The Daily Judge
© 2006 Burton Randall Hanson
      Archives - 05.13.2006 - 05.31.2006
"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.

    Obituary: MN Supreme Court Justice George M. Scott (1922 - 2006). George M. Scott, who died on 05.25.2006 at age 83, is my nominee for the best and fairest district attorney in Minnesota history. He's the guy who, as Hennepin County Attorney, put some pretty tough customers behind bars, while speaking softly. He's also the guy who, as chief author of the MN Rules of Criminal Procedure, gave the criminal defense bar open-file discovery (i.e., full pretrial access to the prosecutor's investigative file), making Minnesota's discovery-disclosure rules the best and fairest in the country. [If you want to see how things were done in MN before he championed this practice (and, sadly, how things are still done in many states and even in federal courts), read, Robert Traver, Anatomy of a Murder (1958), a fine legal-procedural crime novel set in the Upper Peninsula of Michigan.] Scott unsuccessfully sought the DFL endorsement for governor in 1970. Three years later, the man who prevailed in that contest, Gov. Wendell Anderson, appointed him to fill one of two new seats on the state supreme court, where Scott served as associate justice until his early disability retirement for health reasons in 1987. I was lucky enough to be working at the court as deputy commissioner during Scott's tenure at the court. I reveal no secrets when I say he was not a prosecutor wearing a robe. But then he was not the stereo-typical prosecutor even when he actually was a prosecutor. That sort of prosecutor is described in memorable detail ("mongoose quick, bullying, devious, unrelenting, forever baited to ensnare," etc., etc.) by John Mason Brown, quoted at pp. 412 - 413 of the 25th Anniversary Edition of Traver's Anatomy, supra. No, Justice Scott was just the opposite, a quiet, soft-voiced, fair-minded, unpretentious gentle-man, worthy of the office of prosecutor, worthy of the office of judge in the great Minnesota Tradition. Further reading.  Minneapolis Star-Tribune (05.25.2006); St. Paul Pioneer-Press (05.26.2006).

    No belt-tightening for New Orleans judge traveling on public's money. "Although many local government entities are rattling their cups for money after Hurricane Katrina, Orleans Parish Civil District Court Judge Lloyd Medley didn't skimp when he dipped into a public purse to pay for his annual visit to a Rocky Mountain ski resort...." More (NOLA.Com 05.28.2006). Comment. This sort of story never ceases to shock me. The Times-Picayune says:

In 2003 and 2004, the last full years before Katrina, Medley averaged $16,717 a year for such expenses, more than double the court average of $7,632 in 2003 and $8,349 in 2004, records show. During that time, Medley soared to the top of the list of the court's free-spending judges by taking several trips a year to destinations that have included Chicago, San Francisco, New York City, Washington and Colorado. The highest annual travel bill of his nearest runner-up, Civil District Judge Michael Bagneris, was $15,808 in 2003.

These trips are paid for out of the court's "judicial expense fund," which is filled with money from "court costs and fees imposed on attorneys." The "biggest single travel-related expense" paid for by the fund each year? "[A] weeklong stay in Destin, Fla., an entrenched part of the calendar for local judges at every level. There, with public money offsetting much of their travel and lodging costs and the per diem, the judges rent beachfront condos or houses and often bring their families, children included, and other guests to the Panhandle." As the Gershwin song goes, "Nice work if you can get it." Related recent entries. a) Revelations about those junkets for federal judges. b) Did MN judges use public funds for lessons on how to get re-elected? c) Judges huddle in high style on taxpayers' money.

    Judge by day, social worker by night -- Is this bad? My favorite judge in the movies is Judge James K. ("Jim") Hardy (played by Lewis Stone in 14 of the movies) in the delightful Andy Hardy series of films that starred Mickey Rooney and, among others, Ann Rutherford and Judy Garland. Judge Hardy is the sort of guy who might send a guy to jail for a few days, maybe to jolt him a bit, but then give the town grocer $20 and tell him to deliver some groceries to the guy's wife and kids while he's in jail. Alas, in real life, a judge who does something like that might get in trouble. Thus, the Utah Judicial Conduct Commission is seeking a public reprimand of 7th District Judge Bruce Halliday because he had contact of this nature with a woman he had sentenced to a suspended prison sentence, with probation conditioned on her serving a year in jail. "[C]oncerned about the impact of [the woman's] incarceration" on her husband and their three young children and concerned about her progress on probation, the judge visited their home to check on how things were going and provide encouragement. According to the judge's attorney, the woman's husband was "adamant" that the judge's concern helped her "conquer her [substance abuse] problems." Moreover, no one seems to doubt the purity of the judge's motives. The judge's attorney argues that instead of seeking a reprimand, the commission therefore should have simply told the judge that "there's a better way" of helping defendants he sentences. More (Deseret News 05.28.2006). Comment. It's a fine line a judge must walk these days. A judge can't engage in lawful "bad" conduct, like looking at pictures of fetching women on the internet on the court's computer, without risking discipline. On the other hand, a judge can't engage in lawful "good" conduct, as Judge Halliday did, without also risking discipline. Sometimes the arbitrary rules make about as much sense to a judge (and everyone else) as a master's silly arbitrary rules make to his eager-to-please, "I love the world" dog.

    Revelations about those junkets for federal judges. "Two organizations that have provided free trips to hundreds of federal judges received large contributions from tobacco, oil and other corporate interests, according to documents released yesterday [by the Community Rights Counsel, a nonprofit Washington law firm]. The Montana-based Foundation for Research on Economics and the Environment (FREE) and George Mason University's Law & Economics Center previously said corporate money does not pay for the judges' seminars or declined to disclose their donors...Opponents of these seminars -- often held at pleasant places with plenty of time to do pleasant things, such as play golf and ride horses -- [say they are used] to lobby powerful judges who often decide cases that change industries and roil markets...." More (Washington Post 05.25.2006). Earlier. Will Senator's response to junket exposé affect judicial junkets? - Judicial 'Educational' Junkets.

