The Daily Judge
© 2006 Burton Randall Hanson
       Archives - 01.01.2006 - 01.15.2006
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "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 legal 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. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."

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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.

    Regarding embattled judge: what transcript shows he really said. First there was the public outcry, including by the governor, over a VT judge's staying execution of a prison term for a sex offender and reportedly saying he didn't believe in punishment, etc. See, Outcry over judge's sentence prompts governor to suggest he resign. Then came word that supporters of the judge were saying he's a good guy, etc. See, Supporters rally to defense of 'soft' Vermont judge. Now comes word that he didn't say he didn't believe in punishment. According to today's (01.15.2006) Boston Globe, "[T]he transcript released by the court Friday of the court hearing in question shows that [Judge] Cashman said, 'And I keep telling prosecutors, and they won't hear me, that punishment is not enough.'" More.

    Legally blind lawyer wants to join metaphorically blind judges. "Thomas 'T.J.' Loftus, a prosecutor at Cook County's juvenile court, is trying to become the first elected legally blind judge on the Cook County Circuit Court...Though he is legally blind, Loftus has some very limited vision that allows him to make his way around the courtroom and recognize, at least in general terms, the witness he is cross-examining. A voice synthesizer on his computer helps him do his legal research and get through the briefs...." More (Daily Southtown 01.15.2006). Further reading on legally blind judges. Judge Richard C. Casey, A Jurist Who Happens to Be Blind in the Federal Courts (NFB.Org); Profile of Judge David Tatel, U.S. Circuit Court of Appeals for D.C. Circuit. (Wikipedia).



    The Supreme Court Seamstress. "Mrs. Bertha L. Glimps of Asheville, North Carolina started 31 years ago at the Court, tidying up around the building as a 'housekeeper'; for nineteen years she has been the Court seamstress. Mrs. Glimps' space is on the ground floor adjacent to the women's rest rooms. All day long women visitors knock on her door to ask the meaning of the 'seamstress' sign. A kindly, gregarious person, Mrs. Glimps never tires explaining. The s eamstress does what her title suggests: she keeps busy day after day sewing and mending a hundred items -- the rent robe of a Justice, a flag shredded by gales out front of the building, uniforms of the sixty policemen in need of alterations, torn tablecloths and napkins, the draperies on many large windows -- and on and on...." -- From Barrett McGurn, Downstairs at the Court (Supreme Court Historical Society 1977 Yearbook).

    Alito wins bi-partisan applause for whistling performance. "Applause rang through both sides of the Senate floor Friday as Judge Samuel Alito successfully whistled the complete theme to the Andy Griffith Show virtually assuring his nomination as the 113th Supreme Court Justice of the United States of America...." More (The Spoof - UK 01.14.2006).

    Judge claims she's victim of racial, gender discrimination by colleague. "An Ingham County Circuit Court [J]udge [Beverley Nettles-Nickerson, who is an African-American,] claims she has been a victim of racial [and gender] discrimination by the court's chief judge, but the chief judge [William Collette] denies those claims. [Nettles-Nickerson] contends [Collette] has meddled in her court operations by insisting that she break for an hour for lunch and by assigning her a court reporter who didn't apply for the job... [Collette] acknowledged conflicts with her but said his actions came after consulting with the State Court Administrator's Office...'I believe it's because I'm an African-American female judge,' [Nettles-Nickerson] said...." More (Michigan Live 01.14.2006).

    A mini-essay on 'ingrate judges.' "U.S. District Court Judge Douglas P. Woodlock, speaking to a Boston Bar Association dinner where he recently received an award, told of a conversation decades ago with another federal judge in Chicago who owed his appointment to then-mayor Richard J. Daley. 'What does Mayor Daley think of you as a judge?' Woodlock asked. 'He thinks I'm an ingrate, and I think that's the way it should be,' the Chicago judge replied...." -- from an op-ed piece by Robert Kuttner. More (Boston Globe 01.14.2006). Comment. One of the most famous "ingrate judges" was also one of the greatest -- Holmes. Holmes earned T.R.'s wrath for his position in the Northern Securities case, prompting T.R. to declare, "I could carve out of a banana a judge with more backbone than that." See, my entry titled Presidents have been surprised by their choices for Court.

    Supporters rally to defense of 'soft' Vermont judge. a) "Dozens of the judges supporters contacted Channel 3 telling us they believe Judge Cashman has been treated unfairly by the media --including Channel 3's reports. Court workers, defense lawyers, and prosecutors insist he is one of the kindest, fairest and most thoughtful judges in the state, who at the same time, is noted for his occasional surprises...The record shows that Cashman has never been known for being a lenient sentenced -- especially in rape cases...." More (WCAX-TV 01.14.2006). b) "Former Chief Justice Jeffrey Amestoy has praised Judge Edward Cashman as a 'competent, caring and conservative trial judge.' Amestoy, who stepped down as chief justice in 2004, wrote in an opinion piece for Vermont newspapers that 'of all the waters a judge must navigate, sentencing is by far the most challenging... It is easy to determine whether a sentence is popular or unpopular, but considerably more difficult to discern whether it is `right' or `wrong,' Amestoy wrote." More (Boston Globe 01.14.2006). c) Leading GOP lawmaker says sentence poorly reported (Boston Globe 01.14.2006). Earlier. Outcry over judge's sentence prompts governor to suggest he resign.



    Imprisoned judge rethinks crime & punishment. "His last night behind bars, Roland Amundson was sitting in the prison library when he felt the large shadow of someone standing over him. He looked up to see the inmate others feared the most, a former motorcycle gang leader who had been convicted of killing a man in a bar fight - a murder so violent the court doubled the standard sentence. The man wanted to talk. Mr. Amundson had been the appellate judge who upheld that unusually strict sentence...." More (N.Y. Times 01.13.2006). Comment. We typically urge less-harsh treatment of everyone from Minnesota kids who bring plastic Nintendo guns with them to school to judges who veer slightly off the boring straight-and-narrow path they are expected to follow. See, e.g., my comments on a judge's conduct at Judge charged with reprising Michael Douglas' role in 'Traffic'? As to the boy with the plastic Nintendo gun & our schools' stupid zero-tolerance policies, see entry dated 04.27.2002 titled Zero-tolerance nonsense (scroll down) at BurtLaw's Law & Kids. We even urged probation with home-confinement rather than prison for Judge Amundson when he was convicted, of a property offense -- see, entry dated 06.08.2002 titled Wish list (scroll down) at BurtLaw on Crime & Punishment, an opinion that subjected us to national ridicule (a slight exaggeration) by an extremely popular conservative blogger (whom we nonetheless like). (We can take it -- & we can dish it out.) Judge Amundson now thinks, as we do, that our lock-them-up-and-throw-away-the-keys sentencing laws are a big mistake. It's one reason we have advocated, as Frank Lloyd Wright did, sending all judges and legislators to jail -- if only for a night or two. See, Should we send all judges and legislators to jail? Like Judge Amundson, people who spend time behind bars or have a relative or friend behind bars tend to stop thinking of people in trouble with the law as "others" or as "them" but as "us" and they start to see the folly of our unnecessarily-harsh and counter-productive sentencing policies. Further reading. I've held these views all my life and I've never been ashamed of them, although I've not always been free to express them. Here's a link to a campaign position paper on Crime and Punishment I posted on my campaign website in my 2004 anti-Iraq-war campaign against entrenched incumbent Republican Congressman Jim Ramstad.

    Questions raised about judges testifying for Alito. "'It's a really bad idea,'' said law professor Stephen Gillers, who teaches legal ethics at New York University. "One would have hoped that the judges themselves would have refused to do it, and one would have hoped that Sen. (Arlen) Specter would not have broached the subject. 'Judging is not a political event, but confirming and picking judges is a political event. Judges should not mix up in politics publicly.' Monroe Freedman, a prominent legal ethicist who teaches at Hofstra University in New York, said the judges' testimony -- one of the few times on record judges have testified on behalf of a Supreme Court nominee -- violated no ethical standards and likely provided unique insights about Alito. But he said the committee still shouldn't have invited them...." More (San Francisco Chronicle 01.13.2006). Comment. See, our earlier comments at Sitting judges to testify in support of Alito -- is that okay?

