give no apologies for getting pay increases." Facing considerable public outcry, Chief Justice Ralph Cappy's office "sent out an opinion piece by Cappy to 92 daily newspapers defending the raise, calling criticism of Gov. Rendell and lawmakers 'unfair, superficial and shortsighted,' and praising those who voted for the raise for their 'extraordinary courage.'" According to an opinion piece in the Philadelphia Daily News (07.21.2005), "Cappy...offered the pay plan[, which] ties judicial and legislative salaries to federal pay -- and increases his own salary by $22,325 to $176,800." Cappy is quoted as saying the public outcry is "knee-jerk" & he hasn't heard anyone criticize the increases on the merits, but the columnist, John Baer, says Cappy must be "living on another planet." Comment. Pay increases for judges often are controversial. I remember a state judge telling a group of people 30 years ago, "Nobody ever got himself elected governor on a platform advocating pay increases for judges."

Judge's animosity to defense counsel & body language = new trial. The Court of Appeal in London has reversed the convictions of two people & may reverse that of a third person, all unrelated cases having in common the same trial judge, Nicholas Medawar, QC. The Court hasn't filed its written reasons yet but The Times of London (07.22.2005) suggests it's likely the reversals are because of the common complaints on appeal regarding the judge's "irritable" conduct in the courtroom, including "animosity" toward defense counsel and "body language in relation to defence points -- said to involve 'rolling of the eyes and shaking of the head.'" (More) Comment. If the allegations are true, Judge Medawar sounds like a colorful character out of Rumpole of the Bailey, by John Mortimer. If I remember my Rumpole correctly, "his" judges are always engaging in conduct like this.

Who was Judge Henry Friendly? Today's New York Times states that Judge John Roberts, President Bush's choice to replace Justice O'Connor, clerked for U.S. Circuit Judge Henry J. Friendly before he clerked for Chief Justice Rehnquist & that he was one of Judge Friendly's favorite of many, many clerks. Who was the late Judge Friendly? If you went to Harvard Law School, as I did (see, BurtLaw's Harvard Law School), you know. The sort of stuff we students heard about him is reflected in footnote 18 of Justice Stevens' dissenting opinion (in which Justices Brennan and Marshall joined) in Finley v. United States, 490 U.S. 545 (1989) (a 5-4 decision of a jurisdiction issue for which Justice Scalia wrote the majority opinion). Justice Stevens, relying on circuit court decisions contrary to Justice Scalia's decision, took the unusual step of lavishing praise upon the late Judge Friendly in the above-mentioned footnote:

In 1963, Justice Frankfurter regarded him "as the best judge now writing opinions on the American scene," see Freund, In Memoriam: Henry J. Friendly, 99 Harv. L. Rev. 1709, 1720 (1986); Erwin Griswold has described him as "the ablest lawyer of my generation," ibid., and Judge Posner called him "the greatest federal appellate judge of his time," id., at 1724.

I never had occasion to focus on any of Judge Friendly's opinions in areas of the law in which he was the acknowledged master. But I did read a number of his decisions in one of my areas of expertise, criminal procedure. I can't say I would rate those decisions highly. However, any judge who receives the sort of praise Friendly received from the likes of Frankfurter, Freund, Griswold & Posner must have been some judge. Prof. Freund once wrote of the voices of the past that speak to a judge as he decides and as he writes (two things that I have found go together). I'd be willing to bet that Judge Roberts will hear Judge Friendly saying many things to him in the years ahead. Perhaps even in deciding some more of the cases inevitably coming out of Guantanamo Bay & the so-called "War on Terror" he'll hear Judge Friendly, who famously set forth the ten or eleven (depending on how you count them) essential elementsof due process & a fair hearing. See, Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975).

Entertaining profile of controversial Israeli judge. Micha Lindenstrauss, who was head of the Association of Judges in Israel, is the controversial new state comptroller. In an entertaining, opinionated profile of him in Haaretz (07.21.2005), he is said to be unusually sensitive to criticism. But he also appears to be good at tooting his own horn in self-defense. And why not? Here's what he says about his tenure as head of the Association of Judges: "If only Israel's international relations were like those of the Association of Judges. We are an international powerhouse. Who achieved that? The Association of Judges." And here's what he is quoted as saying about himself: "Show me other justices in the Israeli Supreme Court who wrote creative judicial literature as I did. Yesterday, in the reception of the Association of Judges, [Chief Justice] Barak recalled that 'Micha is the man of letters of the judicial world.' The book [I wrote] on reasonable doubt sold out in record time, as far as I know. Legal literature doesn't sell out so fast. Go through my list of judgments and you will see for yourself how many of them were precedent-setting...." Read on & you might get a sense of not only Israeli's free-for-all politics but of what life can be like as a judge in Israel.

Junior livestock judging competition now, Senate confirmation someday? "[Rochelle] Wilkinson, [age 9,] a student at Silver Creek Elementary, was among about 15 youths who participated in the [Clark County Indiana 4-H F]air's Livestock Judging Competition, in which 4-Hers are asked to evaluate breeding and market stock for three types of animals. Adult judges evaluate the same animals, then award championships in junior, intermediate and senior categories based on how closely the competitors' rankings match their own. Written tests, which ask questions about the animals judged, serve as tie-breakers...." More (Jeffersonville Evening News & New Albany Tribune 07.21.2005). Comment. Perhaps The Federalist Society, which has done so much to further the cause of a conservative judiciary, ought to consider sponsoring a similar judging competition, with kids sitting in on cases heard by conservative judges, with first prize in each case being given to the competitor whose analysis most closely matches that of the judge. When I was a school kid there was an FFA, Future Farmers of America club. Why don't The Federalists sponsor FCJA (Future Conservative Judges of America) chapters in schools? And how's about sponsoring Junior Judge Camps, with individual cabins named for great conservative judges -- e.g., the Bork Cabin?

A specialized court for forgery cases? "The Delhi High Court today asked the state government if it was willing to set up Special Courts to try cases related to use of fake SC/ST certificates for acquiring jobs...." More (Express India 07.20.2005). Earlier: "Scotland's only dedicated weapons court designed to fast-track offenders has been launched...." More (BBC 06.23.2005). And see, 'Protest court' & 'Equality Court' & How about 'Practical Joke Court'?

Defendant: threat to cut off judge's head just a way to relieve stress. "A man who threatened to cut off a judge’s head, cut up his body and eat it was sen-tenced to 16 months in prison Wednesday. Dustin Herron, 20, made the threat against Judge David Kinworthy of Allen County Juvenile Court in a letter he sent in May 2004 from a prison for children. Kinworthy had sentenced Herron to a prison when Herron was under 18. Herron said he wrote the letter to relieve stress from being locked up. 'If I would have been released I wouldn’t have harmed anyone,' he said. 'I didn’t mean no harm to him or his family.'" More (Lima News 07.21.2005). Comment. All Dusty needs is to learn some socially-acceptable ways of relieving stress. He can start by learning to look on the bright side of things -- e.g., if he'd threatened to blow up the White House, he might have gotten 34 months or, who knows, maybe more. See, Man sentenced in White House standoff (Washington Post 07.20.2005).

Should U.S. worry about increasing ties between Chinese & Fijian judges? "Chinese Deputy Chief Justice Rong He...headed a team of Chinese judges on a visit to Fiji yesterday. The visits started last year, Justice He said, and has seen a growth in the relationship between the countries. The team met Chief Justice Daniel Fatiaki as part of the visit...Justice He [who is a she] said the beautiful people of Fiji and their smile deserved a superb legal service...." More (Fiji Times 07.21.2005).