    Did MN judges use public funds for lessons on how to get re-elected? "Judicial watchdog Gregory Wersal is accusing some Minnesota judges of using public money to teach themselves and their colleagues how to keep their jobs. In his latest tussle with the court system, the Golden Valley lawyer criticized the Minnesota Judicial Council -- a state governing body -- for hosting a speaker who gave tips about running political campaigns...." More (St. Paul Pioneer-Press 05.25.2006). Comments. a) One of the speakers was "a former Texas judge who spoke about partisan campaigning." I'm guessing this was the former Texas judge, now practicing attorney, who represented the MN judicial conduct board in its recent failed attempt to get the U.S. Supreme Court to grant review and reverse the Eighth Circuit's ruling rejecting the adequacy of MN's compliance with the U.S. Supreme Court's 2002 judicial free speech case [Republican Party of Minnesota v. White, 536 U.S. 765 (2002)]. I've been critical of our supreme court and others on their response to the White case, to the Eighth Circuit's decision, and to the recent denial of certiorari. See, i) Group-think on judicial selection, ii) SCOTUS declines review of USCA's case on judicial campaigns, iii) Speaking of the MN judicial system... iv) Blatz again blazts judicial elections, v) Blatz blazts politicization of judicial campaigns, vi) Free speech is a 'bad idea'? and vii) BurtLaw's Law & Judicial Elections. b) Chief Justice Russell Anderson, one of three Anderson's on the supreme court, issued a statement: "The purpose of this retreat was to learn how partisan elections have affected other states, and to discuss how we could preserve the public's confidence in a fair and impartial judiciary now that we are on the verge of partisan judicial elections." According to the Pioneer-Press, Wersal pointed to "a summary of strategies that lists, 'First task -- how to help with judges who are up for re-election in 2006" and pointed also "to another section labeled, 'Campaign Tips, Ten Do's and Don'ts of Judicial Campaigning.'" I'm guessing that the participants were given more detailed written materials. The press ought to insist on being provided copies of any and all such materials and of any audio or video tape recording made of the presentations, so that the public, which is the employer of the judges, may decide for itself whether there's something to Mr. Wersal's characterization of the event. c) John Kostouros, identified as "a court spokesman" (it appears "the court," which always is saying it is short of money, now has sufficient funds to hire a "p.r." or press-relations aide) is quoted as saying the "retreat," attended by 35 judges, including three supreme court justices, cost about $3,000 to put on. I'm never inclined to accept at face value an estimate like that if it's provided by a p.r. person. The press ought to inquire as to what is included in that figure. For example, I'd like to know, in particular, if the retreat was held on a court day or on a weekend. If the former, then one would want to include the indirect costs of taking 35 judges away from their respective courthouses, etc., to attend the retreat. Read on....

    Judges huddle in high style on taxpayers' money. "Bay State judges enjoy a year-round, rotating festival of posh golf-resort educational seminars in the Berkshires, on Cape Cod and elsewhere largely at taxpayer expense, despite a court system jammed with a case backlog stretching back years. Conferences for most of the seven divisions of the state's trial courts empty various courthouses across the state at different points throughout the year, leaving skeleton crews to keep the wheels of justice turning during busy work weeks. For example, dozens of Superior Court judges met at the Cranwell Resort, Spa & Golf Club in Lenox in late April, where a lodging and golf package goes for $370 a night. Despite a 'government rate' of $129 a night for the judges' conference, the event cost about $34,000, based on estimates provided by Judge Robert Mulligan, chief justice for administration for the trial courts...." More (Boston Herald 05.25.2006). Comments. a) The chief judge for administration of the trial courts describes the seminars at the resorts as "intense" and says it's a "sacrifice" for judges to attend them. (For me, it would be a "sacrifice" to attend, but because I've never found continuing legal education seminars very helpful and I wouldn't enjoy the socializing aspect of the retreats, being away from home, etc.) b) Barbara Anderson, executive director of Citizens for Limited Taxation, is quoted as saying, "If you wanted to be kind, you would compare them to the state lawmakers who take their conferences on the coast of Spain. At least [the judges] are staying in the state." To the MN judges' credit, their "retreat" was held not only "in the state" but at the MN Judicial Center, rather than at a resort or privately-owned conference center. I've long contended that government ought not pay for any out-of-state trips for judges or any other government officials to attend conventions, seminars, judicial meetings, etc., or, for that matter, for any in-state trips to such gatherings held at resorts, retreat centers, etc. I wrote a piece on this some time ago titled "Government-funded trips by judges to Hawaii, Disneyland, Squaw Valley." It's posted at BurtLaw's Law and Judicial Economics, along with other opinions & ideas of mine on judicial economics.

    Marijuana as an aid to judging? "American singer Willie Nelson uses marijuana to judge the quality of the new melodies he writes...He says, 'I figured if it wasn't worth remembering it probably wasn't a very good song, so that would be the test, to see if I remembered it (after smoking a joint and) got back to a guitar or a piano...." More (StarPulse - CT 05.24.2006). Comment. I may be one of the only guys 65 years or younger in America who's never smoked marijuana, so I have no personal knowledge of its effect on judgment. I will say I've never been terribly impressed with the literary output of well-known tipplers who've claimed they write better under the influence of liquified Muse, a/k/a booze.

    Justice is admonished for publicly backing nomination of Harriet Miers. "Texas Supreme Court Justice Nathan Hecht has been admonished by the State Commission on Judicial Conduct for his vocal support last year of Harriet Miers' nomination to the U.S. Supreme Court...." Hecht is appealing the admonishment, relying on the First Amendment. "Chip Babcock, who is representing Hecht, said that judges have been commenting on nominees for the federal bench for decades. 'I don't think that Harriet Miers' nomination is the same thing as a political race in the state of Texas,' he said...." More (Houston Chronicle 05.24.2006). Comment. I'd guess that if the U.S. Supreme Court were to address the issue, it would vacate the admonishment, relying on the judicial free-speech decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Earlier. If Harriet Miers marries another judge, will the wedding be at SCOTUS? - Sitting judges to testify in support of Alito -- is that okay?

    Latest on judicial term limits intiative -- it'd apply retroactively. "Two initiatives to limit how long Colorado's appellate judges can serve could immediately end the career of Supreme Court Chief Justice Mary Mullarkey and six Court of Appeals judges, lawyers and legal analysts said Tuesday...." More (Denver Post 05.25.2006). Earlier. Term limits for judges?

    Beaver County appeals judge's order removing judges' names from records. "Beaver County on Tuesday appealed a county judge's order from last month that demanded the removal of judges' names from all public records in the county's assessment office...." More (Beaver County Times 05.25.2006). Earlier 'related' stories. Beaver County judicial odds'n'ends - 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.

    They're putting the old courthouse on the auction block. "Beloit's vacant courthouse is headed for the auction block Wednesday. The auction will take place Wednesday at 1 p.m. on the old Beloit Courthouse steps. There will be a viewing process at 9 a.m. before the auction...." More (Channel 3000 - WI 05.25.2006).

    Mystery odor in courthouse annex. "When Centre County renovated a former bank building and turned it into a courthouse annex, it must have unsettled some spiteful spirits. The stately building has been haunted by a mystery odor lately that comes and goes. Chris Exarchos, chairman of the Centre County Board of Commissioners, said Tuesday that the "phantom" smell moves from floor to floor...." More (Centre Daily Times - PA 05.24.2006). Comment. I could (and someday may well) write an essay on all the practical jokes my closest friends and I played on people back in the 1950's -- sometimes on adults over the telephone, other times on peers, in person. Some of these jokes were ones I bought. Others were ones we created. The Bible of "bought" practical jokes was Johnson Smith & Co. of Detroit, MI, still in business today. One could buy "jokes" then that one cannot buy today, for instance, the "Voice-Tester," the "joke" of which was that when one's poor unsuspecting "victim" was "suckered into" quickly pressing the button to hear his voice, a sharp pin would prick his thumb, causing it to bleed. Each "victim" was temporarily irked with me until I suggested he help me find another poor unsuspecting fool. A perennial best-selling item was ye olde "stink bomb." Never ordered one; don't know if they "worked." Which gets me to my point: back in the 1950's I'd have guessed some prankster was setting off stink bombs in the courthouse annex. Now no one would dare. Further reading. See, "My Felonious Past" at BurtLaw's Law and Kids (scroll down).

