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.

How can men in long, flowing gowns uphold ban on gay marriage? The Washington Post reported on Sunday, 09.04.2005 (click here), that when John Roberts was considering pursuing a graduate degree in history, his dad told him, "Real men study law." Bruce Reed posted a humorous mini-essay on this in his Slate blog, The Has Been, yesterday (09.06.2005) titled Real men don't wear robes. Reading it today reminded me of some playful possible headlines some local reporters dreamed up to run (but of course didn't run) in connection with a news report of a Minnesota Supreme Court decision in 1971. That was during my first year (of two years) as law clerk to Justice C. Donald Peterson. There came before the court that year an appeal of a decision by a functionary in Hennepin County District Court in Minneapolis refusing to issue a marriage license to two homosexual men who desired to get married. The court's decision, Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of federal question, 409 U.S. 810 (1972), is reproduced here. Justice Peterson's unanimous opinion for the then seven-member all-male all-heterosexual (I believe) court held that 1) the Minnesota legislature, in using the term "marriage" in the statute governing marriage, undoubtedly used the term in its commonly-understood meaning, as "the state of union between persons of the opposite sex," and 2) the statute, as interpreted, "does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution." (For more, including a position paper I wrote & published on the issue of same-sex marriage during my campaign in the Republican primary for Minnesota's Third Congressional District in 2004, click here.) In any event, after the decision was filed, a reporter for one of the metro dailies dropped off a number of the witty headlines they'd dreamed up. One I remember went something like this: "Seven men in long, flowing gowns uphold ban on homosexual marriage."

Former NFL player is Illinois' top judge. "Former Chicago Bears football player Robert Thomas has begun his tenure as the Chief Justice of the Illinois Supreme Court...Thomas was chosen by his fellow justices in May to serve as the head of the court...." More (KWQC 09.07.2005). Comment. Alan Page, who some believe is the best justice on the Minnesota Supreme Court, no longer is the only NFLer on a state supreme court, though some might argue Thomas, a "mere" place-kicker, was not a true rough-and-tumble football player, which Page, a defensive lineman with a bent finger to prove it, was. Page, the pro football Hall of Famer, is a former Bear, too, but played his best football with the Vikings, where he was league MVP one year. Thomas was picked by his fellow justices for a three-year term. It is not always clear from a state's constitution who gets to pick the chief justice. Arguably in some states that have assumed otherwise, the justices of the supreme court could decide amongst themselves who is chief. Another interesting question is the extent to which the associate justices may strip a chief justice of many of his/her duties -- say, to take a far-fetched, unlikely example, a chief justice who on his own installs a Ten Commandments monument in the lobby of the judicial center in the middle of the night.

'Greens queen now judge.' That's the headline but, no, it's not what you think -- a gay fellow was not picked to be a common law judge. Instead, the headline tips one off to the fact that "Margaret Jordan, winner of last year's turnip green cook-off at Bradley Academy's Heritage Festival" will serve as a judge at this year's festival "10 a.m.-5 p.m. this Saturday at Bradley Academy Museum and Cultural Center" in Murfreesboro, Tennessee. "To enhance her presentation last year, Jordan entered her greens along with a side of hot-water cornbread, banana pudding and boiled eggs. 'They all go good with turnip greens,' says Jordan." More (Murfreesboro Daily News Journal 09.07.2005). Comment. Talk about culturally deprived, but I'm not sure I've ever eaten turnip greens. According to the article, "Jordan acquired her cooking skills at a young age. Her family lived on a farm and the woman who owned the farm used to go get Jordan and bring her in the kitchen so she could watch her cook." I remember a great judge saying that he got interested in the law in a similar way -- by hanging around his dad, who was a lawyer. A local doctor and "turnip green connoisseur," George Smith, who organizes the festival, is quoted as saying, "I remember my mother picking the greens and slapping them on the back of her hand...You have to master the art of taming the green, as I call it." Metaphors, respectively, for what obstetricians & judges do?

Courthouse four-day work week on horizon? "Seeking to save county coffers from increases in post-Hurricane Katrina fuel and energy costs, Morgan [County, AL] officials pondered Tuesday opening the courthouse doors only four days a week...." More (Decatur Daily 09.07.2005). Comment. I'm guessing we'll be seeing lots of stories like this.