Columbia County, Wis. Courthouse may soon have 'panic buttons.' "In case the unthinkable should happen, the Columbia County Courthouse may soon be fully equipped with panic buttons. Although some $18,000 in funding for the system still remains a question, panic buttons are closer to becoming a reality after members on the Columbia County Courthouse Security Committee were impressed by a demonstration of a wireless immediate notification system Wednesday...." More (Portage Daily Register 07.21.2005). Comment. Two of my great-grandparents, Ole Herfindahl & his future wife Ragnhilda Horveid (Harvey), both immigrants from western Norway, met while living in Columbia County, a county rich in Norwegian-American history. After getting married in 1870 (She was only 16, only 16), they moved to the old homestead north of Benson, MN, my hometown. Courthouses all around the country are in panic mode these days & many of them are putting aside all reasonable notions of cost/benefit in an attempt to prevent or better cope with "the unthinkable." Whether the mild-mannered people of Columbia County really need to so equip their courthouse is a matter on which this distant cousin has no opinion. In general, though, I think the small-town, small-time money might just as well be spent paying Prof. Hill to outfit the kids with band instruments & uniforms.

But, see... "An Iowa man was arrested Wednesday after crashing into a retaining wall at the Vermillion courthouse where he was scheduled to appear. Jada Coover, 24, of Sioux City was being pursued by a South Dakota Highway Patrol officer after the vehicle he was driving was suspected of being involved in a hit-and-run on Interstate 29 in Union County...After he crashed the vehicle, which authorities said was stolen Wednesday morning from Sioux City, Iowa, Coover ran inside the courthouse to the room where his trial was to be held. 'We felt he was coming into the courthouse to cause harm upon someone,' Clay County Sheriff Andy Howe said...." More (Sioux Falls Argus-Leader 07.21.2005).

Pssst, it's John Roberts. ABC-TV News broke in on the soaps yesterday to say it had learned that the nominee was Judge Edith Brown Clement. We're not trained journalists but we had the sense to pass it on as mere rumour. A funny thing happened to Judge Clement on the way to

the White House for the announcement. Mild-mannered, popular, All-American boy wonder John Roberts (isn't he the CBS-TV news anchor?) muscled his way into the limo ahead of her, slammed the door on her & told the driver to "floor it." Who is John Roberts? A number of years ago a nice fellow was appointed to one of our state supreme courts & he went around the state speaking to bar groups on the slightly egomaniacal theme of "Who is (fill in the speaker's name)?" I've always been amused by that, as

have others. In any event, the question is, "Who is John Roberts." Linda Greenhouse's profile (N.Y. Times 07.20, 2005) doesn't tell us much but maybe it tells us enough. The questions asked by Senators on the Judiciary Committee may seem probing but it's doubtful the whiz kid's answers will reveal much. It strikes me he got where he is partly by keeping his cards close to his vest. When will we find out? Well, he's 50. He went to Harvard Law. Harvard Law grads love the middle. I know: I went there. See, BurtLaw's Harvard Law School. That's probably where he'll start off, in the Harvard Law middle. As the years roll by, will he stop being centrist & become eccentric? That's what a reporter did to a judge I worked for. In his retirement interview he described himself as a "centrist." She wrote that he described himself as "eccentric," which means off-center. Fact is, in his youth he was, by his own admission, somewhat of a leftist, that is, eccentric. As a mature, highly talented judge, he was a centrist. Robert Frost wrote that he was conservative in his youth so that he could be radical in his old age. All we know is that people change when they become Supreme Court Justices. At least, that's what Felix Frankfurter said. He, of course, was the radical prof (who some old Harvard fogies wanted to oust from his highly-endowed chair) who became the model of the restrained, principled judge. He said, in answer to the question whether a fellow would change after he became a Supreme Court Justice, "He will if he was any good to begin with." Moreover, those remaining on the Court will change with Justice Roberts. One or more "conservatives" might move to the center. Or vice-versa. It's called Life. Change. Growth. Experience. Surprising oneself. Surprising those who put you where you are. Each of us, if he's any good to begin with, changes & surprises himself many time across a life.

O'Connor went fly-fishing. "Much of America knew the name of the man nominated to replace Supreme Court Justice Sandra Day O'Connor before she did. O'Connor, in Spokane to speak at a conference of federal judges from the western United States, spent this afternoon fly-fishing on the St. Joe River in northern Idaho with U.S. District Judge Robert Whaley of Spokane. They were out of cellphone cellular telephone range for much of the afternoon, and had no way to know that President Bush was trying to reach O'Connor to tell her of his choice of federal appeals- court Judge John Roberts Jr. to replace her on the high court...." More (Seattle Times 07.20.2005). Comment. Hmm, I didn't know Justice O'Connor liked fly-fishing. I've known a number of judges who liked, even loved, fishing, regardless the weather or the politics of it, but none as devoted to it as the late John Voelker (1903-1991), the former Michigan Supreme Court Justice who, under the pen name, Robert Traver, wrote Anatomy of a Murder. Voelker also wrote several much-loved books on trout fishing in the Upper Peninsula of Michigan. Here's his "Testament of a Fisherman," which I think gives a clue as to the kind of judge, and man, he was:

I fish because I love to; because I love the environs where trout are found, which are invariably beautiful, and hate the environs where crowds of people are found, which are invariably ugly; because of all the television commercials, cocktail parties, and assorted social posturing I thus escape; because, in a world where most men seem to spend their lives doing things they hate, my fishing is at once an endless source of delight and an act of small rebellion; because trout do not lie or cheat and cannot be bought or bribed or impressed by power, but respond only to quietude and humility and endless patience; because I suspect that men are going along this way for the last time, and I for one don't want to waste the trip; because mercifully there are no telephones on trout waters; because only in the woods can I find solitude without loneliness; because bourbon out of an old tin cup always tastes better out there; because maybe one day I will catch a mermaid; and, finally, not because I regard fishing as being so terribly important but because I suspect that so many of the other concerns of men are equally unimportant - and not nearly so much fun.

If you were a Senator & you could ask Judge Roberts just one question... We might ask him to name his five favorite books & explain why he liked them. How about you? One of the great moments in Supreme Court appointment history occurred in 1970. That grand old man, Sen. Roman Hruska (R-Nebraska), defending failed Nixon-nominee, Judge G. Harold Carswell, against criticism that he was "mediocre," uttered these immortal words: "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Possibly a Senator of the corn-fed Roman Hruska variety, say one from Nebraska, thinking always of the ordinary, mediocre little fella, might ask a question along these lines:

Judge Roberts. I'd like to ask a question that deals with how you might rule if, say, two great constitutional principles, the right-to-privacy, on the one hand, and the right-to-know or the right-to-see, on the other hand, were to come into conflict. According to the San Francisco Chronicle, July 19 issue of this year, a federal district judge in Manhattan ruled that "Former French Open champion Anastasia Myskina can't stop a photographer from distributing topless pictures taken of her during a 2002 magazine photo session." Most Nebraskans, the people who elected me, don't care much about abstractions, about the antinomy between two equally-important abstract rights. They're ordinary, mediocre people who live in the here and now. On their behalf, I'd ask: How would you have decided this case? Would you have protected the young woman & her family from embarrassment -- or should I say, heh-heh, from embare-breast-ment? Or would you have stood for ordinary, mediocre guys I represent, guys who might like to have a peek at those pictures? Tell us your views on this stuff.