    Business donates materials for new courthouse roof. "The local Firestone facility has donated the materials needed to roof the Nevada County Courthouse, meaning the county now has money in its coffers to address some other long-overdue projects. A recent meeting of county, state and Firestone representatives sealed the donation and put the county’s leaking roof very near a solution. The donation came after some casual conversations between the county judge and Firestone managers. The local Firestone officials say the action is a direct result of the attitudes of the corporate officers...." More (Nevada County Picayune - AR 05.25.2006). Comment. This is the way things were sometimes done in small-town America in the late 1940's and 1950's when I was a kid. When a new city-county hospital was built in 1949-1950 my mom and a neighbor, Eileen (Mrs. Irvin) Anderson, spearheaded a fund-raising drive to completely furnish the hospital, collecting over $80,000 (in 1949-1950 dollars), fivel hundred of it in small bills that a bachelor farmer, Frank Bloomberg, took out of a coffee can and gave to them while sitting at our dining room table (he got his picture in the paper and in a handsome dedication booklet, as did most donors). Sometimes, for many, many reasons (hint: one of the reasons is that "Ike" was President), I wish we could go "back to the '50's." Anyhow, while I know we "can't go home again," I believe we haven't even begun to imagine the various ways we could both reduce the cost of government and improve government if we were to tap, 1950's-style, into the altruistic spirits and hidden talents of millions of individual Americans, many of them young people filled with undirected energy and raw talent and many of them older people rich in experience and time and wisdom and skill. And the same thought applies to tapping into the resources and ideas of the business world. Which brings me to the legal profession: too often we in the profession think of work pro bono publico as a) something that ought to be required of lawyers and b) something that ought to involve the sharing of our legal expertise (or the lack of it). As to a) my view is that if one is required to give something, one isn't giving anything. And as for the providing of free legal services, it may be the least imaginative and least-needed thing to give, especially if the thing given is simply the stirring up of more litigation. If the profession really cared instead of cared most about looking like it cared, it might start by setting a good example, as by ending discrimination against older lawyers and judges, which takes the form of mandatory retirement of partners in many of the big firms and mandatory retirement of our most experienced and wisest judges. Read on...


    Term limits for judges? "Colorado would become the first state to limit the number of terms served by state appellate judges and Supreme Court justices under a ballot initiative...The state Supreme Court signed off Monday on the language of the ballot measure -- language that had been contested by opponents who claimed 'term limits' is a catchphrase that has been improperly used in political messages and therefore has no place on a ballot initiative. Supporters of the ballot initiative still must gather 67,829 valid signatures by Aug. 7 to get the measure before voters in November...." More (Denver Post 05.23.2006). Comments. a) Jean (Eberhart) Dubofsky, a former Colorado Supreme Court Associate Justice who was a classmate of mine at Harvard Law School, is quoted saying judicial term limits are a bad idea: "Term limits don't do anything (but) end institutional memory and the experience of judges. That institutional memory can be very important. You want people there that understand the development of particular areas of legal theory and know how the law has developed over a long period of time." b) I, too, oppose term limits for judges. Sadly, most states have one specific kind of term limitation, specifically, mandatory retirement, typically at age 70. See, BurtLaw on Mandatory Retirement of Judges. Term limits of all kinds are wrong, but particularly for judges. In general, one gets better at judging the more one does it, the longer one does it, and the older one gets. Justice Holmes began judging in Massachusetts, on its supreme judicial court, at around age 40, eventually becoming chief justice. After 20 years doing that, he was named by T.R. to the U.S. Supreme Court, serving it as an associate justice from around age 60 to around age 90. In my opinion he didn't become a great judge until his late 70's. With term limits and mandatory retirement, our country's greatest judge would never have achieved greatness. Term limits, including mandatory retirement are especially uncalled for in states like MN, in which judges are subject to challenge in popular elections every six years. Attorneys are free to run against sitting judges when their terms are up, and the voters are free to limit the terms of judges they feel have served long enough by simply voting for the challengers. Judicial term limits, including mandatory retirement, are -- paradoxically -- both undemocratic and anti-aristocratic. They are anti-aristocratic because they target our "elected aristocrats," i.e., judges, and they are undemocratic because they say to voters, "Although you are sovereign, you may no longer elect Justice Mini Holmes, no matter how good he is, no matter how good you think he might become, because our arbitrary term limits say you may not."

    New head of judicial conduct commission resigns abruptly. "The new chairman of the state commission that polices the ethics of New York judges has resigned from the commission in the face of a complaint [against a judge] that involves members of his Binghamton law firm...." More (Newsday 05.23.2006). Comment. One would think he could have simply stepped aside and not participated in that investigation.

    Gadfly who brought down two supreme court justices dies. "Sherman Skolnick, [75,] a corruption-hunting activist credited with pushing two Illinois Supreme Court justices from power, has died...In 1969, he found out that two judges on the Supreme Court -- [J]ustices Roy Solfisburg and Ray Klingbiel -- had accepted stock in a Chicago bank from a defendant whose case they decided favorably...." More (The Southern Illinoisan 05.23.2006).

    Rep. questions legality of committee investigating supreme court justice. "The special House committee preparing to examine potentially unethical conduct by a Kansas Supreme Court justice may not have been created in accordance with state law,...a leading Democrat on the investigative committee[,] said Monday...The object of the House investigation will be an off-the-record discussion in March among Justice Lawton Nuss and Sens. Steve Morris and Pete Brungardt, both Republicans, about the school finance case. At the time of that meeting, the House and Senate were struggling to agree to a school funding plan that might comply with the Supreme Court's order to increase spending on public schools. Nuss brought a spreadsheet to the luncheon meeting that outlined options before the Legislature. Nuss recused himself from the school finance case in April after a reporter inquired about possible secret talks between a representative of the Supreme Court and the Kansas Senate...." More (Capital-Journal 05.23.2006). Comment. The legislative hearing is separate from the judicial conduct board's inquiry, which commenced at the request of Chief Justice Kay McFarland after the news report surfaced about Justice Nuss's meeting. The board's "preliminary review suggested Nuss violated three rules of conduct," but the judge hasn't as yet responded to that "suggestion." Earlier. Latest on investigation into justice's questionable lunch with lawmaker - Judicial secrets.

    Woman in divorce case aims stun gun at hubby's groin on courthouse steps. "A woman aimed a stun gun at her husband’s groin and arm to prevent him from entering the Joshua Tree Courthouse on Monday to begin divorce pro ceedings, according to a San Bernardino Sheriff’s Department news release. Court Services deputies found Twentynine Palms residents Genevieve Palafox, 31, and Arturo Rodriguez, 26, engaged in a struggle for a backpack in the courthouse parking lot at about 11:20 a.m. Rodriguez had inside the backpack documents re quired to begin divorce proceed ings, and his wife was trying to stop him from entering the court house with them, according to the release...." More (The Desert Sun 05.23.2006). Comment. Sometimes all that elaborate courthouse security accomplishes is moving the action elsewhere. See, Shooter targets judge leaving courthouse (and comments and embedded links).