    Judge is 'on the run.' "Zimbabwean judge Benjamin Paradza, due to be sentenced on Friday by the High Court for corruption, has gone missing.
After he failed to turn up in court, an arrest warrant was ordered to be faxed to all border posts...Mr Paradza, who faces three years in prison or a fine, said he was being targeted for delivering judgements that were not in favour of the government...." More (BBC News 01.13.2006). Comment. Maybe the time has come for all Zimbabwean judges to "run."

    Outcry over judge's sentence prompts governor to suggest he resign. Mark Hulett was convicted in Vermont state court last summer of two counts of aggravated sexual assault and a third charge. Last week District Court Judge Edward Cashman imposed a combined maximum sentence of life in prison but stayed execution of all but 60 days of it. In imposing the sentence the judge reportedly said, inter alia, that he no longer believed punishment worked. That raised a hullabaloo, and now the governor, James Douglas, said if Cashman really thinks that, he should resign. More (Boston Globe 01.13.2006). Comment. The rage on the part of many people over the judge's sentence/statements reminds me of a New Yorker cartoon of some years ago (possibly by George Booth, if memory serves me correctly) depicting a minister being physically tossed out the front door of his church by his congregants; on the church sign is the title of the sermon: "Was Mary Magdalene a prostitute?" My brother, as a young man in the mid-1950's, gave a talk to a youth group at a rural church near my hometown in which he said, in so many words, that "Mary Magdalene was, of course, a prostitute." The elderly minister, Rev. N. J. Njus, who spoke English with a very thick Norwegian accent, took offense and said so. I was, of course, amused and for years teased my brother about it. Further reading: Mary Magdalene Saint or Sinner? (Time 08.11.2003 - reproduced at DanBrown.Com).

    Statewide computer network for judges still not working after $63 million. "Nearly all of the $75 million in taxpayer dollars handed out over a decade ago to link Massachusetts courts through a new computer system has been spent -- yet only two of the stateís 117 courts have been wired up. 'It has not been a success. It is a terrible system,' said a frustrated Cambridge District Court Judge George Sprague. 'It was supposed to connect all the courthouses so I -- sitting in Cambridge -- could look at a defendantís records in the Worcester court.'" Details (Boston Herald 01.13.2006).



    Fed. Dist. Judge Jack Tanner (1919-2006) -- revered, reversed. "U.S. District Judge Jack Tanner has done what he promised to do back on Feb. 9, 1989. At 70, when he was eligible for a reduced caseload or retirement from his seat on the Western District Court in Tacoma, he told a Tacoma Community College gathering that he intended to stick around 'until rigor mortis sets in.' The reason, he said, was simple: As the first African American federal judge west of the Mississippi, he didn't want to be replaced by a white guy...Tanner's reversal record first drew attention in 1983, when American Lawyer magazine named him the worst federal judge in the West. But some attorneys and judges said the reversals didn't make him a bad judge...." More (Seattle Post-Intelligencer 01.12.2006). Comment. According to the piece, "The federal appeals court for the Western states reversed or vacated Tanner's decisions at least 146 times from 1982 to 2004." Then again, the appeals court in question is the "notorious Ninth" U.S. Circuit Court of Appeals, which is the "most-reversed" of all the federal appeals courts. See, e.g., Michael Tremoglie, The Ninth Circus Court (Front Page 06.24.2003). We're not sure which way this cuts, since the 9th is not only the most reversed but the most "liberal." Perhaps Judge Tanner would have been reversed even more in one or more of the other circuits.

    'Ten Commandments Judge' to run for Governor. "Former Alabama Chief Justice Roy Moore, who was fired in 2003 for refusing to remove a Ten Commandments monument from a state courthouse, officially entered the race for Alabama governor Wednesday...." More (MSNBC 01.12.2006). Comment. A famous strip-tease dancer said, "Yah gotta have a gimmick." Mr. Moore has gotten a lot of mileage out of his "gimmick." For more on Moore, go to BurtLaw's Court Gazing IV & scroll down to "7-day cruise with the chief -- as low as $1,468!"

    Judges named to pick top Miss America. "An NFL great, a multi-platinum
recording artist, a "Desperate Housewives" star and a fashion guru are among
the judges for the 2006 Miss America Pageant, it was announced today by the
Miss America Organization. Jane Kaczmarek (Malcolm in the Middle), Brenda Strong (Desperate Housewives, Miss Arizona 1980), Jerry Rice (NFL receiver), Leeza Gibbons (TV/radio host), Brian McKnight (recording artist), Robert Verdi (fashion expert) and Sharlene Wells Hawkes (Miss America 1985) will all serve as judges for the final night of this year's pageant, which for the first time will be
held in Las Vegas...." More (PRNewswire 01.12.2006). Comment. We note that not a single one of the judges chosen has real world experience as a judge in the great common law tradition. But, you say, a real judge can't ethically serve as a beauty pageant judge, can he? Yes, he may. See, Ethics 101 - May a common law judge serve as judge of beauty pageant?

    What color is your robe? Why? "The wearing of a black robe by judges was a custom utilized more by the judiciary in the United States than in other countries. Traditionally, black signifies death and mourning. It had never occurred to me that the research I had conducted would serve me in such good stead when I was elected to the judiciary. 1 chose the color red for, as I discovered in my research, red was the color most widely used by jurists in England and Canada as well as France. It was also rooted in the history of the English judiciary, from whence comes most precedent for the law as it is practiced in the United States. Our adoption of the English legal system without its traditional judicial garb poses the mystery. The question, 'Why do you wear red?' was therefore replaced by the question 'Why do judges wear black?'" For the answer, see, S.J. Clarkson, The Judicial Robe (The Supreme Court Historical Society 1980 Yearbook), from which the above quote is taken.

    Alfred Hitchcock on judges. "Judges do not fare particularly well in the Hitchcock canon. In The Paradine Case, the judge (Charles Laughton) makes lecherous advances on the wife of defense counsel Peck. Later, he coldly rebukes his wifeís pleas for mercy for a convicted murderess before nefariously picking his teeth. In Strangers On a Train, a judge encountered by psychotic Bruno Antony (Robert Walker) is equally casual about socializing after he has dispensed the death penalty. And in I Confess (Warner Brothers-First National 1952), the judge gratuitously criticizes a not guilty verdict entered by the jury in the trial of a priest (Montgomery Clift) who has wrongfully been accused of murder." From Jason P. Isralowitz, Lonely Hearts and Murderers: The Fourth Amendment Through Hitchcock's Lens, 24 Legal Studies Forum 98, n. 4 (2000), reprinted in Law in Popular Culture Collection at Tarlton Law Library, University of Texas at Austin.



    Judge moves to stop courtroom 'intimidation by teeshirt.' "A top judge [Robert A. Mulligan, chief justice for administration and management of the state's court system] has banned shirts and other clothing bearing the phrase 'Stop Snitching' and outlawed camera phones from the state's courthouses... Mulligan said the policy was motivated in part by an incident in Salem Superior Court last spring. During a gang-related trial, several friends of the defendant were seen using camera phones to photograph a prosecutor, a police investigator and a witness who was testifying...." More (Boston Globe 01.11.2006).

    Attorney General chastizes immigration judges. "Attorney General Alberto R. Gonzales chastised immigration judges yesterday for ''intemperate or even abusive' conduct toward people seeking asylum in the United States and ordered a comprehensive review of US immigration courts...." More (Boston Globe 01.11.2006).

    Judge faces probe over allegations he's not a 'team player.' "A Brampton judge [61-year-old Justice Marvin Morten] who was named that city's 'Citizen of the Year' for 2002 now faces...alleg[ations] that [he] just isn't a team player. Morten has been 'rude, insulting and disrespectful' toward his fellow Brampton judges...Morten is also accused of misconduct at a criminal trial in 2002 [when] he [allegedly] repeatedly interrupted a defence lawyer, took over questioning of the accused and, when the defence objected, called security officers to the courtroom and threatened to place the lawyer in custody...." More (Toronto Star 01.11.2006).

    Judge charged with letting aide decide cases. "Judicial investigators accused a Talladega County judge [District Judge Tommy Dobson] of wrongly letting an assistant decide hundreds of cases involving juveniles and child support without oversight, a mistake that resulted in seven people being freed from jail...[A] court-appointed referee, attorney Jack E. Swinford, who Dobson named to help handle cases [allegedly]decided more than 2,500 cases without Dobson's input, as is required...." More (AL.Com 01.11.2006).