Teaching the Constitution. "Tucked into a massive appropriations bill approved without fanfare late last year by Congress is the requirement that every one of the estimated 1.8 million federal employees in the executive branch receive 'educational and training' materials about the charter on Constitution Day, a holiday celebrating the Sept. 17, 1787, signing that is so obscure that it, unlike Arbor Day, is left off many calendars...." More (Washington Post 07.19.2005). Comment. It's a start. Now if we can only get the President & all the Members of Congress who tried to intervene in the Schiavo case to read it.

New kid on the block in Georgia doesn't know his place? "When veteran [Georgia] Supreme Court Justice George H. Carley offered to show [newly-appointed Justice Harold G..] Melton around and brief him on the court's routine, Melton brushed him off, saying he would take care of it himself. He gave the same cold shoulder to longtime court staffers who offered a similar guided tour." And, horror of horrors, in his first week on the job he dissented from an order denying a stay of execution sought by a condemned murderer. According to an opinion piece in the Athens Banner-Herald (07.19.2005), "Freshman justices never write separate opinions in their first week on the job. It is just not done."

Annals of self-promotion. A press release from Ava Maria School of Law, Ann Arbor, MI, reads, in part: "Nationally Known Law School Dean Available to Discuss Nomination of Judge John Roberts Jr. Tuesday July 19, 10:04 pm ET ANN ARBOR, Mich., July 19 /PRNewswire/ -- Bernard Dobranski, Dean of Ave Maria School of Law, is available to discuss the nomination of Judge John Roberts Jr. to the U.S. Supreme Court...Dean Dobranski has previously served as the Dean for Catholic University of America's Columbus School of Law and University of Detroit Mercy School of Law...." More (Biz.Yahoo.Com 07.19.2005). Comment. Res ipsa loquitur, that is, the thing speaks for itself.

Latest South Dakota judicial news bulletins. "The National Judicial College (NJC), based in Reno, Nev., announced that Magistrate Judge Tony Portra of the Fifth Judicial Circuit in Aberdeen completed Advanced Evidence at the NJC...." More (Aberdeen American News 07.19.2005).

Bush to announce O'Connor's replacement at 8 p.m. (CDT) today. "President Bush will announce his nominee for the Supreme Court at 9 o'clock tonight, the White House said today...." More (N.Y. Times 07.19.2005). One rumour has it that he will nominate Judge Edith Brown Clement of the United States Court of Appeals for the Fifth Circuit, in New Orleans. We are in no position to evaluate the reliability and credibility of the source of that rumor. We can tell you that we don't believe another rumour, to wit, that Mr. Bush will have six finalists present and will dramatically eliminate them, one by one, a la Ryan Seacrest on American Idol. We don't believe that rumour because we just started it and find ourselves neither reliable nor credible.

How will the new Justice interpret the Constitution? With the hearings to begin soon, we presume, on Mr. Bush's nominee, "we can look forward to debates in which words and phrases like 'originalist,' 'strict constructionist,' 'textualist,' 'judicial activist' and 'intentionalist' will figure prominently, because these labels are thought by many to stand for different styles of interpreting the Constitution. Those who think so are wrong...." Op/Ed piece by Stanley Fish, Intentional Neglect (N.Y. Times 07.19.2005).

Holding court in the old Wal-Mart store - new form of 'judge-shopping'? In Randolph County Indiana there's a big to-do over whether to destroy the old courthouse & build a new one or restore the old one. Lots of people don't want to see the historic building go & some older women have posed nude for a calendar being sold to raise money to fuel the protest (& also bring attention to the cause). More. Now the county board is figuring out what to do during the construction or restoration process. Some experts say use the old Wal-Mart store. "On Monday, representatives from the hired architectural and construction firms revealed what they consider the best solution -- the old Wal-Mart store along Ind. 32 in east Winchester. Wal-Mart opened a new and larger store May 25. The 54,962-square-foot building has 'got it all,' said Skip Hanchar from the James S. Jackson construction company." More (The Star-Press 07.18.2005). Comment. If it's "got it all," maybe they oughta just move the courts & county offices there for good. Most Wal-Mart buildings are fortress-style buildings & that's the kind of courthouses architects are designing these days. These fortress-style buildings have the advantage, from the perspective of future commissioners who eventually will want to tear them down, that they are buildings no grannies would ever pose nude to try save. Meanwhile, 84% of the sensible corn-fed people of Dallas County Iowa who voted, voted to authorize $10 million in bonds to finance restoring their 103-year-old courthouse. More (Des Moines Register 07.19.2005).

New corrupt judges ring suspected in Greece. "Magistrates investigating the possible existence of a second trial-fixing ring -- apart from the one involving lawyers and judges in which a priest allegedly acted as a middleman -- believe that up to seven judicial officials may be involved, legal sources told Kathimerini...." More (Kathimerini 07.19.2005).

The public defender crisis in Mass. courts - one judge's viewpoint. "The Constitution that I swore to uphold 15 years ago is at risk in my courtroom. Since 1963, the Constitution has provided the right to counsel for any criminal defendant in danger of losing his liberty. On two recent days in Dorchester District Court, I began my session by explaining to a group of men and women, arrested the night before and standing before me handcuffed and shackled, that no lawyers were willing to accept new cases. The other day, there was one lawyer for 32 people in custody; more than half a dozen were charged with firearms offenses, one with a machine gun...." Dorchester District Court Judge Sydney Hanlon, Lack of Public Defenders Overwhelming Courts, (Boston Globe 07.19.2005).

Harassing phone calls to judge's office leads to conviction. "A man whom police said harassed a Guilford County District Court judge by calling her office phone more than 80 times pleaded guilty Monday and received probation. Patrick Horatio Jones Jr., 22, of 1217 Summit Ave., pleaded guilty to three misdemeanor counts of making a harassing phone call to Judge Teresa Vincent." Most of the time Jones said nothing, but once he said, "What's up, boo." More (Greensboro News-Record 07.19.2005).

Justices who received cash from governor won't recuse in his case. "The same five Ohio Supreme Court justices who stepped aside from hearing lawsuits tied to the state's rare-coin investments say they will not recuse themselves from a related case. The new case, filed on behalf of Democratic State Sen. Marc Dann, seeks to force Gov. Bob Taft to sit for a deposition, and the suit argues for the release of government memos that could document when the governor and his appointees knew of investment losses at the Ohio Bureau of Workers' Compensation...The justices who received contributions are Moyer ($3,500); Eve Lundberg Stratton ($10,900); Taft's former lieutenant governor, Maureen O'Connor, ($8,900); Terry O'Donnell ($2,500); and Judith Lanzinger ($2,500)...." More (Cleveland Plain Dealer 07.19.2005). Earlier: Five Ohio Supreme Ct. judges recuse in case (Toledo Blade 05.19).

Rare coins stolen from courthouse display case. "A set of rare and historic coins has been stolen from a display case at the Loudoun County courthouse, authorities said today. The 14 coins include a King George III penny, which dates to the mid- to late-1700s and is worth about $5,000, said Kraig Troxell, a spokesman for the Loudoun County Sheriff's Office...." More (Washington Post 07.18.2005).

