"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Thursday, August 20, 2015
Do we need to choose between donkeys and elephants on the bench?
My readers are understandably concerned about methods used by Judge Fisher and her husband in Judge Fisher's election campaign, they are understandably upset about Judge Fisher enthusiastically discussing her methods in an article called "Business Challenge". Running for public office, a judicial office as a business challenge was not perceived well by my readers - and rightfully so.
Law students are taught that considering even the practice of law as a "business" is unethical because lawyers prefer to consider it as a "service" to the people by sworn officers of the court.
When a judge admits that for her, judicial elections was a "business challenge", such a question raises all kinds of ethical questions.
Based on the feedback, I will run several other blogs, covering separately the issues raised.
The first is partisanship of judicial elections.
Judge Lisa M. Fisher lamented in the interview that there were no Republican judges elected to the Supreme Court bench in the 3rd Judicial District of New York in 18 years.
Now, tell me, why the tears and what difference does it make if the judge on the bench is a donkey or an elephant? To me, the judge should not be any of these animals and should be a neutral adjudicator.
So why parties are so eager to put "their own" on the bench? Is it because, with all the lip service as to the "duty of impartiality", everybody "in the game" understands that there is no such thing as judicial impartiality and that whoever helped get the judge on the bench, as well as the party members belonging to the same pack as the judge, will get a preferential treatment for years to come? Supreme Court terms in New York are very long - 14 years, and usually, once a judge got on that bench, he or she sticks to it until mandatory retirement at 70.
Lisa Fisher was elected at 47, so whoever contributed to her campaign, were contributed to 23 years of favors?
Lisa Fisher actually hinted that she did not have to offer contributors "as much" as candidates for a Senator's seat.
First, voters, take notice not to EVER allow Lisa Fisher into a Senator's seat, with such views that she has a lot to "offer" her campaign contributors.
Second, the first thing that Lisa Fisher did when she was elected to office was to create and enforce an extremely pro-plaintiff (pro-corporation?) set of "local rules" which can have an appearance of reimbursing contributors - most of them attorneys, her attorney-husband's friends. By the way, one of the readers noted that in the interview the husband was taking the lead over Judge Fisher all the time. I wonder if he is going to take the invisible lead in her cases and her rulings the same way...
So, the question remains - WHY do we even allow judicial elections to "run" on party lines instead of simply the merits of qualified candidates?
In the upcoming elections, please, don't let yourself be swayed by the "party appeal" - or other issues unrelated to qualifications for the office.
That can be deadly to yourself and your loved ones when an unqualified individual, once elected, starts giving out "reimbursements".