    Judge may be in hot water again. "Cape Judge President John Hlophe could be the subject of another Judicial Service Commission (JSC) investigation after it was revealed on Sunday that his son received a year-long study bursary from a prominent Cape Town law firm while Judge Hlophe was on the bench...[I]t says on the company's website that the bursary scheme [is] aimed at benefiting previously disadvantaged and underprivileged students who wish to study law...." More (Independent Online 05.22.2006). Earlier. a) About Judges Desai and Hlophe: Tea-time brawl erupts in judges' common room; Two judges slug it out in public in South Africa. b) About Judge Hlophe: Judge Hlophe speaks out on courtroom dress & decorum; Saving the truth; Free lunch for judges - literally; Chief judge apologizes for 51 judges' acceptance of free lunch).

    Dog 'wows' judges. More (Jackson Sun - TN 05.22.2006). Comment. One might work as a judge in the common law system for decades and never be "wowed" by one of the barkers (a/k/a "attorneys"). Related reading. Judges doubly impressed by student entrepreneurs (Washington Post 05.22.2006), to which I say, One might work as a judge in the common law system for decades and never be "doubly impressed" by any of the legal entrepreneurs (in the days before law-as-business and billable hours, we used to call them "counselors at law"). Teen enchants judges to win Junior Miss (Keizertimes 05.22.2006), to which I say, One might work as a judge in the common law system for decades and never be "enchanted" by any of the.... Megan's recipe for Far East Chili and coconut soup 'wows' judges (Sheffield Today 05.23.2006), to which I....

    The Chief Justice's letter to a friend at Yale. The "President" (which I believe to be another word for "Chief Justice") of the High Court of Justice in Israel, Aharon Barak, was in the minority of a highly-controversial 6-5 decision upholding the constitutionality of "the [so-called] Citizenship Law." Now the contents of an e-mail he sent to a friend analyzing the decision have been published, and various analysts and opinion-makers in Israel are arguing over the propriety of the e-mail, over whether he intended it to become public, etc. The recipient of the e-mail was "a colleague of his at Yale University, where he participates in academic seminars nearly every summer, is of great interest to the public. More and more (Haaretz 05.22.2006).

    Why being the 'Gay Marriage State' would be good for business. "Would it really be so bad if Massachusetts became the 'Las Vegas of gay marriage'? [Gov.] Mitt Romney used the phrase disparagingly a few weeks ago, as if no one would want such a role. He was speaking as the state Supreme Judicial Court upheld his use of a 1913 segregation law to stop gays from coming here from other states to get married. But you know what? Throwing out that law would be great for Boston and for Massachusetts...If we are going to have gay marriage, let’s make a profit from it. Nevada makes more than $4 billion a year from its wedding industry...." More (Boston Herald 05.22.2006).

    Moore's disciples. "Roy Moore's mantra of defying federal courts is being touted by a slate of Alabama Supreme Court candidates led by former Moore aide and current Justice Tom Parker. The challengers are running on a platform that state jurists should not obey rulings by U.S. Supreme Court justices who don't interpret the Constitution the way they do...." More (AL.Com 05.22.2006). Earlier. Bar poll results announced in heated Alabama Supreme Court races - Battle for chief justiceship in Alabama: Is challenging justice unproductive? - Panel rejects complaint against controversial AL Justice over column - Alabama justice defends low productivity - A dysfunctional 'court family' -  Another Alabama Supreme Court Justice is 'at it.'

    Judicial secrets. "Kansas judges who improperly discuss cases, file financial disclosures late or make other ethical violations are allowed to escape public scrutiny because most infractions are kept private. Just eight of the 65 cases involving violations of the Kansas Supreme Court's Code of Judicial Conduct in the past six years were made public to the voters who elect the judges. Even among the eight cases that were made public, often only scant information is released. Thirty-three other states have rules like Kansas...." Most (Kansas City Star 05.22.2006).

    C.J. Roberts wants more consensus among his colleagues. More (Seattle Post Intelligencer 05.22.2006). Comment. Each new chief justice wants unanimity, consensus, colleageality, blah, blah, and blah. The chief's wish is never granted.

    Why does courthouse shrubbery need replacing? "Shrubbery next to the Raleigh County Courthouse has been ruined by homeless people who urinate there and must be replaced, the county commission president says. Sandblasting of the courthouse caused some damage to the shrubbery, but the homeless are exacerbating the problem by urinating on the bushes, said John Aliff. 'It's turning yellow,' Aliff said...." More (ABC News 05.22.2006). Comment. We know a fellow who has his own way of dealing with such outrageous violations of public decency. See, Herein of public urination and the law.

    Barbershop to be demolished to make way for courthouse. "The building that houses Jimmie's Barbershop will soon be demolished to make way for a new $50 million courthouse." More (NBC13 - AL 05.20.2006). Comment. Does tearing down a barber shop to build a courthouse sound like a valid "public purpose" to you? See, "'Liberals' on Court approve taking from the poor to give to the rich." All I know is that up to half the people involved as parties to lawsuits -- maybe more than half -- leave the courthouse unhappy. On the other hand, men who go into a barbershop get a good haircut & maybe some good conversation with Ed the Barber and they all leave feeling fine. Perhaps the "public purpose" test for eminent domain ought to be supplemented by a "comparative public good" test. If it were, maybe we'd read stories about courthouses being demolished to build barbershops.

    Task force urges broad judicial overhaul in MN. "An initial report of the Minnesota Supreme Court Chemical Dependency Task Force, which includes Dakota County Attorney James Backstrom, recommends courts move from 'punishment' to 'problem-solving.' The report advocates keeping chronic drug addicted offenders from jail and instead implement a focus on recovery through collaboration between law enforcement, social services, judges and other court system officials...." More (Minnesota This Week Newspapers 05.19.2006). Comment. I have a cheaper, alternative idea that deserves equal consideration: decriminalization of many drug offenses and a cessation of our brainless, absurd over-reliance on excessively-harsh prison sentences for drug and other offenses. In other words, maybe we can make significant changes without turning judges into social workers. See, my 2004 Congressional campaign position paper setting forth my approach to crime and punishment.