How to try a complicated 'one-year case' in eight months. "Mr Justice Mackay made clear that he would not brook delays. Reassembling seven prosecution and defence teams several times a day can be a lengthy process. But the the High Court judge adopted what he called 'the rather blunt tactic' of walking into the court and sitting down at the appointed time. If counsel were not present, they had to take their places with proceedings under way. The court sat 'Maxwell hours' -- 9.30am to 1.30pm -- so called after the timetable adopted in the 1990s trial of the Maxwell brothers, designed to allow legal argument in the afternoons when jurors could be released...." More (Financial Times 09.07.2005). Comment. In March of this year the Lord Chief Justice of England and Wales released a detailed protocol dealing with the control and management of complex trials. The protocol includes a discussion of the pros and cons of use of "Maxwell Hours" in a particular case ("It may often be the case that a maximum of one day of Maxwell hours a week is sufficient; if so, it should be timetabled in advance to enable all submissions by advocates, supported by skeleton arguments served in advance, to be dealt with in the period after 1:30 pm on that day.").

Latest on controversy in Canada over sharia law. "An upcoming international demonstration designed to pressure Queen's Park into rejecting shariah courts continued to grow yesterday, even as the premier promised any decision on a faith-based court system will not jeopardize women's rights...Critics say Ontario has become the target of an international political movement by extremists to entrench Islamic law in Western democracies...." More (The National Post 09.07.2005).

Ought a judge get 'one bite'? Not really. But the Phillipine Supreme Court "has reinstated Judge Arnulfo Cabredo to the service based on the appeal that it was the first time his credibility in fulfilling his job was questioned" in his 33 years of government service. More (PIA 09.07.2005).

Why bother with judges? -- extrajudicial executions in Nigeria. "Legal Defense and Assistance Project (LEDAP), a non-governmental organisation, has said that no less than 2, 987 were reported killed in extra-judicial, arbitrary and summary executions in the nation between January and December 2004...." More (Daily Independent 09.07.2005).

Annals of specialized courts. "Delhi government has assured BSES that special courts and special police to curb power theft would be in place within 45 days. BSES CEO J P Chalsani told Newsline today that power theft was one of the main reasons why distribution losses could not be curtailed. He said this had led to the power tariff hike...." More (Express India 09.07.2005).

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

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

The Dersh on Rehnquist -- a heckler at the memorial service? "My mother always told me that when a person dies, one should not say anything bad about him. My mother was wrong. History requires truth, not puffery or silence, especially about powerful governmental figures. And obituaries are a first draft of history. So here’s the truth about Chief Justice Rehnquist you won’t hear on Fox News or from politicians...." This piece, which Professor Dershowitz posted within hours of the Chief's death and which dredges up some old stuff on Rehnquist and argues that Rehnquist was a result-oriented politician wearing a robe, is the "most-e-mailed story" at Yahoo News as of this morning, 09.06.2005. More (Alan Dershowitz Blog, Huffington Post 09.04.2005). Comment. "The Dersh" (Alan Morten Dershowitz) was my first year criminal law teacher at Harvard Law School during the 1964-65 term. He was then a 23-year-old first-time teacher, a Yale Law School graduate who had clerked for Justice Arthur Goldberg, whose son was in my class. I like The Dersh and don't doubt that I owe something to him: for nearly 30 years I was paid good money by the Minnesota Supreme Court for, among other things, maintaining an expertise in criminal law and procedure, an expertise for which the Dersh laid the foundation. Those who know Felix Frankfurter only as a "conservative" judge may find it hard to believe that for several decades before he became a member of the USSCt he regularly wrote columns (for The New Republic) and issued pronouncements that bear somewhat of a resemblance in style and substance to The Dersh's columns and pronouncements. The Dersh's style, it seems to me, is that of an intellectual provocateur and one of his favorite tools is overstatement. If one bears that in mind and doesn't get overly defensive just because one's initial inclination is to disagree with this or that provocative assertion, one can learn much from what he says. In any event,The Dersh -- "The Whirling Der(vi)sh"? -- is at it again in the above-linked piece. Like Frankfurter, he doesn't subscribe to the standard that if one has only bad things to say about the dead, one should keep one's mouth shut -- what Frankfurter referred to once as "the flabby standard of de mortuis nil nisi bonum." F. Frankfurter, "Tribute to Edward H. Warren," 58 Harv. L. Rev. 1128 (1945). [The phrase is attributed by Diogenes Laërtius, biographer of the Greek philosophers, to Chilo. The phrase translates loosely as "One shouldn't speak ill of the dead." For an interesting poem with the Latin title, by Richard Realf (1834 - 1878), click here.] My quarrel is less with The Dersh's speaking his mind than with his cocky averment that what he has to say is "the truth."