    Judge What's-Her-Name. "In spite of broad, high-profile news coverage of the U.S. Supreme Court in the past year, 57 percent of Americans can't name any current U.S. Supreme Court justices.  According to a new national survey conducted by FindLaw.com, the leading legal Web site, only 43 percent of American adults can name at least one justice who is currently serving on the nation's highest court...." More (PRNewswire.Com 01.20.2006). Comment. "Let's see, there's Holmes -- he's pretty good. But that Commie, I don't like him."

    Judge again dismisses defamation suit by ex-judge over campaign attacks. "[Sangamon County Circuit Judge Patrick Kelley] has dismissed -- for the second time -- former 5th District Appellate Judge Gordon Maag's $110 million claim against Republican-backed groups over a campaign brochure [used against him] when he ran unsuccessfully for the Illinois Supreme Court in 2004. The brochure called Maag's record on crime 'embarrassing' and 'dangerous.'" More (St. Louis Post-Dispatch 01.10.2006). Our earlier posting on Maag's suit. Comment. For our postings on defamation suits filed by other judges and an explanation of our minority view that the cause of action for defamation ought to be abolished, see: Newspaper attacks $2 million libel verdict awarded trial judge - Court upholds dismissal of judge's libel suit against TV station - Illinois Supremes opine on judicial privilege - Spicing up the courts.

    Israeli pol speaks of confidence crisis regarding judicial system. "Labor Party Chairman MK Amir Peretz on Monday unveiled a plan aimed at making legal services more 'user-friendly,' and more accessible for more people. 'The confidence crisis between the people and the courts is a danger to democracy,' Peretz said in a speech at Tel Aviv University's Law School on Monday...." Details (Haaretz 01.10.2006).

    Judge holds press conference to defend contempt finding. "A Jefferson District Court judge [Michelle Stengel] took the unusual step yesterday of holding a press conference to explain her reasons for jailing a social worker on contempt charges late last month. [She] said a videotape of the Dec. 29 incident provided to the media last week did not capture the extent of social worker Tricia Mack's actions and comments...Three deputies and a public defender representing a juvenile who was the focus of the Dec. 29 hearing also spoke during the press conference, confirming Stengel's account...." The social worker is sticking to her guns, saying, "She abused her power. The tape speaks for itself. You can't dispute a tape." More (Louisville Courier-Journal 01.10.2006). Comments. a) Without speaking to the facts of this case, we repeat: "It's BurtLaw Rule-of-Thumb #139 for avoiding discipline: Avoid using the contempt power altogether." For more on this advice, see, our comments at Judges in contempt. b) Videotapes do "speak for themselves," but only up to a point. They don't always tell the complete story, and, contrary to what Ms. Mack is quoted as saying, you can dispute a tape. c) It's unusual for a judge to call a press conference to answer accusations. We don't know enough to know whether it was wise of the judge to do so. d) Corroboration of the judge's version of events by court employees and a public defender is helpful but not necessarily conclusive. A press conference is not a trial, at which the corroborative witnesses would be subject to cross-examination. e) Judges, if you want to avoid messes like this, where you might wind up being the one disciplined, see a), supra, and our comments at Judges in contempt.

    'A prince in the courtroom.' "He felt a lot of people only got in a courtroom once and he wanted to make sure they felt they were fairly treated...He was absolutely a prince in the courtroom." - Attorney Bob Bosso, quoted in a long piece by Donna Jones in today's (01.10.2005) Santa Cruz Sentinel about Charles S. "Chick" Franich, a Santa Cruz County superior court judge who died at age 90. Comment. I've seen a lot of trial and appellate judges in action, in a public setting, i.e., in the courtroom. A couple of appellate court judges whose conduct in the courtroom could only be described as princely -- and I don't mean to suggest others' conduct wasn't -- were my main judicial mentor, the late Justice C. Donald Peterson, and my friend, still going strong, Justice John E. Simonett, who is retired from the court but not from law. I remember in particular listening to an oral argument by an attorney representing herself in a disciplinary matter. When she started crying, Gentleman John gently asked a question about a factual matter of low emotional content, allowing her to regain her compusure. It was the sort of gallant, generous, gentle act one associates with a true prince.



    Were phones of supreme court judges tapped? "Packing fresh ammunition in his campaign against 10 Janpath in the phone tapping case, Samajwadi Party leader Amar Singh on Monday alleged that phones of former external affairs minister Natwar Singh and some judges of the Supreme Court were also being tapped, which was indicative of an 'undeclared Emergency.'" More (New India Press 01.09.2006). Comment. Sorry if the headline tricked you into thinking someone had alleged that our supreme court judges' phones were tapped. That'd never happen, right?

    The wrong doors. "The wrong doors were installed on more than 100 doorways in the new $44 million Dane County Courthouse, and now there's a dispute over who should pay to fix them...." The main problem is that "[t]he doors in the county prosecutor's office on the third floor have windows in them, compromising privacy and confidentiality for crime victims, witnesses and others." The plans apparently specified solid doors without windows. Another problem is that "the finish [on the doors in question] does not match the rest of the office woodwork." More (Chicago Sun-Times 01.09.2006). Comment. Some might say, "Picky, picky." But we think the prosecutor's desire for solid doors is reasonable and justified. Moreover, one doesn't have to be a prosecutor to want one's office door to be windowless. We could give numerous reasons, but our readers aren't dumb.

    More people claim judge was guilty of NWP (napping while presiding). "A special panel on judicial ethics has voted to ask Superior Court Judge Patricia Coffey to respond to a complaint that she dozed off repeatedly during a sexual abuse trial. Meantime, three other people say they saw Coffey sleep during court hearings...." More (Boston Globe 01.09.2006). Comments. a) In a comment to an earlier story about these allegations, Judge denies dozing during trial, we reminded everyone of BurtLaw Rule of Thumb #164: "You can't tell if a judge, or anyone else, is asleep by merely looking at her eyes; she may well be very much 'in the moment.'" The other day at a photo-op meeting with former Secretaries of State, etc., President Bush, irked by a question by Madeline Albright ("whether, with the war 'taking up all the energy' of his foreign policy team, he had let the nuclear programmes in Iran and North Korea spin out of control and allowed Latin America and China policy suffer by neglect"), replied that his administration "can do more than one thing at a time." More (Times of India 01.06.2006). That's basically what I said earlier: Some of us geniuses can actually do two things at once. Holmes, e.g., typically wrote letters to his pen pals while listening to arguments -- the letters are among the best in the language and are collected in volumes every lawyer and every judge should read. See, e.g., The Holmes-Laski Letters. b) BTW, NAP (napping while presiding) should be compared and contrasted with LWSJ (leaking while secretly judging) and MWP (masturbating while presiding).

   Panel of judges rejects ex-judge's claim of bias in transfer. "An upstate New York appellate panel Thursday rejected a sex discrimination claim lodged by [Frank V. Ponterio,] a former Staten Island judge who claimed he was reassigned because another judge had accused him of prejudice against female litigants and ultimately denied recertification [to continue working past the mandatory retirement age] because he complained of bias...." More (N.Y. L. Journal via Law.Com via Yahoo 01.09.2006).

    Bar president urges deeper probe into judicial graft. "The ongoing investigation into corruption within the judiciary has only skimmed the surface, according to the head of the Athens Bar Association (ABA), Dimitris Paxinos, who told Sunday's Kathimerini that inspectors had for many years turned a blind eye to graft among judges...." More (Kathimerini 01.09.2006).

    BurtLaw on a Supreme Court Justice's 'votes.' Yesterday, as the blather from various sides spewed forth from Senators, pundits, etc., about how a Justice Alito would "vote" on controversial issues coming to the Court, I was again reminded that one of the clues to a person's basic ignorance of the role of appellate judges and how appellate judges properly approach and decide cases is the person's narrow concern with judges' "votes." I dealt with this precise issue in my essay entitled, "The Voices of a Judge -- The Judicial Opinions of Chief Justice Peter S. Popovich of the Minnesota Supreme Court," The Judicial Career of Peter S. Popovich  (MN. Justices Series No. 10, 1998) (detailed citations omitted):

Those who think simplistically and without proper regard for the intended role of the judiciary in our system of government think that being a judge is just a matter of voting for or against a particular issue, as if the judge were a kind of legislator who listens, then votes. Robert Frost, who was a renowned college teacher as well as poet, used to tell his students that thinking is more than simply voting or taking sides on an issue. Deciding appeals in the great common law tradition requires more.