    One-judge courthouse to go the way of one-room schoolhouse? "The tiny one-judge courthouse in Twin Peaks soon may close permanently because there's only enough cases to keep it busy one day a week, a top-ranking judge said Friday. 'One-judge courts...are not very efficient,' said Larry W. Allen, presiding judge of San Bernardino County Superior Court. 'We have to balance serving a particular community with serving the county as a whole.' Among the last one-judge courts in the county, Twin Peaks is open only on Mondays. It handles civil cases from throughout the western San Bernardino Mountains, including the communities of Crestline, Lake Arrowhead and Running Springs...." More (Press-Enterprise 05.20.2006). Comments. a) It's counter-intuitive, but my guess is that the presiding judge may be wrong in his assessment of the cost-effectiveness of maintaining one-day-a-week service in the one-judge court in Twin Peaks. He's probably focusing narrowly on the costs of sending a judge there once a week. But if one widens one's viewpoint and considers the costs (expensive gas, time lost, etc.) of litigants and witnesses having to take off work, drive a long way, etc., to get to the county seat and the benefits of having a court in a community, maybe it's more cost-efficient to keep the court open. Lewis Murray, the head of the Lake Arrowhead Communities Chamber of Commerce is quoted asking what "'business owners in our communities...are... going to do about that $100 (bounced) check,'" answering his own question by saying "'they're probably not going to go down to (court in) San Bernardino.'" The criminal cases were moved in 2004, with the result that "Sheriff's deputies and Highway Patrol officers now spend much of their time traveling to and waiting in San Bernardino to testify, often leaving mountain communities short of officers." b) Might our consolidated courts, like our consolidated schools, in some ways be too large & impersonal, too top-heavy with administrators? If I think so at times, I'm perhaps biased as a result of family history, personal observations & experience. My dad's mother, who died when he was three, taught in simple low-budget one-room rural schools in the early 1900's, and my late mother also taught in one-room rural schools in west-central Minnesota for many years, both in the 1930's and in the 1950's. I attended a relatively small-sized public school system in a town of 3,500 in west-central Minnesota in the 1950's. It is my observation that small schools, if run well, sometimes serve their students better than big schools, and at lower cost. In the decade of the 1960s, with graduating classes in the 100-125 range, my hometown high school graduated, in addition to many other outstanding people, two people who would go on to head major national financial entities or corporations, FannieMae & Estee Lauder/North America. If some small schools beat the big ones, some small courts do, too. A few years ago, at least, a disputed divorce with no custody issues, only property division, that took four years in Minnesota's Hennepin County might have come to trial in six months in Rochester, home of the Mayo Clinic, in Olmsted County -- or so a highly-reliable source told me.

    Justice denies he's behind automated campaign phone calls. Justice Donald Corbin of the Arkansas Supreme Court denies his campaign is behind automated phone messages urging people to vote for him rather than his opponent in Tuesday's primary election. The messages say things like he's a supporter of private property owners' rights, he's voted to keep criminals behind bars, and he's a family man with kids. "Corbin said he’s asked Arkansas Attorney General Mike Beebe, U. S. Attorney for the Eastern District of Arkansas Bud Cummins, and several county prosecutors to investigate...Similar calls were made regarding Jim Hannah’s successful campaign in 2004 to become chief justice. Like Corbin, Hannah asked the attorney general to investigate...." More (Arkansas Democrat-Gazette 05.19.2006).

    Bar poll results announced in heated Alabama Supreme Court races. "A political poll by the Mobile Bar Association on this year's judicial elections has produced lopsided results in some races. According to the recent poll of members of the Mobile Bar, their preference is Chief Justice Drayton Nabers, a Republican, over Republican challenger Justice Tom Parker, by a vote of 236 to 11, for chief justice of the Alabama Supreme Court...." More (Mobile Register 05.19.2006). Comments. Previous entries/comments: a) bar polls, b) Parker.

    New 'watchdog' group aims to make judges more accountable. "Members of a new court watchdog organization say they hope to improve the Marin judicial system by making the courts more accountable to the public. The Center for Judicial Excellence surfaced Thursday when it faxed a two-page letter to presiding Judge Lynn Duryee and Court Executive Officer Kim Turner requesting information about the administration of the courts. The letter asks that all audits that were issued from Jan. 1, 2005, to the present be provided by May 27. The request also asks court officials to identify past internal and external inquiries and audits going back to 1999 and to make those available...." More (Marin Independent-Journal 05.19.2006). Comment. We argued for greater real (as opposed to faux) openness of courts in an essay/position paper we wrote in 2000 in connection with our general election campaign for state chief justice in MN. See, BurtLaw on Judicial Independence and Accountability. For some of our views on the importance of sunlight to judicial and personal well-being, see, What about that quote we just attributed to Brandeis?

    Judge who resigned seeks funds for her legal defense. "Frances Gallegos, who resigned last year as Santa Fe's municipal judge amid investigations into her handling of the office, has sent out a mailer asking former campaign contributors to help pay for her defense against felony records-tampering charges...." More (Santa Fe New Mexican 05.19.2006). Text of letter.

    Scalia tells Congressmen to stay out of his yard. Speaking at a luncheon, Justice Scalia criticized conservative Republicans in Congress who have introduced bills purporting to bar the Supreme Court's use of foreign decisions: "'It's none of your business,' he said, referring to Congress. 'No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions.' The proposed legislation 'is like telling us not to use certain principles of logic,' he said, adding: 'Let us make our mistakes just as we let you make yours.'" More (Washington Post 05.19.2006). Earlier. An American provincial discovers Europe - Annals of American provincialism - judicial variety.

    'Pack rats,' as in 'court packers.' "Social conservatives are increasingly furious that Bush's war and his tax cuts have taken priority over his campaign promises to remake the federal bench. These groups don't much care about the president; they just think the next few months may be their last chance to cram a huge boatload of nut jobs into the courts before the doors to the White House and Congress slam shut...." Dahlia Lithwick, Pack Rats (Slate 05.19.2006).

    Judge gets reprimanded for romance. "The state Supreme Court will publicly admonish Lee County Judge James R. Adams next month for his romance with a lawyer practicing before his court. Florida's high court Thursday ordered Adams to appear June 7 for the public reprimand, but it declined to impose a stiffer punishment for granting dismissals and continuances in cases lawyer Kennetha Lynn Donahue had in his court...." More (Tallahassee Democrat 05.19.2006). Earlier entry. Want another post-Valentine's Day downer? - Valentine's Day links.

    Supreme cout clears dead trial judge of misconduct claim. "The California Supreme Court on Thursday rejected claims that a judge [who was Jewish] advised a prosecutor to remove prospective jurors from a death penalty trial because they were Jewish. The justices found insufficient evidence of misconduct by Alameda County Superior Court Judge Stanley Golde, who died in 1998. A misconduct finding could have led the courts to overturn dozens of death sentences...." More (L.A. Times 05.19.2006).