Judge takes leave of absence to run for D.A. "Santa Clara County Superior Court Judge Ron Del Pozza announced Monday that he will take a leave of absence from the bench to run for district attorney...." More (Palo Alto Online 07.18.2005). Comment. A judge is allowed to do this in California? Apparently so. Art. VI, § 17 of the California Constitution provides in relevant part: "A judge of a trial court of record may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy." Other states do not allow this. For example, Minnesota Constitution Art. VI, § 6 provides in part: "[A judge's] term of office shall terminate at the time he files as a candidate for an elective office of the United States or for a nonjudicial office of this state."

Former judge is now gambling boss. "Ernest Yelton’s previous experience with gaming included a few visits to a riverboat casino in Evansville, a couple of trips to Las Vegas and a handheld Texas Hold ’Em game he received for Christmas. Then Yelton abandoned his judicial post after 25 years on the bench in Clay County to run the Indiana Gaming Commission...." More (Fort Wayne Journal-Gazette 07.18.2005).

The most coveted judicial job in the country? "Some have described it as the most coveted judicial job in the country. In a wood-frame courthouse, [Judge William] Wunderlich [58] and his staff handle misdemeanor cases, mostly traffic and alcohol violations that occur in [Yosemite National Park] and the adjacent Stanislaus National Forest. The job lacks the intellectual challenge of some of his past posts, but it comes with the perk of all perks. Wunderlich's house and courtroom sit in the shadow of Half Dome, El Capitan and Yosemite Falls. For this punishing duty, the judge earns about $185,000 a year, which includes his state retirement income...'To quote my predecessor, This job is as close to heaven as you can get and still be in the legal profession,' he [says]." More (Modesto Bee 07.18.2005).

A judicial secretary speaks out. "Rhonda Washington, 42, of Shreveport, always is getting comments about how her red Chevrolet Camaro Z28 is just like her, even after 14 years. 'I think it shows I'm classy and stylish and it's fast, which is like me because people usually say I'm upbeat and enthusiastic and cheerful,' said the judicial secretary. As for the car's fire red color, 'Red is one of my favorite colors, but I'm not a witch or anything. But I have been known for getting people out my face either when they're in my personal space or when they're in my way on the highway,' she said with a laugh...." More (Shreveport Times 03.03.2005). Comment. Hmmm, sounds like she might be my type. Her age is just barely right: 43 or 44 would probably be outside my range. But everything else -- classy, stylish, upbeat, enthusiastic, cheerful -- sounds right, particularly the car, which is only 14 years old (mine is 17). In that regard, I'm like the old Harvard professors who drive their old jalopies around Cambridge, when needed, but mostly walk, Cambridge being a walker's city.

Viet Nam begins publishing judicial decisions. "Viet Nam has published, for the first time ever, the judgements and decisions issued by the Judicial Council of the Supreme People's Court...[P]ublication, made with assistance of the US International Development Agency (USAID), is very significant for building up a legal environment for carrying out international transactions. This creates a legal culture where transparency is ensured so that investors can be certain of how their matters are dealt with...." More (Viet Nam News Agency 07.19.2005). Comment. Yet another example of how capitalism & commerce provide a need for reliable, fair, open and accessible professional courts; moreover, international trade requires uniform & predictable ways of settling disputes among trading partners. Somehow, in these & other ways, capitalism & free trade underly the growth of the Rule of Law.

When for-profit drug-test business & city courts have cozy relationship. "If you drink beer and you're not of legal age, here's fair warning: If you are busted in Holladay or Taylorsville [Utah], you could face a year of random drug and alcohol testing, even after you turn 21...[Dmitriy] Milyavskiy [21], was not intoxicated when he received his first-ever citation, for possession of beer. A University of Utah business major who holds down a full-time job, he was ordered into 12 months of random testing at his own expense. The $8 tests were done by Justice Supervision Services, (JSS) the private company that also first evaluated him, billing him $40, and both recommended and provided his treatment: An alcoholism class for $125 and four more sensitive drug tests, at $30 each...." The article, in the Salt Lake City Tribune (07.18.2005), goes on to point out that the city court's close relationship with the company -- which evaluates the offender, then recommends its own services -- is unusual. Also unusual is the meting out of this kind of sentence for a first-time underage drinker; it's the sort of sentence more typically given first-time drug offenders elsewhere in Utah, where first-time underage drinkers typically receive community service.

Judges in high demand; availability trumps other qualifications! "A crowded summer fair schedule has left some [Iowa] county[ies] scrambling to find judges for their summer competitions. Local fair officials look for several qualities in judges, such as the ability to interact with children. But availability trumps almost every other qualification when the best judges are already booked...." More (Quad City Times 07.18.2005). Comment. In August of 2002 we published, at BurtLaw's Law & Kids, a back-to-school interview with "Dr. F. Lavoris Pusso, Ph.D., SuperNintendent of Schools," which touched upon the difficulty of hiring good people as bus drivers. "Dr. Pusso" stated, in relevant part:

And we've had so many judges participating in the trendy judicial outreach programs -- judges who come and read books, give lectures, teach creative story writing, etc. -- that we can't accommodate them all. We're going to ask some of them to be substitute bus drivers on an on-call basis. If we provide them with U-shaped megaphones, they can lecture the kids on law while they drive. And let me say this: many of these judges are busy people who don't have time to attend their own kids' school functions, but they altruistically make the time to volunteer and help us out. You don't ever hear about all this, of course, because judges in general are modest and humble and don't like talking about themselves.

Here in Minnesota, where the roots of "judicial outreach" first took hold and grew into a giant beanstalk, with our supreme court justices sitting nicely atop it, last time I checked our supreme court justices

were self-admittedly making "hundreds" of "public appearances" around the state each year. See, BurtLaw on Judicial Independence & Accountability for a detailed summary of Minnesota's judicial outreach movement. Presumably the law-school-trained highly-experienced common law judges in Iowa's state courts participate in similar outreach programs (since Minnesota's bright ideas, like its new breeds of hybrid corn, typically migrate to the nether regions of Iowa). What better way to reach out & touch lots of voters than to volunteer your much-needed & apparently freely-available time to serve as county fair judges. Look at it this way, you can go to the fair for free, meet the voters, & get reimbursed for your expenses without using any of your vacation time. Life is good.

Courthouse can't seem to stop crime in its midst - a daily occurrence! We're talking, of course, about smoking inside the Guilford County Courthouse in High Point, NC, where, despite the presence of "Smoking is prohibited" signs, otherwise law-abiding citizens -- including lawyers (who are officers of the court), jurors (who've taken an oath) and witnesses (who swear they'll abide by the requirement to testify truthfully), but presumably not judges -- smoke away, many brazenly in the public corridors, others furtively in the bathrooms. Nonsmokers find at the end of day that their clothes reek of the stench of smoke. According to this piece in the Greensboro News-Record (07.18.2005), that may soon change. We hope so. We wouldn't want people around the country to think of tobacco when they think of North Carolina.