Contrast with the eulogy by another Harvard Law prof. Prof. Larry Tribe, the constitutional law scholar, who was an ideological foe of sorts of Judge Rehnquist, has a terrific piece in today's NYT op/ed section titled Gentleman of the Court:

In more than 30 oral arguments over the past 25 years, I never saw him ask questions, as his colleagues sometimes do, to hide the ball, parade his brilliance, show up a colleague, or play to the galleries. When he thought you were approaching a dead end, he told you so, as he did in 1997, when he said I wouldn't "find much disposition on the court to enlarge on" a precedent on which one of my arguments rested. Taking the hint, I shifted to the other pillar on which my case stood (and won the case).

A typically busy day for a typical Chief Justice. "So you thought the chief justice of the United States spent all his time dealing with weighty legal issues. Wrong. Here are a small number of the 53 duties spelled out in federal law: Approve appointments and salaries of some court employees. Direct the publication of Supreme Court opinions. Approve rules for the Supreme Court library...." In other words, etc., etc. More (Newsday 09.06.2005). Comment. Just listing job function after job function makes any job seem tougher than it is in practice. Read on....

But do the justices really work that hard? Shortly after the November elections in 2002, court watchers were speculating on whether Rehnquist and/or O'Connor would retire now that President Bush had a Republican Senate. The incomparable Dahlia Lithwick, suggesting that there was no real need for either of them to do so, stated:

[T]hese people do not exactly work coal miner's hours. The justices of the high court listen to arguments for 12 hours a month, six months a year -- the functional equivalent of three days down a coal mine. The rest of their time is devoted to deciding which meager 80 cases they'll hear all year, how they'll vote, and writing opinions -- for which a good deal of the research and drafting is done by law clerks who never sleep or eat. In sum, a Supreme Court justiceship is a dream job for anyone over the age of 80 or under the age of 7. How else could Clarence Thomas be both working full-time and writing his memoirs? Almost five years ago, my colleague David Plotz assessed the chief justice and tried to answer the speculation raging back then as to whether a Rehnquist retirement was imminent. His conclusion: Why would he possibly want to retire? "Every year he has less work to do. He's made sure of that. The efficient justice arrives at the court around 9 and leaves by 3 -- what other job in Washington has such sweet hours?"

Dahlia Lithwick, Chief Justice Roulette -- Handicapping the Supreme Court shuffle (Slate 11.25.2002). No wonder they have so much time for long vacations, writing books, making public appearances, giving speeches on whether the Constitution is living or dead, engaging in "judicial outreach,"etc. Is Lithwick right? I believe she is and that what she says about U.S. Supreme Court Justices applies as well to state supreme court justices in many states.

Lithwick on why would anyone want to be Chief. On 11.16.2004, shortly after the public learned of Chief Justice Rehnquist's illness & people began speculating about possible replacements (no one mentioned Roberts), Lithwick posted a piece titled Talk About Your Overrated Job -- Why would anyone want to be Chief Justice? In it she said:

The formal powers of the chief justice don't sound all that enticing: He or she is essentially like a glorified Alice on the Brady Bunch -- getting to do all the administrative grunt work with which no one else would possibly want to be bothered. He's the administrator of the court and manager of the court building. He serves on tedious collectives such as the Judicial Conference -- an entity described as the "board of directors" for the federal judiciary. On top of all that, he has to act as harried class secretary -- recording all the goings-on at case conferences, tracking who voted for what, and how dozens of opinions will be disposed.

There is, of course, a big qualifier, in Lithwick's view: "The trick to understanding the chief justice's real role in shaping a court has to do with the myriad subtle ways in which any savvy administrator can effect vast policy changes...." Read on.

Roberts knows how not to be Chief. Linda Greenhouse points out that Roberts was law clerk to Rehnquist when he was an Associate Justice & Warren Burger was the Chief. She suggests Roberts learned then, from watching Burger with Rehnquist, how not to be Chief:

Robert M. Weisberg, who clerked during the same term for another justice, said Monday that he would never forget walking down a corridor at the court and coming upon Justice Rehnquist and his law clerks, who were all peering through a window into an inner courtyard, where Chief Justice Burger was supervising preparations for a reception. "It was very funny to see Rehnquist and his clerks just spontaneously cracking up at the sight of the chief justice directing the proper placement of the silver," Mr. Weisberg said.