    Controversial judge, facing ouster, quits. "The long, strange saga of Quebec youth court Judge Andrée Ruffo has ended with the controversial jurist stepping down just as the Supreme Court paved the way for her ouster from the bench. Ruffo...has been fighting ethics complaints -- and efforts to fire her -- for more than 10 years. But yesterday she said the inherent 'tribalism' of the judicial community won out and that it was impossible for her to continue in a job where colleagues saw her as a liability...In almost two decades on the bench Ruffo, 63, faced a dozen official reprimands and was accused of a litany of judicial sins...Ruffo once sent two children to sleep in the provincial health minister's office to underscore a lack of foster-care beds...." More (Toronto Star 05.19.2006). Comment. I know nothing about Judge Ruffo's alleged judicial sins, but, as a longtime student of human nature and group behavior, I am intrigued by Judge Ruffo's reference to the "tribalism" of the judicial community and I hope that the judge will expand upon this, perhaps in a book, at some point. Sometimes I think sociologists, those "scientists" of how people behave in and because of groups, might find fertile ground for study in the group-think that prevails among those who wield and those who influence the awarding of judicial power. The late C. Wright Mills (1916-1962), a great sociologist, wrote an influential book titled The Power Elite in the 1950s. I read it in a wonderful course taught at the U. of MN in the early '60's by the late Arnold Rose, a brilliant sociologist who was also a DFL legislator. For some of my early musings on whether there is an "invisible" power elite in Minnesota and, if so, the extent to which that elite gets its way in running the state judicial system, go to BurtLaw on Politics & scroll down to "'Power elite' in MN?" For a good introductory explanation of "group-think," including the typical "symptoms" of it, see, this excerpt from E. Griffin, A First Look at Communication Theory c. 18 (1997). Mills' book, by the way, was published 50 years ago, an anniversary that occasioned another look at the book in The New York Times Sunday Book Review on 05.14.2006 in a review by Harvard intellectual historian John H. Summers titled The Deciders:

    More on 'failure.' The other day we posted some links and musings on The role of failure in success. This morning, while looking for something else, I came across this worthy addition: "To participate in public life...requires something [the late sociologist David Riesman] called 'the nerve of failure' and defined as 'the courage to face aloneness and the possibility of defeat in one's personal life or one's work without being morally destroyed.'" Orlando Patterson, professor of sociology at Harvard, in "The Last Sociologist" on Op/Ed page of the NYT (05.19.2002).

    More than 15,000 march to protest shooting of judges. "More than 15,000 Turks, including judges and lawyers, marched in the capital Thursday to condemn a shooting by a suspected Islamic fundamentalist that killed one judge and wounded four others...." More (International Herald-Tribune 05.18.2006).

    Judge suspended after arrest for exposure. "A National Horse Show Commission official has suspended one of more than 200 horse show judges as a result of his arrest on two charges of indecent exposure at different times to motel housekeeping staffers, according to the NHSC's executive vice president...." More (Shelbyville Times-Gazette - TN 05.18.2006). Comment. To paraphrase Gertrude Stein, "A judge is a judge is a judge" -- right? Cf., David Hasselhoff is named a judge (BBC News 05.19.2006).

    Judge 'fesses up over reason for absence. "A state district judge who dropped from sight during a recent criminal trial admits he lied about having suffered a heart attack. Judge John Pope of Los Lunas fessed up to the state Judicial Standards Commission admitting it was alcohol abuse -- not a heart attack -- that caused his absence...." The judge has agreed to enter rehab and to remain on permanent supervised probation on his return to the bench. More (KRQE News 13 - NM 05.18.2006).

    Getting judge's ear on taxpayer's dime. "Schoolchildren aren't the only folks Michigan taxpayers pay to educate. Each year, all of the state's 617 judges participate in two days of seminars designed to sharpen their legal skills. Attendance is compulsory...[T]he most striking thing was that six of the 30 workshops were sponsored by the Law & Economics Center (LEC), a nonprofit organization whose antiregulatory, market-oriented seminars for judges have been the object of controversy since a 2001 expose by the ABC News show 20/20...." More (Detroit Free Press - Opinion piece by Brian Dickerson 05.17.2006). Response. Dickerson's piece "overwrought" (Detroit Free Press 05.22.2006).

    Latest on investigation into justice's questionable lunch with lawmaker. "A five-minute conversation about school finance at a Mexican restaurant has raised questions about the credibility of the Kansas Supreme Court and led to an unprecedented ethics investigation against one of its justices. Justice Lawton Nuss lunched with the Senate president and another senator, as legislators were debating proposals to satisfy Supreme Court mandates to increase aid to public schools...." More (Wichita Eagle 05.17.2006). Comment. One of my favorite teachers at Harvard Law School, Andrew L. Kaufman, is quoted in the piece as saying, "Sometimes people slip. Sometimes they just think, 'I'm going to accomplish something here.' The ethics issues may be deep in the brain, and they're not thinking about it at the moment." This sort of ties in with what I wrote the other day in a mini-essay titled The role of failure in success (where I ask, inter alia, "[I]n view of the pervasiveness and democratic equality of failure and of its importance to the human condition and to our success as a species, might we expect too much of judges in literally expecting them to be perfect and never to fail?" Further reading. State supreme court justices under investigation around U.S. See, also, Mn Bd. to investigate all seven supremes, along with Updates on MN's he-said/she said controversy involving senator, justices. And see, Prof. Andrew L. Kaufman, "Judicial Ethics: The Less-Often Asked Questions," 64 Wash. L. Rev. 851, 862 (1989). Update. Rep. questions legality of committee investigating supreme court justice.

    Gunman attacks five Turkish judges over head-scarf decision. "A gunman opened fire in Turkey's highest administrative court Wednesday, wounding five judges in an attack he called retaliation for a recent decision against a teacher who wore an Islamic-style head scarf, officials said...The attacker...chanted 'Allahu akbar!' or  'God is Great,' as he fired...." More (FOX News 05.17.2006). Comment. Back around 1970 I attended a poetry reading by former Senator Eugene J. McCarthy, who died last year. One line from one poem: "Ideologies do not bleed./ They only bloody the world." This applies, of course, to all ideologies, even our own.

    Riding the circuit. "Two Supreme court Judges from Australia have been sworn in by the Samoan Head of state, Susuga Malietoa Tanumafili II...." The two judges' stint in Samoa will last two months. More (Radio New Zealand 05.18.2006). Comment. We trust the judges will experience precisely the same traditional Polynesian hospitality that Eugène Henri Paul Gauguin, the Post-Impressionist painter, experienced during his longer stays.

    If the law is an ass, doesn't it deserve a good sofa on which to sit? Last Friday, 05.12.2006, the BBC News website posted this item in its summary of news from various Northern Ireland newspapers:

The Irish News is concerned about the amount of money being spent keeping our judges comfortable between court cases. Apparently the Court Service recently spent more than £3,200 for an imported three-seater sofa. The paper itself attempted to track down a more expensive sofa in Belfast but could not find one. The closest they got was £2,800.

The Belfast Telegraph today opines that the judge shouldn't be required to sit on a pumpkin but should have his velvet cushion:

[S]ofas seem to be the big thing at the moment. Practically every other ad on TV is trying to coax you to buy a settee to jump around on. If Justice Bufton Tufton set his heart on a bespoke sofa on which to read through the notes on a grisly dismemberment before sentencing, then that's not much to ask, is it? If the law's an ass, then it should at least be sitting in well-upholstered comfort.

More (Belfast Telegraph 05.16.2006). Comment. While we don't know the full story, it just may be that the taxpaying public -- which isn't big on fine distinctions -- allowed its anger over a recent scandal involving a deputy prime minister, his secretary and a sofa to transfer unfairly onto the judge. Read on....