Judge's hubby charged with kidnapping. "A lawyer and husband of a judge in Quezon City has been charged with kidnapping by the Department of Justice before a local court in Nueva Vizcaya. In a joint resolution of the Nueva Vizcaya Prosecutor’s Office, it found probable cause against the lawyer Victor Padilla, husband of Quezon City Regional Trial Court Judge Maria Luisa Quijano-Padilla, for kidnapping and serious illegal detention and four counts of frustrated grave coercion...." More (Manila Times & ABS-CBN Interactive 07.18.2005). Comment. 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? See, e.g., Son of High Court judge charged with rape. But it's rarer, I think, for the wife or hubby of a judge to get caught in criminal wrongdoing. While Mr. Padilla is presumed innocent, it is possible, speaking generally, that criminal activity by a judge's spouse is "a cry for attention." The judge may be so busy giving speeches, reading books to school kids, serving on committees, and engaging in general "outreach" that he or she may be neglecting hubby or wifey. What better way to get wifey's or hubby's attention than to get caught doing something bad. :-)

Mr. Bush: please consider Amalya Kearse. "Thousands of lawsuits alleging respiratory injuries by firefighters, police officers and other workers in cleaning up the contaminated debris of the World Trade Center after the Sept. 11 terrorist attack will all be tried in Federal District Court

in Manhattan, a federal appeals court in New York has ruled...." More (N.Y. Times 07.18.2005). Comment. The author of the opinion of the three-judge panel of the U.S. Circuit Court of Appeals for the Second Circuit was Judge Amalya Kearse. Judge Kearse, profiled here, is a Wellesley College and University of Michigan Law School grad and has been on the circuit bench since 1979 . She is very bright, as exemplified not just by her academic & judicial achievements but by her being a world-class contract bridge player, winning her first world championship in 1986. I knew a fellow who I've always assumed was her brother or perhaps cousin, Lee Kearse, at Harvard Law, which he attended during the 1965-66 school year before deciding to go on to bigger & better things, like earning M.B.A., M.D., and Ph.D. degrees and rising to great prominence in medicine. In any event, brother or not, the Kearses I've known are first-class all the way & her appointment would add much-needed luster to the Bush Presidency.

A must-read: One Robe, Two Hats. "The administrative role of the chief justice is a 20th-century invention, not a constitutional mandate. That role, and the additional stature that comes to the chief, are the product of some 100 ad hoc Congressional statutes and the ambitions of those who held the office. William Howard Taft, who became chief justice after serving as president, sought the expansion into policymaking. So did Earl Warren and then Warren Burger, who initiated the practice of giving annual 'state of the judiciary' speeches. Chief Justice Rehnquist has gone further still, skillfully using the interaction of his administrative and adjudicative roles to shape the law of the land. Congress and the public need to reconsider the wisdom of vesting so much responsibility in one person...." From One Robe, Two Hats, by Judith Resnik & Theodore Ruger (N.Y. Times 07.17.2005). Comment. I'm sort of an old-fashioned purist -- a fuddy-duddy, if you will. I think judges ought to stick to what they do best, "judging." Such a quaint notion, I know. Not that they ought not control their own domain. But there ought to be a better way of doing it than making the Chief Justice a sort of "CEO."

Legislators riding on judges' salaries. "The Democrats were in charge when the Legislature years ago came up with the idea of tying lawmakers' retirement benefits to the salaries of state district judges. But the linkage has struck a rare bipartisan (albeit dubious) chord of harmony during these mostly contentious days of GOP control. Democrats and Republicans alike now anticipate the promise of a richer "deferred compensation" package, and lawmakers of both political persuasions are equally adept at washing their hands of something they claim -- wink, wink -- is out of their control...." More (Clay Robinson, Houston Chronicle 07.16.2005).

Where part-time 'muni' judges make more than full-time judges. "Five part-time municipal court judges earned more than the governor last year. Thirteen were paid more than full-time trial judges in Superior Court...At least two lawmakers think [it's time to cap municipal judges' salaries], but a municipal court judge said he would quit if his salary were cut to the $141,000 a year full-time judges make. With six children, 'I'm not getting rich off this,' said Damian G. Murray, 56, who held nine municipal court judgeships in Ocean County last year at a combined salary of $271,332. He now presides in eight courts. He was the second-highest paid multiple jobholder in the state in 2004...." More (Courier-Post 07.17.2005). Comment. One is tempted to say, "Only in New Jersey." It gets curiouser & curiouser: Judge Judy is the highest paid judge in the world, at $25 million a year. (More)

Rehnquist's health - how much are we entitled to know? "Is it ethical for the head of one of the three branches of our federal government to keep the public from knowing details of his serious medical disorders? Should a distinction be made between disorders that are purely physical versus those that are reasonably likely to affect his judgment (speaking purely hypothetically, a hip replacement versus growing memory loss)?" These & other questions are asked by Amy Ridenour in her National Center blog entry for July 16. Comment. I'm not troubled by Rehnquist's decision not to disclose more than he has about his condition. He's only one of nine members of the Court (admittedly first but first among equals) & the Court has proven over the years quite able to function as an institution with all manner of members having all manner of problems. See, e.g., Loren P. Beth, Justice Harlan and the Chief Justiceship, 1910 (Supreme Court Historical Society Yearbook 1983) (suggesting that the problem at the time was not the age or poor health of some of the court's members but the weakness overall of its membership). Moreover, members of the court seem able to bring pressure on individual colleagues to resign when the time is ripe (witness Chief Justice Hughes' little talk with Justice Holmes). I am troubled by the press camping outside the Chief Justice's house & peppering him with questions & taking/publishing pictures of him in a weakened condition. It shows a lack of proper respect for him as a judge and for his right to personal privacy at home, the same each of us has a right to enjoy. It's as simple as that.

The debate about swearing on the Quran/Koran. "At the 1788 ratification debate in Hillsborough [NC], one opponent noted the Constitution's ban on religious tests for office and asked 'how and by whom they are to swear, since no religious tests are required -- whether they are to swear by Jupiter, Juno, Minerva, Proserpine, or Pluto.' [James] Iredell replied, 'It was long held that no oath could be administered but upon the New Testament, except to a Jew, who was allowed to swear upon the Old. According to this notion, none but Jews and Christians could take an oath; and heathens were altogether excluded. At length, by the operation of principles of toleration, these narrow notions were done away. Men at length considered that there were many virtuous men in the world who had not had an opportunity of being instructed either in the Old or New Testament, who yet very sincerely believed in a Supreme Being...In regard to the form of an oath, that ought to be governed by the religion of the person taking it.'" From an excellent opinion piece by Ed Williams in the Charlotte Observer (07.17.2005). Earlier entry: May a witness in court swear on any old book?

Anna Quindlan: Supreme Court as 'last bastion of dignity.' "[The U.S. Supreme Court] has somehow remained a bulwark in a nasty world of inexorable lobbying, knee-jerk anti-intellectualism and self-serving politicking. America's basic insurance is tripartite government, spreading power around: the executive, the legislative, the judicial. The president, the Congress, the Supreme Court. Only the last has maintained a form and a function that merit respect. Its nine members do not press the flesh at picnics. They do not solicit campaign contributions. They accept accountability. They are the last bastion of dignity in our sullied system...." More ("Keeping the Robes Clean," Newsweek 07.25.2005 issue).

The books in a nominee's library. "As Professor Chafee remarked concerning the opposition to the appointment of Mr. Hughes as Chief Justice, it is less revealing to examine the list of clients in the nominee's office than to investigate the books in his library." Paul A. Freund, "Umpiring the Federal System," 54 Columbia L. Rev. 561, 574 (1954).