More (N.Y. Times 09.06.2005). Former Rehnquist law clerk Richard Garnett, in a piece in Slate the other day, wrote: "He would never have tolerated from any clerk a snide remark about a justice." More. But Greenhouse, in her preface to the Weisberg anecdote says Rehnquist "freed, even encouraged, his law clerks to poke fun at what they saw as [Burger's] pomposity and penchant for self-aggrandizement." If true, it was, in my opinion, a most injudicious trait -- even though, unfortunately, the trait is one shared by many, many (but not all) appellate judges.

Judges lobby Texas governor to sign pay raise. "Bill Bosworth of Cleburne was among more than 50 judges who wrote Perry, lobbying him to sign the bill into law. 'Absent the increase, I do not know that I will be able to continue the sacrifice,' Bosworth wrote in an Aug. 15 e-mail. He makes $108,000 a year, about $40,000 less than [he says] he could make as a private lawyer...The bill proposes that salaries for district judges increase 23 percent to $125,000 as of Dec. 1, with justices on the Court of Criminal Appeals and Texas Supreme Court seeing 33 percent increases to $150,000...." More (Denton Record-Chronicle 09.06.2005). According to the story, the bill also would significantly increase judges' pensions. Comment. It may or may not make sense for Texans to increase judges' salaries. But the argument -- which judges always tirelessly trot out when they want a pay raise -- that some lawyers make twice as much as they do, by itself, is no more persuasive to me than that Judge Judy makes $25 million a year (which she reportedly does) or that Tiger Woods makes more dough than the judicial mind can comprehend. For the flaw in this logic and for the kind of approach I recommend, see, I could be making lots more if I were Michael Jordan. Update. Perry signs bill (Denton Record-Chronicle 09.08.2005).

Former Texas Chief Justice joins Houston law firm. "Judge John Hill, Jr., a former Chief Justice of the Supreme Court of Texas and Attorney General of Texas, has joined the Houston office of Winstead Sechrest & Minick P.C. as a Shareholder in the Litigation Section. He is the third judge hired by Winstead to the Appellate Practice Group, joined by former Texas Supreme Court Justice Craig T. Enoch and recently retired Chief Justice William G. (Bud) Arnot...." More (Press Release, PRNews 09.06.2005). Comment. In 2000 I wrote a detailed essay arguing against mandatory retirement of judges, an essay that continues to be one of the most-visited on my website BurtLaw's Law And Everything Else. In it I said, inter alia, that "it turns out that mandatory retirement is forcing the retirement of the wisest, most experienced and, in many cases, most productive, most reliable, even healthiest judges." Indeed, I could have added to the various things I said in support of that statement that it is not uncommon to read stories like the above one. Many mandatorily-retired judges in fact are getting hired by the best law firms and many of them work productively even into their 80's. In other words, the magical marketplace, which is not known for its sentimentality, suggests that one of the major underpinnings of mandatory retirement is false. See, BurtLaw on Mandatory Retirement of Judges.

Annals of courtroom technology. "Horizon Technical Consulting announces the release of the StenoCast X7 Courtroom model, specifically designed for use in any courtroom utilizing the services of a court reporter writing realtime. The StenoCast X7 allows for up to seven clients (for example, the judge and six attorneys) to receive a court reporter's wireless realtime transcription, encrypted and password protected, anywhere within 300 feet of the X7 unit. The X7 Courtroom model will be officially unveiled at the Courtroom Technology Conference -- CTC9 -- held in Seattle on September 13-15, 2005...." More (Horizon Press Release, PRWeb 09.06.2005).

Bush picks Roberts to succeed Rehnquist, his former boss, as Chief. "President Bush made the announcement in the Oval Office with Judge Roberts at his side, saying that with just four weeks left before the Supreme Court reconvenes, it was in the interest of the court and the country to have a chief justice on the bench on the first full day of the fall term...." More (N.Y. Times 09.05.2005). Comment. With the advice of his top advisers still ringing in his ears ("It's important to get down to New Orleans and act Presidential before they start burying people"), the President decided it would make "good Texas sense" to show he's on top of everything ("Not just the disaster stuff, Karl") by picking Rehnquist's replacement before they buried him.