One of the things required is the recognition that life isn't always a simple matter of choosing good over bad, that there are complexities, gray areas, conflicts of good versus good. "Anybody can decide a question if only a single principle is in controversy" (Justice Felix Frankfurter), but the world of truth is contradictory. "Mad contradictions flavor all our dishes" (Ralph Waldo Emerson). For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on.

If "the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function" (F. Scott Fitzgerald), then one of the tests of a first-rate appellate judge, when these "great antinomies...present themselves like gladiators for our favors," is the ability to "discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms" (Professor Paul Freund).

Robert Frost said, "Life sways perilously at the confluence of opposing forces" such as Justice and Mercy or Change and Stability. One might also say that life is even more perilous if one is interested only in Change or Youth, on the one hand, or Stability or Age, on the other. As in the case of any antinomy, it is when the two opposing concepts are in tension with each other that creative thinking and acting occur.



    Judging the judging. "If the previous system was so simplistic that it all but accommodated cheating, this one is so complicated it requires extensive study to understand its nuances, or, skaters say, to achieve success with it...." From a piece in today's (01.08.2006) Washington Post on the new figure-skating scoring system that will be debuted both at the U.S. championships and the Olympics this month.

    Retiring judge will be remembered as -- you guessed it -- being 'a fair judge.' "Those who have worked closely with [retiring N.H. Supreme Court Associate Justice Joseph] Nadeau said he will be remembered for being a fair judge...." And -- you also may have guessed it -- "Although he has officially retired from the state's highest court, he hardly is content to spend the rest of his days watching television or fishing some lonely river...." From Former top judge looks to future (Foster's Online 01.08.2006).Comments. a) Generally, obituaries and retirement pieces on judges make them all sound the same or similar. But occasionally there's unintended humor. To say he will be remembered for being "a fair judge" could mean he was fair to the parties in his consideration and disposition of cases -- or it could mean "he was an okay judge, 'fair' or even 'good,' I'd say." We assume the former was intended. When Justice C. Donald Peterson, my friend and main mentor at the Minnesota Supreme Court, retired, he was asked by a reporter who was writing a puff piece to describe himself as a judge. He said he was "a centrist." Either she was unfamiliar with the term in judicial circles or she misheard him, because she wrote that he described himself as "an eccentric." Good sport that he was, he chuckled at the alleged self-description and delighted in telling others of it. Hey, in this era of the bland leading the blind, it wouldn't hurt to in fact be a bit of an eccentric -- one who is off-center -- on a multi-member appellate court. b) Retiring judges often say they plan "to write," but it seems to me few actually do. (I think some might do well to get in touch with their "inner eccentric" as part of their experiment with writing.) One former judge who actually has written something is retired Seminole County Judge Fredric M. Hitt: "The Central Florida Anthropological Society will present a free lecture by...Hitt at 7 p.m. Thursday at Harry P. Leu Gardens, 1920 N. Forest Ave., Orlando. Hitt will discuss his first published novel Wekiva Winter, a story about the Timucua and Acuera Indians who lived along the St. Johns River." More (Orlando Sentinel 01.08.2006). Many former judges nowadays find lucrative employment in mediation, serving "of counsel" to law firms, etc. Retiring Justice Nadeau's "hardly" being content to spend his retirement days watching TV or fishing, which is admirable but typical, should be compared and contrasted with retiring U.S. Magistrate Judge Alfred Nicols' announced plan to paint landscapes "every day once he retires." More (Jackson Clarion Ledger 01.08.2006). Nicols, it seems, already has a career as a "popular landscape artist" and "Many of Nicols' scenic paintings have been appraised from $2,800 up to $12,500, [Nicols] said." A federal judge is quoted as saying Nicols' landscapes "are so real, I feel like I can walk right into them." We have a similar experience with super-clean floor-to-ceiling plate glass windows -- we do walk right into them.



    Sitting judges to testify in support of Alito -- is that okay? "Seven current and former federal appellate court judges will testify on behalf of Supreme Court nominee Samuel A. Alito Jr. next week, an extraordinary role for the sitting judges who will be dealing with a colleague who could be positioned to uphold or overturn their rulings...'They will testify about his approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view,' [Senate Judiciary Chairman Arlen] Specter said in an interview...." Specter also is quoted as saying he sees no potential conflict of interest either for the judges, all current or former colleagues, or for Alito if confirmed. More (Washington Post 01.07.2006). Comment. I don't agree with all the Canons of Judicial Conduct, but I'd strive to follow them if I were a judge, just as I strove to follow them as a judicial aide de camp for nearly 30 years (all attorneys serving judges as research assistants, aides, etc., are bound by the canons to the extent the canons or rules are relevant to their roles and duties). a) Federal Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities") provides in part B. that "A judge should not testify voluntarily as a character witness." Some of the news stories say the judges, who apparently will be testifying voluntarily, will be character witness. But it seems from the Post's account that they will not so much be general character witnesses as witnesses who have specific personal knowledge that will contradict some of the damning things witnesses against Alito are expected to say. b) Canon 7 ("A judge should refrain from political activity") provides in part A. (2) that a judge should not "publicly endorse or oppose a candidate for public office." Many states that have judicial elections have a similar prohibition and it is thought (by many who think about such things) to prevent, say, two incumbent members of an appellate court who are running for another term in the same election from running coordinated campaigns, endorsing each other, appearing together, etc. (which is why the judges endorsing them typically are retired and former judges, not colleagues or other sitting judges). Judge Alito is a candidate for public office in the sense that he is doing what he can to get the requisite number of electors -- i.e., Senators -- to vote to confirm. But it is questionable whether the rule was intended to prohibit the testimony in question. c) I'm still in an "I dunno" phase about the ultimate propriety and wisdom of the judges testifying but I do know I admire their courage and loyalty in being willing to do so. It is a sad truth that many judges, like most people, are somewhat wanting in such character traits.

    Bill would pay part of justices' legal expenses. "The three Supreme Court justices investigated by lawmakers for wrong doing, may have some of their legal bills paid by the state. Former Chief Justice David Brock was impeached by the House on four counts in 2000, but was found not guilty by the Senate after his trial. The House Judiciary Committee also investigated former Associate Justice Sherman Horton Jr. and current Chief Justice John Broderick, but did not bring articles of impeachment against them...." Brock would receive over $500,000, the other two $37,000 and $90,000 respectively. More (N.H. Union-Leader 01.06.2006). Comment. I have no way of knowing whether the fees are reasonable in these three instances and express no opinion thereon. But I have to say in general I'm continually amazed at the fees some attorneys charge for their services. I also have to say that I don't agree a) that public officeholders in cases like this ought to receive full reimbursement without regard to the reasonableness of the fees or b) that there ought to be no limit other than reasonableness (if there is no limit other than reasonablesness, then there may be no realistic brake on expenditures or reimbursements, for multiple reasons I won't get into here).



    Commentator charges judges with LWSJ (leaking while secretly judging). "On Thursday morning, the Washington Post published an article ('Surveillance Court Is Seeking Answers -- Judges Were Unaware of Eavesdropping') that is jaw-dropping in the matter-of-factness with which reports on an outrageous impropriety by at least two FISA court judges." Andrew C. McCarthy Now Judges Are Leaking - FISA judges discuss NSA surveillance with the Washington Post (National Review 01.05.2006). The part of the Post story that triggered Mr. McCarthy's outrage was this:

Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.

McCarthy argues that the leaking judges not only violated Canon 3 of the Code of Judicial Conduct but, worse, by their leaking demonstrated their unfitness to serve on the secret FISA Court. Comment. I have a different take and it applies to all the judges on the secret court: in my view, all of the judges demonstrated their unfitness for judicial office merely by agreeing to serve on such a court. Earlier. Federal judge resigns in protest from secret court Bush bypassed - Judges on secret spy court to get White House briefing.

    A tabloid's take on judge charged with MWP (masturbating while presiding). Some of the catchiest headlines appear in the NYC tabloids. Here's one on the MWP case from the 01.05.2006 The New York Post: Jolt to 'Jerky' Judge, the "jolt" being the order of the presiding judge following the long-delayed preliminary hearing. And here's the double-entendre opening line from the accompanying story: "A judge accused of masturbating on the bench will rise as a defendant thanks to one of his former employees -- a court reporter who kept detailed records of the gavel-grabber's allegedly indecent behavior." We quote the line in the interest of judicial education, that is, as an example of the sort of catchy opening line that any judge who wants to write memorable, blogger-cited opinions might try his hand at writing -- if he's prepared to suffer the potentially-explosive consequences.