Harvard Law prof to replace O'Connor? I read a piece the other day suggesting no Massachusetts judges should wait by the phone to get a call from President Bush to replace Justice O'Connor -- because of Massachusetts' "liberal" reputation [If you're a judge from Massachusetts, don't expect a call from the President, Lowell Sun 07.11.2005]. But then I saw a piece by David Brooks on the op/ed page of the NYT suggesting to Bush he consider appointing not a Massachusetts judge but Mary Ann Glendon, a Harvard Law professor [Mr. Bush, Pick a Genius, 07.14.2005]. I beat him to it. In 2001, before 09.11, I posted this piece about her on my BurtLaw's Law & Everything Else blawg:

Two recommendations.

a) "Contingent fees do provide many people with access to justice, but sometimes the fee is so large that the lawyer becomes the real party in interest. Intelligent use of media opportunities can advance a client's cause, but many lawyers who seize them appear to be on personal ego trips. Corporate lawyers have complex loyalties, but many seem more concerned to satisfy the company managers who hire and fire lawyers than to protect the interests of scattered shareholder- owners." From Legal Ethics - Worlds in Collision, by Mary Ann Glendon, in First Things (A Journal of Religion and Public Life) (March 1994). This article is an excerpt from Professor Glendon's contemporaneously-published A Nation Under Lawyers - How the Crisis in the Legal Profession is Transforming American Society (1994), which I highly recommend.

b) I not only recommend the book, I recommend her. Specifically, I was asked who I thought would make a good first-pick by "the W" when the first vacancy on the U.S. Supreme Court is announced. Her name came to my mind first. Glendon is the Learned Hand Professor of Law at Harvard University Law School, author of numerous articles and books, and oh so level-headed. BTW, she does her own work.

c) Other writings of Glendon available online include: i) Review of Witness to Hope; The Biography of Pope John Paul II, by George Weigel; ii) Opening Address On Behalf Of The Vatican Delegation At The UN Conference On Women In Beijing, China, September 5, 1995.

Department of appropriate witness attire. "Film actor Mansoor Ali Khan was hauled by a magistrate in George Town, on Friday, for turning up in the court [to appear in connection with a case wearing] a police uniform, straight from the shooting of a film in which he is acting as a police inspector...." More (New India Press 07.16.2005).

Marshal's weapon 'goes off' in federal courthouse in GA. "Scott Westmoreland, of Duluth, Ga., was in the hallway [in the federal court building in Augusta] to answer before Magistrate Judge William Barfield to a traffic ticket issued to him while he was at Fort Gordon visiting his son. 'There were 10 or 12 of us standing for several minutes,' he said. 'One of the marshals said, 'Don't be leaning up against the wall.' As soon as I leaned forward and turned to the right, a gun went off. I turned to the lady behind me and saw a puff of blue smoke,' Mr. Westmoreland said. Mr. Westmoreland, who was wearing a yellow golf shirt at the time, said the bullet went through his shirt under his left armpit...." More (Augusta Chronicle 07.16.2005). Comment. That'll teach them not to lean against the wall in a federal courthouse.

Those shady courthouse hangers-on. "Many less educated people are being cheated by so-called middlemen outside Dubai courts. Specifically targeting the Asians, these crooks stand near the gates of the court and lure people either by promising them a very good lawyer to take up their case or by assuring them a quick end to their cases, and charge them quite a good sum against their 'services.' Advocate Abu Baker said that these middlemen are cheating people, especially the less educated Asian labourers, who do not know the Arabic language or the court procedures...." More (Khaleej Times 07.16.2005).

Lawyer charged with trying to intimidate judge. "A former Oak Harbor, Ohio lawyer appeared yesterday in a Cleveland courtroom to face charges that she and an associate tried to intimidate a judge who has been handling civil and criminal cases involving her. Elsebeth Baumgartner, 50, was arraigned in Cuyahoga County Common Pleas Court on a 14-count indictment that accuses her of using e-mail messages and legal filings to try to coerce favorable rulings from Richard Markus, a retired judge from Cuyahoga County...." More (Toledo Blade 07.16.2005).

Judge under investigation gives staff the silent treatment. "Three months ago, the state Judicial Conduct Board began an investigation into allegations that Pleasant Hills District Judge Mary Grace Boyle was using her office and staff to conduct her re-election campaign in violation of the state Code of Judicial Conduct. When Boyle beat two opponents in the primary election a few weeks later, the atmosphere in Boyle's office turned decidedly sour after she learned her office staff had talked to a state investigator. Boyle has refused to talk to the staff and has instead communicated with them by writing notes...." As a result, the presiding judge has transferred two of the judge's three staff members; the third, her sister-in-law (hmmm), is remaining with her. More (Pittsburgh Post-Gazette 07.16.2005).

Ghanian judges accused of conspiring to steal court funds. "An Accra High Court on Friday fixed July 27 for the hearing of the case in which two Judges and a Court Registrar have been accused of conspiring to steal 115.18 million cedis. The money was part of interest that accrued from money paid to the Ketu High Court at Denu by the Great Lakes Company...." More (Ghana Web 07.15.2005).

Board reprimands judge for DWI. "The Minnesota Board on Judicial Standards on Friday publicly reprimanded Hennepin County District Judge Regina Chu for drunken driving...." More (Minneapolis Star-Tribune 07.16.2005). Earlier entry.

Top judge retires. "Lord Cullen of Whitekirk, the senior judge in Scotland and the man who led the inquiries into the three worst disasters of modern times, is stepping down from office...." More (The Scotsman 07.16.2005).

Spence says feds fooled judge to get arrest warrant. "Federal agents intentionally deceived a judge to obtain a warrant to arrest a Portland man who was incorrectly linked to terrorist bombings in Spain, the man's attorney told another federal judge Friday. 'They're not telling the truth,' said Gerry Spence, the lead lawyer representing Brandon Mayfield, who was arrested in May 2004, two months after bombs ripped through commuter trains in Madrid, killing 191 people...." More (UK Guardian 07.16.2005). Comment. It's not nice to fool Mother Nature or a judge.

When a judge is in contempt of court. "A federal appeals court has upheld a contempt finding against a Jefferson Davis Parish judge [Wendell Miller] accused of violating an order to stay away from a former secretary [Heather Viator] who sued him for sexual harassment...." More (New Orleans Times-Picayune 07.15.2005).

Armored truck crashes into courthouse. "An armored truck Friday afternoon slammed into the Tarrant County Courthouse in downtown Fort Worth...." More (NBC5i 07.15.2005).

American Judicature Society on Sensenbrenner: ignorant, arrogant. "'Our concern is...that this incident is another in a distressingly long series of incidents that demonstrate Mr. Sensenbrenner's ignorance of the proper functions of Congress with respect to the federal judiciary and his arrogance in purporting to speak for the American people when attempting to bully federal judges' Stephen Burbank, chairman of the society's Task Force on Judicial Independence and Accountability, said in a prepared statement...." More (Chicago Tribune 07.15.2005). Earlier story: GOP Rep's interference with individual court cases called into question.

Rehnquist tells grave diggers to put away shovels. "Chief Justice William H. Rehnquist, who has been battling thyroid cancer and persistent rumors that he is about to retire, announced Thursday night that he intended to stay on the Supreme Court as long as his health permitted. 'I want to put to rest the speculation and unfounded rumors of my imminent retirement,' the 80-year-old chief justice said in a statement released by his family. 'I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits.'" More (L.A. Times 07.15.2005). Comment. On June 16 we said, "Some people already have you in the grave, & even more are salivating at the chance of replacing you. Surprise them, don't retire, Bill." See, But will Bill retire?