Court glare on girl selling & police snoring. "Chief Justice of Calcutta High Court V.S. Sirpurkar and Supreme Court judge Y.K. Sabharwal today expressed concern over the alarming rise in girl trafficking in Murshidabad and the laid-back attitude of police. As part of a mobile court programme -- a central initiative to bring justice to the villages -- the judges came [to Behrampore] and met a group of 20 girls, who were sold off to pimps by their own family members... Nightmares -- being sold off [to brothels] by their own people and then denied right to lodge complaints by police officers -- were narrated one after the other....." More (The Telegraph 09.05.2005). Comment. One can never overestimate the capacity of human beings for evil, and one should never assume that those entrusted with governmental authority, even here in America, will use it effectively to aid the poor and the suffering. Clarence Darrow said, "There is no justice in or out of court." There are times I think he was right.

20 cases in which 'foolproof' fingerprint evidence misled judges, juries. "Simon Cole, a professor of criminology at the University of California, Irvine, and critic of fingerprint analysis, recently identified 20 known cases of fingerprint misidentifications in the United States and United Kingdom dating back to 1918, some of which resulted in wrongful convictions...." More (Boston Globe 09.05.2005).

Can I get judicial continuing education credits for it? "The Beer Judge Certification Program is the primary source of education and evaluation for beer judges. It is a non-profit organization that “encourages the advancement of education of people who are concerned with the evaluation of beer and related fermented products." It's a 10-week course. More (BellaOnline 09.05.2005).

The 'World Jurist Association' meets in Beijing. "China's chief grand judge Xiao Yang said Sunday in Beijing that he hoped a farsighted declaration would be adopted at the 22nd Congress on the Law of the World...." More (People's Daily 09.05.2005). Comment. I hope no American judges wasted taxpayer dollars by going to this great gathering in the Birthplace of Liberty & Justice.

Dahlia Lithwick on Bill Rehnquist. "[A]s Rehnquist rose to chief and saw his pet causes -- including federalism, strict adherence to the views of the framers, and judicial restraint -- shift from marginal theory to the court's polestars, he didn't do what Antonin Scalia has done: He didn't keep using his writing as a showcase for his own brilliant, persuasive ideas. Indeed his opinions became increasingly anorexic -- thinner and pale. He had no need to shame his colleagues or flaunt his genius. He saw that he had won his wars and moved on...." From a typically-excellent piece in Slate on 09.04.2005 by Dahlia Lithwick titled What Rehnquist didn't do.

Other essays on Rehnquist:

a) Richard W. Garnett (one of the many former Rehnquist law clerks), Tennis and Top Buttons, Remembering William H. Rehnquist (Slate 09.04.2005) ("Chief Justice Rehnquist liked to put together friendly brackets and pools for the NCAA tournament, the Kentucky Derby, and the bowl games. One day, just after the 1996 election, he passed down to me a note from the bench. I assumed he wanted a law book or a memo, but instead he asked me to find out what was happening in one of the not-yet-called House races that was integral to our inter-chambers contest.").

b) Walter Dellinger (Acting Solicitor General under President Clinton), William H. Rehnquist, the man who devised the natural law of federalism (Slate 09.04.2005) ("Rehnquist could be gracious in social settings...On the bench, he was another story -- a most fearsome and incisive inquisitor. His questioning was sharp, and usually fair, but at times unnecessarily abusive to inexperienced advocates....").

One new member of a supreme court = a new supreme court. "'Every time a new justice comes to the Supreme Court, it's a different court,' Justice Byron R. White liked to say...'Generally, when a new member comes into a group, old members have established roles, and no one knows exactly where the newcomer will fit in,' said Professor [Gerald L. Wilson, whose book, Groups in Context: Leadership and Participation in Small Groups, is now in its seventh edition. 'People are likely to be kind of tentative and guarded, feeling each other out. That's not a scientific term, but that's exactly what goes on.' This adjustment period, referred to as the 'orientation phase,' lasts until new group roles emerge...." This is from an excellent piece by Linda Greenhouse in the Sunday New York Times. I urge everyone interested in group dynamics & the supreme court to read it. More (N.Y. Times 09.04.2005).

Chief Justice William H. Rehnquist dies, age 80. "[Gilbert & Sullivan's operetta] Iolanthe...inspired...Rehnquist to modify his basic black judicial robe by adding four gold stripes to each sleeve, copying the costume worn by the Lord Chancellor in a local production of the operetta. Since the chief justice had never paid any noticeable attention to his attire, the new adornment was startling. Where some saw self-aggrandizement, others saw the sartorial manifestation of a wry sense of humor...." More (N.Y. Times 09.04.2005). Comment. The NYT's obits, typically filled with telling details, like this, have won a couple or more Pulitzer Prizes, deservedly so. This rather typical obit, prepared & updated over the years by Linda Greenhouse, shows why.