    The Holmesian angle on the MWP case. Justice Holmes cautioned us to "think things, not words." The various stories we've been reading regarding the judge charged with MWP all refer to his alleged use of a "penis pump." But those are just words. Operationally speaking, what is a "penis pump," why might a man use it, and does it really "work"? In the public interest, we refer you to a discussion of Erectile Dysfunction: Vacuum Constriction Devices at MedicineNet.Com.

    Reprimand ok'd for judge who tried to discourage opponent from running. On 08.18.2005 we linked to a report that a Florida county court judge, W. Wayne Woodard (nicknamed "Triple W"?), had agreed with the judicial conduct folks to be publicly reprimanded for "seven violations," including that he "ha[d] repeatedly been rude in court, put incorrect information in campaign literature and improperly tried to persuade a political opponent not to run against him...." That last one, which caused us to chuckle, was set forth in the report as follows:

In April 2004 Woodard phoned the house of attorney Carolyn Garber, who had recently declared she would run for his seat. Woodard told Garber's husband, Kenneth, that she might want to reconsider her plans to run. Woodard said he already had a lot of campaign money and many locations lined up for political signs. According to the records, the judge said that his campaign was for his "retirement and grandchildren," and that losing the election would affect his retirement, and thus his grandchildren.

The Sarasota Herald-Tribune now reports (01.06.2006) that the FLA Supreme Court has approved the settlement. The public reprimand will occur at the Court at 8:30 a.m. on 02.10.2006 when "the chief justice will read a prepared statement that addresses Woodard's misconduct." Comment. One of my favorite movies is Across the Pacific (1942), a romance/adventure/war/spy movie directed by John Huston and starring Humphrey Bogart, Mary Astor, and Sydney Greenstreet that takes place, much of it aboard a Japanese freighter bound for the Panama Canal and beyond, in the months preceding Pearl Harbor. In it there is a scene in which a supposedly-disgraced Rick Leland, played by Bogart, is "court-martialed" and expelled from the army, with his ribbons, etc., being cremoniously ripped off of his uniform. We think that, assuming a public reprimand is justified, the brief ceremonial reading of the reprimand planned for 02.10.2006 is appropriate. But what if removal had been justified? We are not aware of any formal disrobing ceremony anywhere in this wide world when a judge is removed. I'm not arguing that there is a need for such a ceremony when disgraced judges are expelled, but if there were to be one, presumably the ribbon-ripping ceremony in Across the Pacific would be an appropriate model: with a steady, martial drumbeat in the background, one by one the judge's former colleagues would come forward and ceremoniously rip-off a part of the disgraced judge's robe until it's all in tatters. Think of the scare that would put into all would-be scalawag judges.

    Dismissed supreme court judges to appeal to higher court. "The dismissed judges of the Supreme Court of Georgia will appeal to the European Court. Four judges Ė Nino Gvenetadze, Merab Turava, Murman Issaev and Tamar Laliashvili were dismissed by the Disciplinary Board in December for disciplinary violations. The fifth judge Ė Davit Sulakvelidze was given strict warning...." Details (Prime News 01.06.2006).

    Pols to probe courthouse evacuations. "Democratic lawmakers said Friday they'll hold a public hearing on what they termed an apparent communication breakdown during a December bomb threat that forced the evacuation of all 45 state courthouses. They want to know why local police and fire chiefs weren't notified and why state homeland security officials were left in the dark for more than two hours...." More (Newsday 01.06.2006).



    Judging cases and judges on their merits. Sen. John Cornyn (R. Texas) has an essay titled Merit-Based Judging in The National Review today (01.05.2006) that is worth a quick read regardless of where one stands on the merits of the Alito nomination. Cornyn says, in part: "There is a profound need in this country for an honest depiction of the judicial process...[O]ne positive step would be to televise court proceedings, including those that take place within the four walls of the Supreme Court...."

    FBI to train bodyguards for Philippine judges? "The Federal Bureau of Investigation is willing to train the bodyguards that will be assigned to members of the Judiciary, Chief Justice Artemio Panganiban said Thursday...The National Bureau of Investigation, the FBI counterpart in the Philippines, will supervise the assignment of security personnel, Panganiban said...." More (INQ7.Net 01.05.2006). Earlier. Judge relies on prayer to protect self from assassins - Judges prefer bodyguards to guns for protection - Judge shot and killed by gunmen on motorcycles. Comment. When I studied civics it was black-letter law that the FBI investigated federal crimes within the U.S., the CIA kept its nose out of affairs within the country, etc. In 1968 MN's Sen. Eugene McCarthy made an issue of the failure of Congressional oversight of these agencies and the IRS. Since 09.11, it seems, anything goes, with fairly clear lines of demarcation having become blurred. The NSA scandal is only one of many examples. I was in agreement with McCarthy on all this in '68 and I've been railing against these more recent developments since days after 09.11.

    Annals of pro se litigants and frequent filers. "Former Steamboat Springs resident Kay Sieverding, who has been in jail since September, was released Wednesday after she agreed to dismiss her numerous federal lawsuits...The cases stem from a dispute with neighbors in Steamboat Springs. Sieverding has filed lawsuits against not only her former neighbors but also Steamboat Springs officials, the local newspaper, several individual lawyers and the entire Colorado and American Bar Associations, among others. She has filed the lawsuits in Colorado U.S. District Court, and also in federal courts in Illinois, Minnesota, Kansas and the District of Columbia...." More (Rocky Mountain News 01.05.2005).

    Prosecutor threatens lawsuit to stop Spanish-language courts. "Stop Spanish-language DUI court or I'll sue. That's the message that Maricopa County Attorney Andrew Thomas sent Wednesday to Judge Barbara Rodriguez Mundell, who presides over not only the award-winning Spanish DUI court but also all of Maricopa County Superior Court. Thomas also insisted that a special DUI court for Native Americans be discontinued as well...." More (Arizona Republic 01.05.2005). Earlier. County attorney assails 'race-based' DUI courts.



    Judge rules 'mooning' is 'distasteful' but also legal. "Acquitting a Germantown man who exposed his buttocks during an argument with a neighbor, a Montgomery County Circuit Court judge ruled yesterday that mooning, while distasteful, is not illegal in Maryland. 'If exposure of half of the buttock constituted indecent exposure, any woman wearing a thong at the beach at Ocean City would be guilty,' Judge John W. Debelius III said after the bench trial, reversing the ruling of a District Court judge...." More (Washington Post 01.04.2006). Comments. a) In January film critics sometimes dub certain movies released in January as among the best of the year so far. This precedent, in our opinion, is one of the best of the year so far. b) Query: Might this precedent help the OK judge charged with using a penis-pump during trial? (We linked to the most-recent news story about that case yesterday. To read that item, manipulate your "mouse" in such a way as to permit you to "click" on this link.) c) For a further inquiry into the subject of the law as it relates to swimsuits, public nudity, etc., see BurtLaw's Law and Swimsuits (the first such issue of any legal publication in the history of Anglo-American law, nay, in the history of law!). See, also: Judge dismisses indecency charge against nude protester and Annals of judicial prudery - what does da judge have against female breasts? (and embedded links).

    Former supreme court justices are not going gentle into that good night. "Of the 13 former justices of the Supreme Court [of Canada], about half appear to be as busy, or busier, in retirement than they were when they were on the bench. Their skills, judgment and prestige put them in great demand as arbitrators, university chancellors and commissioners, in Canada and around the world...." More (The Globe and Mail 01.04.2006). Comment. Worth a read. Each of us reads with a bias. My "bias" is against mandatory retirement of judges -- see, BurtLaw on Mandatory Retirement of Judges -- and I read this fine piece, although it's not so intended, as indirectly supporting my "bias."

    Judge relies on prayer to protect self from assassins. "A judge assigned in a special court yesterday said that prayer is the most powerful tool by judges against those who are attempting to kill them. Judge Victor Gelvezon of the Regional Trial Court (RTC) Branch 36[, which] is a drug court...[said,] 'I always rely on prayer and I can handle the threat'...But [he] admits that[,] like some [other] judges, he possesses a firearm in order to protect himself...." More (Sun-Star 01.04.2006). Earlier. Judges prefer bodyguards to guns for protection - Judge shot and killed by gunmen on motorcycles.