The Deputy PM, "[John] Prescott and 43-year-old Tracey, who is in charge of his diary, started meeting in secret at his Whitehall flat after their two-year fling began at an office party. Staff are said to have been shocked by the way she and Mr Prescott flirted at work. Once they were allegedly caught cuddling in a lift. Another time, as the deputy Prime Minister hosted drinks in his office for Ministers, officials and senior police officers, Mr Prescott and Tracey lay on the sofa cuddling each other.

More (icWales 05.16.2006). We are absolutely certain the judge, whoever he is, simply wanted a good comfortable sofa for no other reason than to sit on it while innocently and diligently reading briefs, not while wearing only briefs. However, we can't help noting that if the judge had been a regular reader of The Daily Judge, he'd never have asked for or accepted a deluxe sofa. See, Annals of judicial chambers makeovers, which includes our award-winning (well, not really) mini-essay titled "Reining in those wild-spending judges."

    Judicial moonlighting in Israel. "The illegal-moonlighting days of scores of judges may be numbered. For years, judges have been ignoring a law that requires them to get permission from the Supreme Court president and the Ministry of Justice before taking on outside work. Two years ago at least 70 judges out of 550 were doing extra, unauthorized work on the side. In the past several months steps have been taken to eliminate the practice. The Courts Administration says it does not know of a single case of unauthorized moonlighting today...." More (Haaretz 05.16.2006). Comment. The story goes on to say that "some 200" out of the 550 have obtained permission to engage in outside work and that around 20 requests have been denied. Apparently a separate regulation prevents a judge from "engaging in a judicial job in a 'voluntary body,'" e.g., working "as arbitrators in the Israel Basketball Association's disciplinary tribunal." Query. Does this latter regulation mean a judge can't serve as an unpaid judge of a swimsuit or beauty pageant (or is "scholarship pageant" the euphemism now?), can't act as unpaid referee in a youth sports league, can't serve as unpaid judge of a statewide high school student essay competition? Apparently so, but, if so, we think the Ministry of Justice is wrong. See, a) Ethics 101 - May a common law judge serve as judge of beauty pageant? b) The Rule of Law & beauty pageant judging, and c) Judges in high demand; availability trumps other qualifications, where we said, in part:

What better way to reach out & touch lots of voters than to volunteer your much-needed & apparently freely-available time to serve as county fair judges. Look at it this way, you can go to the fair for free, meet the voters, & get reimbursed for your expenses without using any of your vacation time. Life is good.

Notes. a) An entirely different issue, separate from whether a judge may serve as a judge of a swimsuit competition, is the issue, e.g., when and under what circumstances a judge may appropriately wear a swimsuit. We discuss that important judicial issue in our special collector's limited edition swimsuit issue, BurtLaw's Law & Swimsuits. b) My main judicial hero, Justice Holmes, enjoyed risque burlesque shows, pretty women, and racy French novels. When he was eighty and spotted a pretty woman, he said, "Ah, to be seventy again!" He was heard to say on more than one occasion, relating to his interest in burlesque, "I thank God I'm a man of low taste." All of which prompts me to ask, If the beauty pageant had been invented in his time, might Holmes have been not just the greatest common law judge in the history of Anglo-American Law but the greatest common law beauty contest judge of all time? Sadly, we can only speculate. Further reading. BurtLaw's Dog Judging, Jam&Jelly Judging, Etc.

    Annals of judicial applicant screenings. "The issue of improper questioning of judicial candidates emerged anew during last week's Judicial Nominating Commission interviews of applicants for a 3rd District Court of Appeal seat. During interviews on May 9, JNC member Hector Lombana, a Coral Gables, Fla., lawyer, asked candidate Barbara Lagoa, a federal prosecutor who recently gave birth to twins, whether she felt she could balance motherhood and the workload of serving on the 3rd DCA...." More (Daily Business Review via Law.Com 05.16.2006). Comment. Many of those who are able to readily spot the currently-agreed-upon inappropriateness of this question and others like it feel good about themselves, and we congratulate them on their ability to follow one of the current judicial interview norms. We also remind them it's possible that attempts to sanitize the interview process may be so successful as to make it impossible to make a reasonable and meaningful assessment of the relative job-related virtues of the applicants.

    Church celebrates 50th anniversary with courthouse service. "Calvary Baptist Church celebrated 50 years in Olney with a special service Saturday at the congregation's original meeting spot at the Richland County Courthouse..."
More (Olney Daily Mail - Illinois 05.16.2006). Comment. We send our best wishes to the members of Calvary Baptist. We have no problem with a congregation's being permitted to hold services in a courthouse, provided any other religious group -- or, for that matter, any non-religious or anti-religious group -- is allowed to hold services there on similar terms.

    The role of failure in success. "Failure 101. That is the nickname of an engineering course Henry Petroski describes in his new book, Success Through Failure: The Paradox of Design (Princeton University Press)...Failure, Mr. Petroski shows, works. Or rather, engineers only learn from things that fail...Everything that is designed fails, and everything that fails leads to better design...But the unprecedented success of technology in the last 50 years may have also created an expectation that failure should be anticipated and eliminated in all aspects of life. This leaves less and less tolerance for its inevitable persistence. That is understandable in deciding whether bolts or welds should be used in a skyscraper...But that absolutist approach also entails unexpected sacrifices in other aspects of life, particularly when avoidance of failure and accident becomes the guiding principle for future design and behavior...." From Edward Rothstein, Form Follows Function: Now Go Out and Cut the Grass (N.Y. Times 05.16.2006). Comment. Justice Holmes spoke eloquently of all the things "we" learned "with all our failures in act and thought...from noble enemies":

Perhaps it is not vain for us to tell the new generation what we learned in our day, and what we still believe. That the joy of life is living, is to put out all one's powers as far as they will go; that the measure of power is obstacles overcome; to ride boldly at what is in front of you, be it fence or enemy: to pray, not for comfort, but for combat; to keep the soldier's faith against the doubts of civil life, more besetting and harder to overcome than all the misgivings of the battlefield, and to remember that duty is not to be proved in the evil day, but then to be obeyed unquestioning; to love glory more than the temptations of wallowing ease, but to know that one's final judge and only rival is oneself; with all our failures in act and thought, these things we learned from noble enemies in Virginia or Georgia or on the Mississippi, thirty years ago; these things, we believe to be true.

From Justice Holmes' A Soldier's Faith, a Memorial Day Address to the graduating class at Harvard College on May 30, 1895, a speech that, by the way, caught the eye of Teddy Roosevelt, who later named Holmes to the U.S. Supreme Court. And here is part of what the great William James, Justice Holmes' intellectual soul mate in the mid-1860's, had to say about failure:

Failure, then, failure! so the world stamps us at every turn. We strew it with our blunders, our misdeeds, our lost opportunities, with all the memorials of our inadequacy to our vocation. And with what a damning emphasis does it then blot us out! No easy fine, no mere apology or formal expiation, will satisfy the world's demands, but every pound of flesh exacted is soaked with all its blood. The subtlest forms of suffering known to man are connected with the poisonous humiliations incidental to these results.