Bush surprises everyone, picks Rove to replace O'Connor. Some have been wondering if Karl Rove could keep his job as senior adviser to President Bush, given the recent to-do over his alleged role in the revenge leak of a CIA agent's name. If President Bush has his way, the answer is he won't keep his job but will get a new one. There's been speculation lately that Bush might pick a "non-judge" to succeed Justice O'Connor. Today he surprised everyone in two ways, by picking a) a nonlawyer b) named Karl Rove. Noting that former Minnesota Senator Eugene McCarthy said on a number of occasions that if he were elected President he might consider appointing a nonlawyer to the Court, Mr. Bush stated that Rove is "the best nonlawyer in the country." It was no surprise that Bush would pick a Texan (Rove is one by choice, not birth), since it had previously been learned that at least eight Texans were being considered. Earlier it had also been learned that "[Attorney General Alberto] Gonzales, as chief of the Justice Department, and White House lawyer Harriet Miers, a former Dallas corporate lawyer, [were] actively involved in the selection [process]," and that they were "work[ing] closely" with Rove, in our view increasing the likelihood a Texan would be appointed. More (Star-Telegram 06.17.2005). But the oddsmakers favored Gonzales, with no one laying any odds on nonlawyers. Picking one of the pickers is not without precedent. In 2000 Mr. Bush assigned Dick Cheney to pick a running mate for him and Mr. Cheney ended up picking himself. Norbert Rovak, the reporter, who talked with Mr. Rove after the announcement was made, says he said to Rove, "You out-Cheneyed Gonzales." Rove reportedly replied, "I heard that, too." Comment. We found this in our "in" box. We're gullible but we still think it's a hoax. Our guess is it's more likely Bush will pick Tom DeLay or perhaps Rep. Sensenbrenner or maybe Roy Moore.

Man whose crawl up courthouse steps led to ADA suit arrested. "An amputee whose crawl up the courthouse steps led to an important U.S. Supreme Court decision has been arrested on charges of possessing illegal drugs, including some hidden in his artificial leg. George D. Lane, 45, was arrested Sunday morning in a car stopped on a road in rural Polk County. A deputy's report says both car doors were open and Lane was 'laying partially in the car, with his leg laying outside.'" More (Dickson TN Herald, 07.15.2005).

Judge annuls 93-year-old man's marriage - judicial activism? "A Manhattan judge has annulled the marriage of a physician-businessman [Dr. Herbert Hofmann, an Argentine-born multimillionaire]...saying the man did not understand what he was doing when at age 95 he married a woman who was 37 years younger....State Supreme Court Justice Laura Drager said she was satisfied after a hearing [that Hofmann] 'was incapable of understanding the nature, effect and consequences of getting married.' Despite Drager's ruling, Hofmann, now a Swiss citizen, and Genevieve Pignarre, with whom he has had an on-again, off-again intimate relationship for 35 years, are living together in Paris...." According to the story, in the Boston Globe (07.13.2005), shortly after the two were married, in NYC in 2003, a friend of Hoffman's petitioned to be named guardian & then asked that the marriage be annulled. It appears that despite the fact that the marriage now is legally deemed not to have occurred, N.Y. law permits Pignarre to seek equitable distribution of assets. Comment. It's Friday & very hot here in Minneapolis as I read this. For some reason (perhaps the heat has gotten to me), I can't help thinking of that great

Pedigree dog food commercial that shows a number of cute dogs & has the punch line, We're for dogs (there's also one now that says, "We're for pups"). I guess if I could, I'd do a video montage of scenes from Doctor Hoffman's on-and-off-again relationship with the younger Ms. Pignarre, finally showing them getting married, with the punch line, "We're for old dogs & middle-aged pups." I'm not sure what it'd be an ad for -- a cynic might say perhaps for a family-law law firm specializing in pre-nups or maybe for a litigation firm specializing in estate litigation, but I'd be more inclined to say for Levitra. Anything to get that irritating current Levitra ad off the air.

Did judge suspicious of husband abuse her office? "Judge Osnat Alon-Laufer, who serves in the Southern District's Family Law Court, was questioned under caution by the Tel Aviv District Police yesterday on suspicion she ordered illegal print-outs from the Pelephone company. The judge allegedly hired a private investigator to check whether her partner, a senior Prisons Service officer, was having an extramarital affair...Police also suspect the judge of sending an anonymous letter to the head of the Prisons Service about her partner, director of Nafha prison, with phone print-outs attached...." More (Haaretz 07.15.2005). And, see additional report (Haaretz 07.15.2005).

Judge admonished for contacting another judge o/b/o son of friend. "A state panel on Thursday admonished an Onondaga County judge for contacting another judge on behalf of a longtime friend whose son had been arrested and jailed. The Commission on Judicial Conduct said Supreme Court Judge Brian DeJoseph's actions "conveyed the appearance that he was lending the prestige of judicial office in order to influence the judge" to grant his friend's request to have his son released from jail...." More (Newsday 07.15.2005).

The aftermath of the Ten Commandments cases. "A Ten Commandments plaque in a Northampton County courtroom promotes history, not religion, and will stay in place, county judges have ruled...It has hung behind the witness stand in Courtroom No. 1 since 1955. It was presented to the county by the Bethlehem- and Easton-area Jewish communities in honor of the 300th anniversary of Jews coming to America. [The chief judge] said there was no evidence the plaque was presented to promote religion. 'The setting in which the plaque is displayed, a busy courtroom rather than a quiet, meditative environment, suggests that it was not intended for use as a religious object,' he wrote." More (Philadelphia Inquirer 07.14.2005). Comment. We're seeing stories like this one all around the country: judges in local courts "concluding," wrongly, that their Ten Commandments plaques hanging right in their courtrooms somehow can stay -- & they're citing the Supreme Court's decision, in the process showing either they're not very good at reading opinions or they'd rather violate the Supreme Court than offend the locals. I refer the judges to the case of Roy Moore. More & more. And see, 7-day cruise with the chief -- as low as $1,468! (scroll down).

The Woolf & the Falconer. "Lord Woolf seems determined to go down fighting. The Lord Chief Justice had harsh words for Lord Falconer's latest constitutional bombshell - slipped out in a news release yesterday afternoon rather than at a press conference, where he would have faced questions. For the first time, if the Lord Chancellor gets his way, people who have not practised as barristers or solicitors will become judges...." More (UK Telegraph 07.14.2005).

The Gerald R. Ford approach to picking a Supreme Court Justice. President Ford is 92 today, July 14th, so perhaps it might make sense to consider how he went about picking a Supreme Court Justice in his brief term. The following is a brief excerpt, with footnotes omitted, from David M. O'Brien, Filling Justice William 0. Douglas's Seat: President Gerald R. Ford's Appointment of Justice John Paul Stevens (Supreme Court Historical Society 1989 Yearbook):

Justice Harlan Fiske Stone once likened Supreme Court appointments to a "lottery" from a pool of more or less qualified individuals. His close friend, Harvard law professor and political scientist Thomas Reed Powell, was more blunt: "[T]he selection of Supreme Court Justices is pretty much a matter of chance." What they had in mind was how a President's personal politics -- his political associations and friendships -- determine the fate of qualified candidates for the Court. But, the pool of possible candidates also reflects the weight each President gives to (1) rewarding personal and political associates; (2) advancing his administration's ideological or policy agenda; and (3) professional considerations, the legal experience and reputation of possible nominees. Democratic and Republican Presidents, moreover, tend to have different priorities in defining the pool from which they pull their nominees.