    'Embattled' judge steps down. "Embattled Orange County Judge Alan C. Todd, under scrutiny by judicial watchdogs for insensitive court comments and moved to a new assignment two weeks ago for criticizing another judge, abruptly retired from the bench Tuesday...Todd's insensitive comments in 2002, 2003 and 2004 about women in his courtroom landed him before the state's Judicial Qualifications Commission in hearings to determine his fitness as a judge...At those hearings, there was testimony that Todd berated an Orange County deputy sheriff for having a child out of wedlock and called her a 'tramp'; called another female deputy a 'deputite; and insulted a female attorney he thought was Hispanic with disparaging remarks about affirmative action...." More (Orlando Sentinel 01.04.2006). Earlier. Judge reassigned after criticizing colleague.

    Controversial judge keeps getting reversed in DUI cases. "Taxpayers are footing the bill for appeals in routine drunken-driving cases as a controversial judge's rulings keep getting challenged. In the past two years, Mason Municipal Prosecutor Robert Peeler has filed appeals in seven drunken-driving cases, challenging Judge George Parker's decisions to suppress -- or bar from trial -- sobriety test results. In all seven cases...the 12th District Court of Appeals has reversed Parker's rulings and sent the cases back to court for new hearings...." More (Cincinnati Enquirer 01.04.2006).

    Quote-of-the-Day. "Judges sit on a plush chair behind a bench in a warm or cool atmosphere depending on the time of the year." - from a letter by Paul D. Kelly Sr. of Philadelphia to the Philadelphia Daily News in regard to the controversy over judicial pay raises that led to one state supreme court justice losing a retention election in November. PA Supreme Court, under fire, will hear judicial pay-raise lawsuits (and embedded links). Mr. Kelly also says:

It seems as though everyone vying for a high-profile job like mayor, councilman, legislator and judge all say the same thing about pay:
"To attract and retain the best qualified persons for these positions, they must be paid an adequate compensation." What makes them any different, other than some college credits, from police officers, firefighters and EMTs? These people put their lives on the line every time they report to work...Judges, walk a mile in our shoes, then let's sit down and talk about salaries.

For some of my views, see my comments and the link within the comments at The Chief Justice's Annual Report.

    Preparing to strut for judges. Here's a headline in today's (01.04.2006) Press-Enterprise CA: Dogs prepare to strut for judges. It's a headline for a story about "the return of the Kennel Club of Palm Springs All-Breeds Dog Show this weekend." It prompted me to think back on some notable examples I've witnessed over the years of attorneys "strutting" for common-law judges, then prompted recollections of a few instances I've witnessed of "judicial strutting." In turn I thought of the line attributed sometimes to the sharp-tongued Alice Roosevelt Longworth (TR's daughter memorialized in the song Alice Bluegown), "He [referring to a prominent public figure, Gen. Douglas MacArthur, I think] struts sitting down." My button-down mind then reminded me of all of the strutting of President Bush (which I first commented on in a piece shortly before 09.11 titled "'It's my ball,' said the spoiled boy" at BurtLaw's Court Gazing (scroll down), strutting that increased after he became a "War President" and has diminished significantly since he landed on the aircraft carrier to give his ill-timed Mission Accomplished Speech. Having gotten this far in a few seconds of mental gymnastics, I decided perhaps "someday" to write a comparative essay on the similarities and differences in the ways members of the different branches of government strut. It will conclude with admonitions to all public figures -- nay, to everyone except dogs and horses -- not to strut. The admonition will cite as "legal authority," first, a poem by Robert Frost that I have always liked titled "The Fear of God," with its caution to those who "rise from Nowhere up to Somewhere" of the need to "Stay unassuming" and to "keep repeating to yourself/ You owe it to an arbitrary god/ Whose mercy to you rather than to others/ Wonít bear too critical examination...." And next it will quote from Anton Chekhov's 1886 letter to his brother Nikolay on the prerequisities to being a "cultured person," #6 of which is:

They [cultured people] are not vain. They do not care for such paste diamonds as familiarity with celebrities, the handclasp of the drunken gadfly, the raptures of a stray spectator in a picture gallery, popularity in beer-halls....When they have done a kopeck's worth of work they do not strut about as though they had done a hundred rubles' worth, and they do not brag of having the entrance where others are not admitted. The truly talented always keep in the shade, among the crowd, far from the show. Even Krylov said that an empty barrel is noisier than a full one.

Making life difficult for the public figure/reader, it will also caution against something that is more offensive than public strutting, namely, public displays of false humility.

    Odds'n'ends:

    a) Why Norwegians should not judge chili contests (Redwood Falls MN Gazette 01.04.2006). Here are the respective "comments" of two seasoned Texas chili judges and of Norwegian Warren Bjornebo on the second entry in a Texas chili contest for which he volunteered to serve as judge:

Chili #2: Arthur's Afterburner Chili.
Gomez: Smoky, with a hint of pork. Slight Jalapeno tang.
Mike: Exciting BBQ flavor, needs more peppers to be taken seriously.
[Bjornebo]: Keep this out of reach of children! I'm not sure what I am supposed to taste besides pain. I had to wave off two people who wanted to give me the Heimlich maneuver. They had to walkie-talkie in three extra beers when they saw the look on my face.

    b) Out lesbian runs for circuit court judge (Windy City Times 01.04.2006). Interesting profile of Mary Colleen Roberts, an "out" lesbian lawyer who lives in Oak Park, Illinois and is running for Judge in the 11th Judicial Subcircuit of the Circuit Court of Cook County. Ms. Roberts doesn't feel so much that her sexual orientation, her being an "out" lesbian mother, etc., are irrelevant to her candidacy as that they constitute pluses:

"I believe that honesty of myself brings to bear in the decisions that I make at work and in my personal life," she said. As a lesbian, Roberts said, she knows she can bring an element of fairness to the bench. "The Circuit Court judge is the person who is making decisions about peopleís lives at a very individual and instant level. Itís given me the ability to be empathetic towards people who are different than I am because I know firsthand what itís like to be discriminated against," she continued. "Iím able to see the nuances in any situation. At a very basic level, itís important to have gay and lesbian people as judges."



    Judge orders priest to prove Christ existed. "An Italian judge has ordered a priest to appear in court this month to prove that Jesus Christ existed...Signor Cascioli, author of a book called The Fable of Christ, began legal proceedings against Father [Enrico] Righi [in Viterbo] three years ago after the priest denounced Signor Cascioli in the parish newsletter for questioning Christís historical existence. Yesterday Gaetano Mautone, a judge in Viterbo, set a preliminary hearing for the end of this month and ordered Father Righi to appear...." More (UK Times 01.03.2006). Earlier. Is 'Jesus Christ' a judicial creation?

    Judging the work of an aide-de-camp -- regarding Alito. Charles Fried, who was a young assistant prof at Harvard Law School when I was a student there and who is still there now, after stints as U.S. Solicitor General and as Associate Justice of the Massachusetts Supreme Court, has written a needed opinion piece for the NYT. In it he argues, I think persuasively, that some detractors of Judge Samuel Alito, who have seized upon two memos in particular that he wrote as a "junior lawyer" in the Solicitor General's Office under Mr. Fried, have unfairly ignored the context and the content of those memos. Fried first reminds us of Alito's role within the office, "that [of] a junior staff member [who] was assigned to analyze...recommendations [for action made by the Attorney General and his staff] and propose a course of action to [Alito's 'client,'] the [S]olicitor [G]eneral." Fried then proceeds to argue that "What [the Alito memos] illustrate is [first] a man who is not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice [and second] a person who can tell the difference between the law and his own political predilections." See, C. Fried, Samuel Alito - in Context (N.Y. Times 01.03.2006). Comment. I know a thing or two about working behind the scenes in government as a legal aide-de-camp, albeit not as an aide to an advocate but as a) an aide to state supreme court justices, both as individuals and as a collective unit, but also, at the same time, b) as an aide to such a court as an institution. Whenever one evaluates the work of an aide in retrospect, one needs, in all fairness, to consider, first of all and as Fried does, the operational or functional role(s) of the aide. In other words, one must follow Holmes' dictum to "think things, not words." Second, one must evaluate the work product, if one has access to it, within the context of all the relevant circumstances. When I ran for statewide judicial office, a newspaper ran a piece identifying me as a former long-time employee of the court's clerk's office. Friends who knew that most people "think words" and therefore knew how misleading that was, speculated wildly how the reporter came to so identify me and urged me to take steps to correct it or to let them do so. I said no. My thoughts were a) if anyone had tried to do me a bad deed, that would be that person's problem when the Final Accounts were presented to St. Peter for the Final Audit, not my problem, b) if I tried to correct the misstatement, it'd make me look petty, c) reporting that I'd been deputy court commissioner for nearly 30 years wouldn't have made things any clearer to the average person, d) there was no way, for various reasons, including complex ethical ones, that I could really explain operationally all the things I had done over the years as a judicial aide-de-camp, and e) it wouldn't have mattered to anyone anyhow. In conclusion, my attitude was that of one of our greatest Americans, Hon. Alfred E. Neuman, "What, Me Worry?" :-)

    Have you tried Alito Bold Justice? "T.M. Ward Coffee Co. in Newark...sells a popular coffee called Alito Bold Justice, made and named for the federal judge, who has been a regular customer at the store near the federal courthouse since 1987. The brew was concocted for Alito five years ago as a birthday present. But sales of the coffee have taken off since President Bush tapped the New Jersey native in November to fill a seat on the nation's highest court...." More (Seattle Times 01.03.2006). Comment. My only thought is this: Will someone use this disclosure to try derail the nomination?