Judges refusing to hear abortion petitions. "A pregnant teenager went to the grand and imposing county courthouse here [in Memphis] early in the summer, saying she wanted an abortion. The circuit court judge refused to hear the case, and he announced that he would recuse himself from any others like it. 'Taking the life of an innocent human being is contrary to the moral order,' the judge, John R. McCarroll of Shelby County Circuit Court, wrote in June. 'I could not in good conscience make a finding that would allow the minor to proceed with the abortion.'" More (N.Y. Times 09.04.2005). Comment. And, as we have been reading recently, there are a number of pharmacists around the country, many in small towns, who have taken upon themselves the authority to refuse to dispense birth control prescriptions. Legislatures ought to expressly provide the sanction of loss of license for such abuse of the pharmacist's role, which is to ministerially carry out the doctor's lawful order. Judges who engage in "judicial passive aggression" by refusing to exercise the judicial function with respect to abortion petitions, or any other class of cases, ought to be removed from office. But before that, if they have the courage of their moral convictions, they ought to resign -- as any judge ought to do if he cannot or will not do the job he was hired to do. Passive resistance is not a valid moral choice for those in positions of authority and power. It is a doctrine for those without power to be used against those in power. As in the case of civil disobedience, passive resistance has no moral force if the resister is unwilling to accept the usual lawful consequences of the particular act of resistance -- e.g., in the case of an unlawful act of trespass, a petty misdemeanor or misdemeanor conviction and appropriate sentence. Thoreau did not whine that he had to spend a few hours in jail because he civilly disobeyed a valid law. See, Henry David Thoreau, Civil Disobedience (1849). We trust that Senators will ask Judge Roberts his views on this very issue during the hearings on his nomination.

TV shows having effect in courts. "The popular television show [C.S.I.] and its cousins that currently dominate the ratings are driving prosecutors wild. They claim jurors are believing what they see on TV is reality and are holding the prosecution to a higher burden of proof...." In one case cited in the article, jurors explained their acquittal in what prosecutors believed was a strong case for a rape conviction by saying they wanted the soil in the victim's cervix tested to see if it matched the soil in the park where the rape allegedly occured. More (Peoria Journal Star 09.04.2005). Comment. Trial lawyers have always had to anticipate irrational thinking by jurors. I sat as a juror in a case in which the initial conversation during deliberations centered on the plaintiff lawyer's suit, which didn't fit their preconceptions of what a lawyer's suit ought to look like, & the fact a button was missing. Smart trial lawyers include statements in closing argument designed to guard against such things. Trial judges are not without authority to craft fair & balanced instructions (irrational jury thinking can hurt either side) to serve this purpose also.

Restored historic small-town courthouse rededicated. "Lamar County [Texas] paid tribute to its historic courthouse Saturday during rededication ceremonies for the restored 1917 building -- constructed on the same North Main Street foundation where its predecessor stood from 1894 until the Paris Fire of 1916... Judge Scott McDowell of the 62nd District credited the courthouse as being 'the heart and soul of the community and the foundation of freedom enjoyed in this country today.'" More (Paris News 09.04.2005). Comment. I worked for over 20 years in Cass Gilbert's wonderful Minnesota State Capitol, where the Minnesota Supreme Court was housed before it moved to a nearby fortress-style courthouse. The capitol, by the way, is celebrating its 100th birthday this year. One day back in the 1970s I was giving a puisne judge from Rhode Island, who was visiting the state supreme court, a personal tour of the building. In the rotunda I surprised myself by saying, "This building is one reason we have clean government in Minnesota. It seems inconceivable to me that anyone elected to serve the people in this inspiring building could do anything but try his best to do right by the people." I still feel that way. We applaud the folks in Paris, Texas & environs for restoring the 1917 courthouse rather than ripping it down, as people elsewhere have done.

When populists revolt...over judicial pay hikes -- herein of e-mail addresses. "Lewis Kish was having trouble getting a message to one of his elected officials. Kish, 68, a retired Butler County engineer, asked for my help last week in locating an e-mail address for Pennsylvania Supreme Court Chief Justice Ralph Cappy...Cappy 'has an e-mail address, but it's not for the public,' [Cappy's secretary] said. 'Why not?' I asked again. 'The public elected him, didn't it?' 'I think he would be inundated with e-mail if we gave it out,' she said. 'A lot of people phoned after his phone number was printed in the paper.' She either did not recall, or was too polite to mention, that I was the one who published Cappy's number in a July column...." More (Pittsburgh Tribune-Review 09.04.2005). Comment. There is no valid reason we can think of why judges' government e-mail addresses (or that of government employees) ought to be private or semi-private. Judges can set up their government e-mail accounts to automatically reply to senders that any e-mail they send to judges do not satisfy any filing requirements & that they will not necessarily receive replies.

