"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 11, 2016
An update on the Kentucky #JudgeOluStevens' case - unfortunately, Judge Stevens chose to sell his constitutional rights in order to keep his livelihood. Judge Stevens won (his job back), the constitutients, voters and litigants lost.
Judge Stevens also made comments about the case and racism of the prosecutor after the case was already concluded - and nothing prevented the judge from making such comments after the case concluded, the judge's comments were fully protected by the 1st Amendment.
Yet, Judge Stevens was targeted by a racist judicially disciplinary process in the State of Kentucky where, as in other states, judges are forgiven for anything short of screaming murder, with the exception of going against the old white male establishment.
Judge Stevens had a choice - as all of us do - as to how to handle the situation, whether to go all the way and fight the unconstitutional investigation and disciplinary proceeding, or to cave in and save his highly paid position on the bench and his law license, because nowadays in America it is either - or.
I regret to state that Judge Stevens chose to save himself, his job, his salary, his career and his law license.
At first, Judge Stevens was vigorously prosecuting his constitutional rights, and even filed a federal lawsuit against the possible disciplinary action against him.
That was at the beginning of April of 2016.
Then, concessions to pressure started.
By mid-April of 2016, Judge Stevens voluntarily agreed (I do not know what kind of pressure was put on him to do that) to a temporary disciplinary suspension - a paid suspension.
Then, in rapid succession, with the disciplinary proceedings still pending against him, Judge Stevens first dropped his federal lawsuit on August 4, 2016 - I was immediately on the alert of some kind of plea bargain in the disciplinary case - and then, Judge Stevens agreed to a relatively light discipline of suspension without pay for 90 days until October 30, 2016, 4 days after Judge Stevens' dropped his federal lawsuit against the State of Kentucky.
What can I say.
Of course, everybody has a right to protect his own livelihood - and that of his family.
Yet, what a terrible example Judge Stevens has set and what a terrible message Judge Stevens has sent to his constituents, voters, litigants and attorneys - and to other judges, of course:
1) that free speech may be chilled;
2) that judicial independence is a fake concept, and may be easily chilled by discipline - when the judge, in doing his job, stepped on the toes of the ol' white boys' club;
3) that the government may be allowed to punish an individual, as high-ranking as a judge, for doing his job and for constitutionally protected conduct;
4) that an individual has no protection from courts, and has to cave in and agree to a clearly unconstitutional discipline in exchange for keeping his livelihood.
This deal does not portray the legal profession as honorable.
This deal does not portray the judiciary as honorable, independent or courageous.
This deal is cowardly.
This deal is showing to ordinary people without status in American courts that, if a judge had to sell his constitutional rights in order to keep his livelihood, ordinary Americans have no chance to get protections of their rights in American courts.
And, in the future, after the suspension runs its course, what are criminal defendants to expect of Judge Stevens in the courtroom - that he will be timid now, look around his shoulder and not dare to take on racism in his courtroom?
So, what is the point of keeping this judge on the bench then?
Judge Stevens did not commit anything wrong - save selling his constitutional rights in exchange for keeping his position, status, job, salary and law license.
But, this nation already has enough of judges bowing to establishment and putting the rule of law in disrepute.
We do not need another one just like that.