    Trial soon for judge charged with using penis-pump during trial? "Former Judge Donald Thompson was ordered to stand trial on indecent exposure charges Tuesday after his former court clerk testified that he often masturbated during trial and once shaved his pubic area while on the bench. Lisa Foster, who worked for the former Creek County judge for 15 years, was the only witness called in his preliminary hearing. She testified that after months of hearing a stranger whooshing noise during trials she saw Thompson masturbating during witness testimony in February 2001 using a pump device.... More (KOTV-6 01.03.2006). Comment. If you have the urge, we invite you to read one of our earlier postings on this hard case, including our modest suggestion as to how the judge could have protected himself against these allegations:

 Latest on case of the disgraced "penis-pumping" judge. Last summer the blog world and the weird-news sites were alive with the imagined sound of whooshing that some said emanated for a number of years, during court hearings, from beneath the robe of an Oklahoma judge named Donald Thompson. See, e.g., Judge a pervert in court (UK Mirror 06.25.2004). The judge, who denied the charges, retired with an $88,800 a year pension last August while threatened with discipline by the Judicial Conducts Board. Oklahoma judge's career ended by allegations (S.F. Chronicle 02.08.2005). I would have thought that would have ended the matter, but no: Thompson is scheduled to go on trial in September on indecent exposure charges & the prosecution has announced it intends to seek admission of so-called "other-crime" or "similar-conduct" evidence to help prove its case. For example, "one new witness will testify [if allowed] that Thompson exposed himself to her and made lewd proposals one night when she was working as his court reporter." More (KOTV 07.31.2005). Comment. Judge Thompson's troubles illustrate why judges fearing similar troubles should consider buying Jimbo's Zip-Seal Judicial Robes, the ones with the the zip-lock and an inner lining made of light-weight sound-absorbing bullet-proof material. If Judge Thompson had been wearing one of the Zip-Seal robes, he'd be able to claim it was a physical impossibility that witnesses heard or saw what they claim they heard or saw. He'd also have been protected against anyone attacking him.

    The ongoing tale of a judge and her Mormom law clerk. "Regina Pangerl graduated from law school and took a job as a clerk for [Susan Ehrlich,] an Appeals Court judge. One day, she claimed, the judge went on a contemptuous tirade about Mormons in her presence, and her dream job turned into a nightmare when the judge found out she was Mormon, too. So Pangerl complained to the Commission on Judicial Conduct, the state board that investigates allegations made against judges. The commission reprimanded [the judge] for violating the code of judicial conduct....[Now Pangerl has] complained of discrimination and retaliation to the federal Equal Employment Opportunity Commission and plans to sue Ehrlich in federal court...." More (Arizona Republic 01.03.2006). Comment. The story, which is long and detailed, is worth reading in its entirety. One of the purposes of the story appears to be to illustrate that under new sunshine rules commission findings in cases like this, which were not made public by the commission in this case, will be made public. Interestingly, "[Judge] Ehrlich's attorney said her reprimand had nothing to do with [the alleged] discriminating against Mormons and everything to do with the judge's 'intemperate' treatment of court employees. 'In other words she was not always sweet to deal with,' he said." Earlier. Arizona becomes a sunshine state in re judicial complaints - Judge gets informal reprimand for being impatient, discourteous.

    Judge and dad prepare to enter prison. "They've given him a number and taken away his name. And his robe. And key. Garey Ballance, the former [N.C.] District Court judge who was sentenced to nine months in prison for failing to pay taxes on a $20,000 cash gift from his father, began his sentence at a federal prison in Butner on Monday. He has traded in his judicial black robe for the khaki uniform of an inmate. His father, former U.S. Rep. Frank Ballance, swapped his pinstriped suits for the same attire and began his four-year sentence at the prison Friday. He pleaded guilty to diverting taxpayer money to family, friends and charitable organizations he helped start...." More (News Observer 01.03.2006). Comment. We urge the judge and his dad to keep journals while in prison. We also urge them to read The Daily Judge (we're free).

    Two men get probation for prank phone calls to judge. "According to police reports, a person left a threatening message on...[the] answering machine [of St. Francois County, Indiana Associate Circuit Court Judge Thomas L. Ray] just before 3 a.m. Jan. 29, 2003. The caller stated he was 'going to kick your ***.' Alarmed by the message, Judge Ray contacted Farmington police who were able to get a phone number and an address for the caller who did not identify himself in the message he left. When the police questioned several people at a residence in Doe Run, [Gabriel] Wichman told police that [Ryan] Fleming was just goofing around and prank calling people. He said he gave Fleming Judge Ray's phone number. Wichman said while he was friends with Judge Ray's daughter, he forgot her father was a judge. He said Fleming did not know that the phone number belonged to a judge...." More (Daily Journal 01.03.2006). Comment. Someday I'm going to write an essay titled "My Felonious Past," which, among other things, will recount in detail the various phone pranks/practical jokes I and friends (whose names I won't mention) played on people back in the good ol' days before caller-ID, prudish zero-tolerance bureaucrats, harsh juvenile court judges, sanctimonious tough-on-crime lawmakers, etc. I must say, I'm still pretty proud of some of those pranks, although I must add that I'm glad I wasn't caught. For my mini-essay titled "My Felonious Past," see BurtLaw's Law and Kids (scroll down).



    Experiences with death define federal judge's life, work. "His outrage over an Army officer's cavalier decision to kill Shoob's young German prisoners made him determined to protect human rights. The bravery of the two gay soldiers in his unit taught him respect for different lifestyles and the folly of prejudging people. And his father's suicide formed his ideas about the right of individuals to make decisions about their own lives...." From a profile of U.S. District Court Judge Marvin Shoob, an 82-year-old judge in the Northern District of Georgia. Interestingly, Shoob is an example of the old saw that you never can predict based on a lawyer's clientele how he'll see things as a judge:

When Carter named Shoob to the bench, pundits predicted he would be the most conservative of the five nominations the president made that year, primarily because of Shoob's three decades as a trial lawyer for corporate America. That hasn't been the case. As a federal judge with a lifetime appointment and no aspirations to serve on the appellate bench, Shoob hasn't felt the need to avoid offending those who might have aided his advancement...[C]onservatives have sometimes labeled him a "liberal activist" judge, and he has angered and confounded the White House, the Justice Department and other judges.

 More (Atlanta Journal-Constitution 01.02.2006).

    Beaver County judicial odds'n'ends. a) Beaver County gets first female judge. "The first elected female judge in Beaver County history was sworn in Friday, and will take her place on the Common Pleas bench Tuesday. Debbie Kunselman, 38, of Hopewell, was sworn in by her father-in-law, President Judge Robert E. Kunselman...." More (Pittsburgh Post-Gazette 01.02.2006). b) Panel says Beaver County Judge broke law. "The State Court of Judicial Discipline has ruled that a former Beaver County district judge [Joseph Zupsic, 61,] accused of being biased toward friends, family and co-workers violated state law and should be disciplined...Members said that...Zupsic tried to help friends and acquaintances by dismissing or reducing charges or trying to influence investigating officers...." More (Pittsburgh Post-Gazette 01.02.2006). Earlier 'related' stories. Christmas at Beaver County Courthouse - PA judge rules on important lingerie shop case - Judge orders man who took beaver to guard beaver - Who gets to use Beaver County courthouse side doors, who gets fined? - 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).

