"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, October 1, 2015
Are U.S. Supreme Court justices denying constitutional appeals in death penalty cases because of the threat of impeachment from Congress?
Richard Glossip was not executed only because the Oklahoma Governor issued a last-minute stay of execution for 37 days, exclusively because the Oklahoma Department of Corrections did not have the "right" drug for execution.
There was, reportedly, a lone dissenter as to denials of appeals by the U.S. Supreme Court - justice Stephen Breyer.
That is, Justice Stephen Breyer who recently published a book "The Courts and the World" where he discusses - at least somewhat - the death penalty and why the U.S. Supreme Court is not abolishing it.
A lot is said in this country about the necessity of judicial independence.
The completely insane concept of absolute judicial immunity for MALICIOUS and CORRUPT acts on the bench was introduced and enforced by all courts in this country allegedly because of the need to protect independence of judicial decisions.
From how the U.S. Supreme Court rules, it often seems that the U.S. Supreme Court IS the ultimate government in the United States and fears for nothing - there is no discipline of such judges, no punishment for failure to recuse, and there is no history that a U.S. Supreme Court justice was ever impeached.
Yet, in his book "The Courts and the World", the U.S. Supreme Court Justice Stephen Breyer states at the Location 5161 (I have a Kindle version) the following:
"Seventy-four members of Congress sponsored
legislation in 2004 stating 'that judicial determinations
regarding the meaning of the laws of the United
States should not be based in whole or in part
on judgments, laws, or pronouncements of
foreign institutions unless such foreign judgments,
laws, or pronouncements ... inform an understanding
of the original meaning of the laws of the United
and that the "sponsoring member of the House said that were the bill to become law, judges who deliberately violated it might 'subject themselves to the ultimate remedy which would be impeachment".
The statement that is quoted is the Statement of Rep. Nadler quoting Rep. Feeney on the "Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on H. Res. 568 before the H. Comm. on the Judiciary, 108th Cong. (2004), footnote 12 in Judge Stephen Breyer's book.
It is very obvious that prohibiting judges to rely upon foreign law in making their judicial decisions is undermining their independence, SEVERELY so when a threat of impeachment is clearly on the table for the contents of judicial decisions.
It is also very obvious that such law, if passed by the U.S. Congress, may be very well in violation of the Supremacy Clause of the U.S. Constitution that all legislators are sworn to uphold, because the Supremacy Clause includes International Treaties where the United States participates, and many foreign decisions may be based on the spirit, if not the letter of such Treaties.
Yet, the threat of impeachment for relying on what the world thinks of the shifts in the law - including the shifts in what is deemed by the international legal community basic human rights - is there.
Judges of the U.S. Supreme Court are appointed for life, it is a well-paid and prestigious job, and being booted off the U.S. Supreme Court would be the ultimate disgrace for any respectable judge.
A lot of arguments for abolition of the death penalty in the United States are based specifically on the concept that death penalty has been long abolished in other civilized countries, or, rather, in civilized countries, period, because the United States cannot call itself a civilized country while continuing to act as a serial killer in order to show that killing is wrong.
So, when you are seeing that the U.S. Supreme Court - once again - denied a death penalty appeal, that can be because judicial independence of that court is undermined by the death penalty lobby in the U.S. legislature, the legislature that does not care to introduce bills to abolish absolute judicial immunity for malicious and corrupt acts on the bench, but would impeach a judge for bringing the state of human rights in the United States up to par with what it is in the international legal community.
And - when judges still dissent and vote to grant such an appeal, like Stephen Breyer did yesterday for Richard Glossip, a lonely dissent, I must stay, that means some courage, even if Stephen Breyer does not consistently dissent on all denials of death penalty appeals.