President Gerald R. Ford's selection of Justice John Paul Stevens departed from the practices and priorities set by other recent Presidents, with the possible exception of Dwight D. Eisenhower. Like that Republican President he so admired, Ford had little truck with either the personal politics practiced by Democratic Presidents in naming their Justices, or the kind of White House politics calculated (occasionally incorrectly) to advance an administration's legal-policy agenda by means of judicial appointments.

Ford views it as "a mistake [for Presidents] to appoint people to the Court on ideological grounds." This is so not because they may misjudge their nominees or later be disappointed by their appointees once on the Bench. Rather, Ford maintains that it is "improper" for Presidents to have their judicial appointments turn on "ideological grounds," for that denigrates the nominee and the Court. Besides placing a premium on professional considerations, Ford, like Eisenhower, relied heavily on his Attorney General in selecting a nominee whose professional reputation put him outside the pale of partisan political controversy.

The entire piece is worth reading. (More)

Scalia on Senate Judiciary hearings on nominees: O.K. to ask about beliefs? In Say It Loud in The American Prospect (07.12.2005), Jack C. Doppelt argues that "Even Antonin Scalia thinks that judicial candidates should talk about their beliefs." He bases his argument on Justice Scalia's opinion in Republican Party of Minnesota v. White, the free speech case striking down the provision of the Minnesota Code of Judicial Conduct barring candidates in state judicial elections from freely expressing their opinions on disputed legal issues. Doppelt notes that Scalia, speaking for himself & four others, "noted that, according to Minnesota's provision, a judicial candidate could not say, 'I think it is constitutional for the legislature to prohibit same-sex marriage.' He found that preposterous because he could say the very same thing in writings, classes, or opinions up until the very day he's a candidate -- and say it repeatedly after he becomes a judge -- yet somehow it was considered to be a mark of open-mindedness to say it's off limits during the very part of the process when the public can judge what is on his mind...." (More)

Would Justice Scalia approve of polygraph testing of prospective judges? "Legislation has been introduced [in Guam] that would make all future nominees to the benches of both the Superior and Supreme courts submit to a polygraph examination. Senator Adolpho Palacios (D) drafted Bill 168 hoping to make a polygraph exam a pre-requisite for an appointment to the Judiciary. 'It will only strengthen the selection process,' the freshman senator told KUAM News. 'We have to be assured of the integrity and the honesty and the moral turpitude of the person. These are the three ingredients, very essential in a character of a person. I don't anticipate any disagreement because how can anyone disagree with this?'" More (KUAM 07.14.2005). Comment. Why not hook up the nominee while he or she is testifying before the Senate Judiciary Committee? Do it a la Meet My Folks, the reality dating show in which a polygraph operator, Nick Savastano, questioned prospective dates about their pasts & gave a thumbs up or down to signify whether each answer was truthful or not.

A courthouse no grannies would pose nude to save. "The temporary relocation [two years] of St. Paul's federal courthouse, originally scheduled for last month, won't take place until late September, federal officials said this week...In November,

Congress approved the $36.6 million renovation of the federal building at the intersection of Kellogg Boulevard and Robert Street, which will include security upgrades, expanded courtroom capacity and asbestos removal...." More (St. Paul Pioneer Press 07.14.2005). Comment. Back in the early 1970s, the Minnesota Supreme Court, by whom I was employed, moved to the then underused new federal court building (compare & contrast with

the old one, depicted right) for around a year while the court's quarters on the third & fourth floors of the east wing of the capitol were refurbished. The new federal court building is a sad example of courthouse architecture, in my opinion, & unlike the old one ain't worth renovating. Congress would have been better off ripping it down (no grannies would have posed nude to save it) & building a new one -- if (& that's a big "if") a good courthouse architect could be found. Most courthouse architecture these days is fortress-style that must depress the people who work in the buildings & say to ordinary people, "Stay away." Courthouses ought to inspire & welcome. Related item. Fix is in at old courthouse (N.Y. Daily News 07.14.2005).

Annals of judicial criticism: pig farmer blasts judges. "Crowds bemused as pig farmer blasts judges for snub to breed. Pig judges should go back to school to learn the basics of their trade, and stop ignoring minor breeds. That was the stark message from Tamworth Pig Society Chairman, Nick Hunkin, to a crowded arena on the second day of the Great Yorkshire Show, the region's premier agricultural showcase....Mr Hunkin told the large crowds around the ring that it was 'incredible' that in the 22 years of the competition there had never been a Tamworth in the final. 'Judges at inter-breed competitions around the country just do not know the basics of breed characteristics. They spend too much time looking at hams and not at breed characteristics.' As a breeder of both Landrace and Tamworth pigs he can't understand how he can win prizes with the former breed and not the latter. 'It's not as if I look after one breed any different to another. And I am not looking for prizes for myself, we have some superb Tamworths coming forward around the country and they deserve recognition – not to be ignored by judges who don't know the basics of their job.'" More (Yorkshire Post 07.14.2005). Comment. We couldn't agree more. Further reading on the art of judging in different contexts: BurtLaw on Dog Judging, Jam&Jelly Judging, Etc.

Annals of momentous judicial recusals. "Haverstraw. Both village justices have recused themselves from hearing the driving-while-ability-impaired charge against Mayor Francis 'Bud' Wassmer because of the possible appearance of impropriety. Justices Thomas Walsh and Henry Gruffi have advised the court that they would not hear the case. It was sent to County Court, Justice Court Clerk Anissa Slade said last night...." More (The Journal News 07.14.2005).

An American tradition continues in some small towns. "The Marshall Municipal Band will continue its 2005 season Thursday evening on the east side of the [Saline County] courthouse lawn, expecting another large turnout on what should be a pleasant mid-summer night. The concert will start at 7:30 p.m. 'We've been thrilled with the audience response this summer,' said director Kevin Lines. 'This is truly a slice of Americana that makes Marshall a wonderful community in which to live.'" More (Marshall, MO Democrat-News 07.13.2005). Comment. Back in the day, mostly before my time, in my home town of Benson, MN, "they" used to present summer band concerts in Theodore Roosevelt Park, the lovely one-square-block park across 14th St. N. (to the east) from the Swift County Courthouse, both just a block away from the northernmost of the town's two "Main Streets" (Atlantic and Pacific Aves.). These two main business streets in turn were separated the tracks of the main line of the Great Northern Ry. and by the once-lovely (but since diminished by the devotion of much of the green space to automobile parking spots) Railroad Park. No, things don't always get better, and the old ways are sometimes better than the new. [Comment added 10.20.2009.]

And others adapt to a new tradition. "Wood County smokers with business at the courthouse soon will find it less convenient to light up. The county already moved a smoking hut from outside the entrance on the south side of the courthouse in Wisconsin Rapids to a location closer to the street...Gloria Martin, 63, of Wisconsin Rapids thinks moving the smokers away from the door is a good idea. 'I've come here when you had to walk through four or five people to get to the door,' Martin said. 'There's no reason they have to be that close to the building.'" More (Wisconsin Rapids Daily Tribune 07.14.2005).

British Open begins at St. Andrews today. Those who like golf might want to read our earlier entry: S. Ct. Justice is Captain of Royal & Ancient Golf Club of St. Andrews.

Our Motto - "Ridentem dicere verum quid vetat" Loose translation: Does anything prevent telling the truth with a smile? (Horace)

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