And they are pivotal human experiences. A process so ubiquitous and everlasting is evidently an integral part of life. "There is indeed one element in human destiny," Robert Louis Stevenson writes, "that not blindness itself can controvert. Whatever else we are intended to do, we are not intended to succeed; failure is the fate allotted." (He adds with characteristic healthy-mindedness: "Our business is to continue to fail in good spirits.") And our nature being thus rooted in failure, is it any wonder that theologians should have held it to be essential, and thought that only through the personal experience of humiliation which it engenders the deeper sense of life's significance is reached?

From William James, The Sick Soul: Failure or Vain Success of Everyday Life, in Chapters VI and VII of The Varieties of Religious Experience (1902). Cf., Robert Frost, "The Fear of God," especially 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/ Won’t bear too critical examination...." Methinks -- and I'm just riffing right now -- that the greatness of the Common Law is wholly or in great part attributable to, inter alia, the willingness of its secular priests a) to stride the boundary between rigid devotion to the past and naive belief that all change is good, b) to practice a Jamesian-Holmesian pragmatism, learning both from past experimentation and from ongoing experimentation and the inevitable failure that accompanies it, and c) to value that which works without embracing the unprincipled utilitarianism which is Fascism. Methinks, also, that in view of the pervasiveness and democratic equality of failure and of its importance to the human condition and to our success as a species, might we expect too much of judges in literally expecting them to be perfect and never to fail? And how good a judge is The Perfect Man who has never failed and never had the soul-stretching pain and pleasure of learning from failure?

    Judge Wattson's amazing courthouse adventure. "A power outage forced the evacuation of the Milwaukee County Courthouse just after 3:30 p.m. Monday ...The county decided to close the building for the rest of the day, since the outage happened so close to the building's regular closing time...." More (Milwaukee Channel 05.15.2006). Comment. Judge Watt Wattson, with earphones connected to his "Judicial Black Special Edition I-Pod," was last seen stutter-stepping his way, Gene-Kelly-style, past the fuse box and out a quick-exit side door on his way to an afternoon golf outing. "Two can play this game, Poseidon," he was heard rapping. Earlier. Judge Poseidon's Amazing Courthouse Adventure.

    Tony Blair plays the 'judge card.' "In a speech in London, Mr. Blair said the criminal justice system is the one public service that is 'most distant from what reasonable people want.'...." Blair: British judges out of touch with people (Voice of America 05.15.2006). See, also, Blair moves to limit courts' power (N.Y. Times 05.15.2006); Stop blaming the Human Rights Act (Guardian UK 05.15.2006). Comment. Like Bush, P.M. Blair is in political trouble; like Bush, he's playing the "judge card." See, Playing the 'judge card' again. See, also, Playing the 'sex crime card.'

    Defendant says he killed judges on orders from Allah. "JMB supremo Abdur Rahman facing trial in the judges murder case yesterday claimed in the court that he should be rewarded for abiding by the instruction of Allah...." More (The Daily Star - Bangladesh 05.15.2006).

    Apology for lynching is read to courthouse crowd. Today, May 15, is the 90th anniversary of "the 1916 torture and lynching of Jesse Washington on Waco’s town square. Washington, a black teen, had been hastily convicted at the courthouse of the murder of a white woman in Robinson...." According to The Waco Tribune News, "Members of Waco’s Community Race Relations Coalition and several civic leaders took part this morning in a ceremonial courthouse reading of a resolution apologizing for the mob violence and lynching culture that tarnished the city’s image," but county commissioners and city council members aren't sure if they'll sign it without its being reworded. More (Waco Tribune News 05.15.2006).

    Judge Poseidon's Amazing Courthouse Adventure. "Workers demolishing the Milwaukee County Courthouse annex tore through a water main Friday. Thousands of gallons of water rushed through the basement of the courthouse before they entered the sewers. Water closed off the basement level and shut down the elevators for the day...." More (Milwaukee Channel 05.12.2006). Comment. Judge Horatio Poseidon was last seen surfing down the basement corridor on his way to an afternoon golf outing.

    State supreme court justices under investigation around U.S. The Kansas City Star has a brief but interesting factual piece listing the states in which high court judges either are under investigation or in recent months or years were under investigation as a result of ethics complaints. The states mentioned in the piece are: Alabama, Connecticut, Illinois, Kansas, Minnesota, Mississippi, New Hampshire, Ohio, Pennsylvania, and Rhode Island. More (Kansas City Star 05.12.2006). Comment. We're sorry to see all seven members of the Minnesota Supreme Court, an institution we served loyally for nearly 29 years, on this sad list. See, Mn Bd. to investigate all seven supremes, along with Updates on MN's he-said/she said controversy involving senator, justices. We trust that the investigation by the judicial conduct board will be a thorough and fair one that will withstand intense public scrutiny and that, whatever the outcome, the court as an institution will not be harmed any more than it already has been harmed.

    Will computer-illiterate judges be fired? "Justice Antonio T. Carpio, chair of the Supreme Court’s Committee on Computerization and Library, is one of the key figures in the Court’s modernization efforts. A passionate advocate of the use of technology to improve the efficiency of our courts, his proposals -- which include the establishment of the E-Library -- have done much to bring our courts into the information age. His recommendations, however, do not include firing computer-illiterate judges for 'gross ignorance,' as reported in the news item headlined 'Low-tech judges could be fired for gross ignorance' by Delmar Cariño. (Inquirer, 4/27/06)...." More (Philippine Daily Inquirer 05.13.2006). Comment. It turns out Justice Carpio was being "facetious" in making remarks about the possible consequences to judges unwilling or unable to learn to use court computers. We're not convinced that computer literacy says anything about a judge's competence to judge.

    Justice Alito admits to being 'disoriented' by satirical piece about him. "Shortly following his confirmation to the U.S. Supreme Court, Justice Samuel Alito read a story in The Onion suggesting that he was annoying his new colleagues by going on about how much better things were run on his old home turf, the 3rd U.S. Circuit Court of Appeals. 'It was very disorienting,' Alito confessed...." More (National Law Journal via Biz.Yahoo 05.12.2006). Further reading. The story in question appeared in The Onion on 02.20.2006: "Supreme Court sources say the 'Third Circuit anecdotes' told by newest associate justice Samuel Alito are irritating his colleagues...."

    Judges leading a revolution? "A revolution led by judges? It is a contradiction in terms. Judges are traditionally regarded as conservative. In the classic three pillars of the state, the judiciary is charged with the role of interpreting the laws and especially the constitution, which is the mother of all laws. But this is Africa and nothing is clear-cut. Judges have often been used to rubber-stamp a regime’s wishes. In Togo after the demise of Gnassingbe Eyadema, the judges hastily swore in his son as the new president. Those judges proudly posed for a group photograph to mark an act that was later to be nullified as unconstitutional. In Tanzania, however, judges are spearheading constitutional reform...." More (East African - Kenya 05.15.2006). Comment. Interesting piece by Michael Okema, "a political scientist based in Dar es Salaam." Worth reading in its entirety.

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

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Affiliated Web sites

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

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

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

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

Favorite Websites
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