Did judge berate, belittle, shove & mock? "Complaints filed with the [North Carolina] Judicial Standards Commission describe [Judge Evelyn] Hill berating and belittling lawyers, shoving a law firm's employee in an elevator, mocking a witness and making racially questionable remarks...." More & more (Tuscaloosa News 09.03.2005).

FLA's Chief Justice orders energy conservation measures. "Florida's chief justice [Barbara J. Pariente] has issued a memo to all state courts, requiring them to conserve electricity and gasoline...Court committee meetings and court hearings should be done by conference call or videoconference, wherever possible. Travel plans for judicial officers and court employees should be evaluated and adjusted appropriately...." More (Orlando Business Journal 09.03.2005).

Grand jury indicts court employee for taking bribe. "[A federal] grand jury indicted Jennifer Michelle Garrison, a [Kentucky] pretrial services officer, on one count of conspiracy to distribute marijuana, one count of conspiring to impede the investigation, and one count of 'corruptly' trying to obstruct justice by taking a payoff. The indictment said Garrison took $2,000 in return for using her position to get a judge to lower bond for a member of the drug ring so he could get out of jail...." More (Lexington Herald-Leader 09.03.2005).

More on troubles of self-described 'Law and Order Judge.' "Nassau prosecutors have launched a criminal investigation into the campaign fundraising of District Court Judge David Gross, already facing federal charges of money laundering and conspiracy. The jurist, who called himself a 'Law and Order Judge,' faces the new probe because of comments caught on wiretaps in which he allegedly bragged to an undercover federal agent that he knew how to circumvent political fundraising laws..." More (Newsday 09.02.2005). Earlier.

Who gets to use courthouse side doors, who gets fined? "Employees and visitors who exit the Beaver County [PA] Courthouse using emergency doors could soon be facing fines if the county commissioners follow through on an ordinance being drafted by county solicitors...." More (Beaver County Times 09.02.2005). Comment. The thorny problem facing commissioners is which employees are among the "elect" who get exempted from the new rule. Judges, not surprisingly, have proposed they be the only ones. But others feel they're "special," too, & want "in." Stuff like this -- who gets the better table at the restaurant, whose seats are better at the concert -- always amuses me. BTW, while they're at it, the commissioners might want to come up with a new name for the county. Cf, Beaver College changes oft-derided name (CNN 11.20.2000). (Beaver College was originally a women's college in Beaver County but later moved & became co-ed. Subject of jokes for years, in 2000 it changed its name to Arcadia College.)

Annals of children of judges. "Three students allegedly committed suicide in three separate incidents in the City on Thursday, barely 12 hours after the Visvesvaraya Technological University (VTU) announced the BE results. One of the victims is the daughter of High Court Judge, Justice Nagamohan Das...." More (New India Press 09.02.2005). Comment. Yesterday we posted an entry titled Son follows in judge/father's footsteps -- to prison. Needless to say, the idyllic movies focusing on Andy Hardy (Mickey Rooney) & his wise father, Judge James Hardy (Lewis Stone), do not reflect reality. See, Judges as depicted in movies.

Judge orders child molester castrated. "A judge ordered a Boynton Beach man Thursday to become the first person in Palm Beach County history to involuntarily undergo chemical castration as part of his sentence for molesting two women as he gave them massages...[A] 1997 law compelling the treatment has been overlooked by judges, prosecutors and public defenders. The law calls for mandatory chemical castration if an offender has two or more sexual battery convictions...." More (South Florida Sun-Sentinel 09.02.2005). Comment. One could argue that giving a repeat offender the choice of chemical castration over a life in prison would be humane. On the related subject of forced sterilization, see Justice Holmes' classic, though sometimes criticized, opinion in Buck v. Bell, 274 U.S. 200 (1927). (Note: The opinion is worth reading not just for its content but for its brilliance of style; only Holmes, "a literary genius of the first magnitude," could write opinions like that.) On the related subject of the excessive harshness of long terms of imprisonment, see, George Bernard Shaw, The Crime of Imprisonment (1922) ("Imprisonment, as it exists today, is a worse crime than any of those committed by its victims").