    The judge and the fanatic -- terror trials in Yemen. "Terrorist trials in Yemen are noisy affairs. The caged prisoners persistently interrupt proceedings, invoking the name of Allah in the belief their deeds are legitimised by the Koran. But can the Koran be interpreted in this way? Everything revolves around the Koran in Yemen. The legal system is based on it and no judgement may contradict its teachings...." This is from a TV listing for a documentary being aired in Australia. The documentary shows, among other things, Judge Hamoud al-Gitara, an Islamic "moderate," engaging with a terrorist in the practice of "dialogue," which is described as "an ancient process for resolving tribal disputes." More (Sydney Morning Herald 01.02.2005).

    Judges prefer bodyguards to guns for protection. "Philippine Judges Association (PJA) Executive Vice President Judge Aurora Jane Lantion said having guns would appear that the judges were putting the law into their own hands...." More (News.INQ7 01.02.2006). Earlier. Judge shot and killed by gunmen on motorcycles.

    More on 'shaming sentences.' "James Cohen, a professor at the Fordham University School of Law, said there has been a trend toward "shaming" sentences for about 15 years, but he added that such punishment is a tradition in the United States. 'There is a long, long history of shaming people,' Cohen said, noting the colonial practice of putting people in stocks on village greens...." From a story on use by some judges of "shaming sentences." More (Bradenton Herald 01.02.2006). Related stories. Herein of public urination and the law - Adam Cohen on Judge Judy - Those creative conditions of probation -- as in 30 nights in doghouse - Judge uses 'humor & humiliation" rather than jail.



    The Chief Justice's Annual Report. It's C. J. Roberts' first and it's well-written. Full text (MSNBC 01.01.2006). He again asks for a substantial pay-raise, over and above the "employment cost index adjustment," for federal judges, making basically the same arguments his predecessors have made: that "real pay" has declined 25% since 1969, that judges are leaving the bench in large numbers, and that unless something is done the only good people we'll attract to the bench will be the rich and those who are not in private practice but who have chosen public service, law teaching, etc., as a career path. The NYT has the figures: "Federal district judges now receive $165,200 a year, a figure rapidly surpassed by young associates at major big-city law firms. Court of appeals judges receive $175,100. Associate justices of the Supreme Court are paid $203,000, with the chief justice earning an extra $9,100." More (N.Y. Times 01.01.2006). Comment. It may or may not make sense for us to substantially increase federal judges' salaries. But the arguments that advocates of a big raise always tirelessly trot out are filled with flaws and omissions. For the flaws (e.g., that some young lawyers in Wall Street firms get paid more is really beside the point) and omissions (proponents fail to mention the extraordinary benefits of a federal judgeship, including extraordinarily generous pensions, life tenure with no mandated retirement, good hours, many bright law clerks to help them do their job, etc.) and for the kind of approach I recommend, see, my earlier mini-essay from 01.01.2002 titled I could be making lots more if I were Michael Jordan. As for the argument that somehow the independence of the federal judiciary is threatened by the supposedly meager pay given federal judges, I would respond that a) if virtue in office increases with pay, then one cannot account for the corporate scandals of recent years perpretrated by CEO's and others receiving obscenely-high compensation, and b) the real threats to judicial independence come from other sources, including those who establish narrow-minded litmus tests for judicial nominees.

   Judge denies dozing during trial. "The wife of a man convicted of sexual assault has filed a complaint against the [N.H.] judge who oversaw the trial, saying the judge dozed off repeatedly during court proceedings. A special panel of the Judicial Conduct Committee will consider the complaint against Rockingham County Superior Court Judge Patricia Coffey....Laura Kiernan, communications director for New Hampshire's courts, said Coffey [unequivocally] denies the allegations...." More (Boston Globe 01.01.2006).  Comment. Last year we came across lots of reports of sleeping going on during trials -- e.g., sleeping by defendants, sleeping by judges, sleeping by jurors -- also highly impermissible yawning by jurors. We've also seen stories about people who use the courthouse as home, sleeping there. And we posted a piece about judges who take naps in chambers -- we're for it, if it helps make them better judges. One judge, an Aussie named Ian Dodd, dubbed "Judge Nodd, the sleeping judge" retired after his sleeping during trial became a public matter. It turned out he suffered from sleep apnea. We recall a judge who had a way of listening with his eyes closed; he appeared asleep at times but really heard every word you said, as he demonstrated by his responses time and again. It's BurtLaw Rule of Thumb #164: "You can't tell if a judge (or anyone else) is asleep by merely looking at her eyes; she may well be very much 'in the moment.'" I often fall asleep at night with the radio on, tuned to BBC news, and wake to it. It's not unusual for me to recall news stories "heard" while I was asleep. Some of us geniuses can actually do two things at once. Holmes, e.g., typically wrote letters to his pen pals while listening to arguments -- the letters are among the best in the language and are collected in volumes every lawyer and every judge should read. See, e.g., The Holmes-Laski Letters.

    Annals of mandatory retirement. "A Cleveland municipal judge who her peers say could put those T-V judges to shame is retiring after nearly two decades on the bench. Mabel Jasper is 73, and her six-year term ends January fifth. She can't run for re-election because state law bars anyone over 70 from running for judge...." More (Ohio News Now 01.01.2006). For a more detailed profile, see, Cleveland judge served up humor, solutions (Akron Daily Beacon 01.01.2006) ("Mabel Jasper did a soft-shoe on her way to the bench, apparently just because -- at age 73 -- she still can. But as defendants approach and dockets are read, she's not dancing around. 'Stay away from them drugs,' she tells a man like a grandmother would as he stands before her in Cleveland Municipal Court, where she has been lecturing bad drivers, irresponsible mothers, drinkers, druggers and dropouts for nearly two decades."). Comment. Our opposition to mandatory retirement is well known to our regular readers. See, BurtLaw on Mandatory Retirement of Judges, which is one of most-visited pages on our other law blog.

    Male blawger who posed as a female judicial groupie quits day job. "He described himself as a judicial groupie, but now he'll have to be a fan from afar. David Lat, who raised eyebrows in November when it was revealed that he was the author of a spicy blog [Underneath Their Robes] in which he claimed to be a young female lawyer, has left his job as an assistant federal prosecutor in Newark. Lat, 30, sent an interoffice e-mail Friday to fellow staff at the U.S. Attorney's Office, telling them that is was his last day. He told friends and colleagues that he would soon be going to Washington, D.C., to work...." Lat was not forced out. More (Newsday 01.01.2006). Earlier. Mystery of judicial blogger is solved. Comment. We don't pose as a woman and we're nobody's groupie, certainly not the groupie of any judge, but we like to think (in our dreams) we have our own groupies. One of our imaginary groupies sorta reminds us of Donna Reed, another of Annabeth Gish (she was in Pursuit of Happiness, a movie we watched on TV last night, so we have her on our mind), another of....

    Scalia gets more laughs than the other Justices. "[During the October 2004 Term,] Justice Scalia was the funniest justice, at 77 'laughing episodes.' On average, he was good for slightly more than one laugh -- 1.027, to be precise -- per argument. Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all...." More (N.Y. Times 01.01.2006). The stats are from J. Wexler,  Laugh Track, 9 Green Bag 59 (2005). Comment. We've observed over the years that lawyers are as sycophantic as nonlawyers and that in the presence of a judge -- any judge -- trying to be witty, they'll laugh, just as, we presume, sycophantic people in Iraq laughed when/if Saddam Hussein tried to be funny. Perhaps the study identified the judge who tried hardest to be funny, not the funniest judge. There's a difference....

    An idea for the writers at TV's 'Cold Case'? "The discovery of human bones is delaying the renovation of a historic courthouse in the Southern Tier. Elmira station W-E-T-M reports the bones were found during excavation work for the renovation of the Tioga County courthouse in Owego, 65 miles south of Syracuse...." More (WCAX - VT 01.01.2006).

    Judge shot and killed by gunmen on motorcycles. "A judge handling a controversial multi-million-dollar Philippine airport contract case was shot dead yesterday by two gunmen on a motorcycle, police said. Henric Guingoyon was walking home in a village when he was shot. He was pronounced dead at a hospital in Cavite province south of Manila, police said. Police said they had no evidence the killing was linked to a dispute over the Terminal 3 project at the main international airport in the capital...." More (Gulf Times - Qatar 01.01.2006). Update. Judge's slaying shocks kith, kin - 80-year-old ma not yet told (News.INQ7 01.02.2006).





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Affiliated Web sites

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

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

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

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