Swede judge fired for soliciting prostitute. "A Swedish judge who admitted soliciting prostitutes at a brothel was today fired by a disciplinary board. Mats Persson, who served on the Trelleborg District Court in southern Sweden, was fined in June after admitting to trying to buy sex from three prostitutes at an illegal brothel made to look like a tanning salon...." More (IOL 09.01.2005). Comment. According to the story, it is illegal to buy sex in Sweden but not to sell it. Perhaps Swede judges do not understand the distinction? We ask this because in the last year or so, three have been caught buying sex. BTW, we are unaware of any Norwegian judges in the same time period patronizing prostitutes. See, Those "randy" Swede (not Norwegian) judges.

18th annual 'Solemn Old Judge Day.' "The Mammoth Spring [Arkansas] Chamber of Commerce will hold the 18th annual Solemn Old Judge Day Sept. 3. Events will include music on Main Street during the day. Any area musician is welcome to play anywhere in town that day...." More (Southern Missourian News 09.01.2005). Comments. a) When the dust settles & Swedes get a little distance from things & see the humor in them, the Stockholm-ians perhaps will start holding "Randy Old Swedish Judges Days." b) The title "Solemn Old Judge" refers, I believe, to George Dewey Hay, founder of the Grand Old Opry, who once was a print journalist covering the courts who went by the nickname of "The Solemn Old Judge." For a short but interesting biography & an explanation of his connection to Mammoth Spring, Arkansas, click here.

Son follows in judge/father's footsteps -- to prison. "The son of a former judge will follow in his father's footsteps, but not onto the bench. Rather, Matthew Gross, like his father, will go to prison for eight years...Arthur Gross, a cocaine user by his own admission since 1990, was an associate judge for 25 years in the 10th Judicial Circuit...before his drug use became public. He first was arrested on a cocaine possession charge in 1995. He was convicted, placed on probation and removed from the bench. He later was disbarred. While on probation in 1997, Gross was convicted again of cocaine possession and sentenced to prison." More (Peoria Journal-Star 09.01.2005). Comment. I repeat what I've said many times before: our harsh drug laws, with their over-reliance on prison, are brainless.

Former judge, now an ex-con, sues over slow prison mail delivery. "Former Allegheny County Judge Joseph Jaffe, who went to prison for extortion and now works as a law clerk, has filed a federal lawsuit against the U.S. Bureau of Prisons because he says he didn't get his mail on time behind bars...." More (Pittsburgh Post-Gazette 09.01.2005).

Emergency legislation needed for federal courts in New Orleans. "Congress must pass emergency legislation when it returns after Labor Day so that the federal court system in New Orleans can move to a new location, a spokesman for the federal judiciary said Thursday...." More (Washington Post 09.01.2005).

Former Master of Rolls Lord Donaldson dies. "In July this year, he was among a number of senior judicial figures who spoke out against politicians - including Prime Minister Tony Blair - who called on judges not to block new anti-terrorism proposals. Lord Donaldson indicated that judges would continue to interpret the law independently of the Government's demands. Memorably, Lord Donaldson said: 'It is the job of the judges to ensure that the government of the day does not exceed its powers, which is a permanent desire of all governments.'" More (UK Independent 09.01.2005). Comment. We quoted Lord Donaldson the very day he uttered those memorable words. In a long distinguished career, he saved his best 'til last.

Geo. Will defends judicial review against right-wing attacks. "Debate about the role of judges in American governance is a hardy perennial, arising from the tension between one result of judicial review -- the invalidation of laws enacted by elected representatives -- and popular government. This is what the late Alexander Bickel of Yale Law School called the 'countermajoritarian difficulty.' But it should not be an agonizing difficulty for conservatives, who should cast a cool eye on any sentimental celebration of unchecked majorities...." More (Washington Post 09.01.2005). Comment. Mr. Will relies heavily on Daniel Farber and Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (2005). Here's a link to an excerpt, from the book's appendix, an imaginative speculation about what some constitutional scholars would say about an old family latke recipe.

Bawston judge tries to 'up' number of minorities in jury pool. "U.S. District Court Judge Nancy Gertner on Wednesday ordered that jury summonses returned from outdated addresses in minority neighborhoods will be reissued to the same zip codes. Usually they are reissued throughout eastern Massachusetts at random, making it less likely that minorities would end up on the jury...." The judge issued her ruling in connection with a capital muder trial of two Black men in an attempt to reduce the likelihood they are tried by jury with no minority members. More (Boston Globe 09.01.2005). Comment. This technique ought to be used with respect to all jury summonses.

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