"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.
Wednesday, October 26, 2016
The "Roy Moore" full-panel judicial recusal in the Alabama Supreme Court, the "Katrina" partial-panel recusal at the U.S. 5th Circuit and the necessity for a "special U.S. Supreme Court"
While many times judges have personal knowledge of litigated facts, and in most cases they stick like glue to those cases and decide them for parties they favor, in this case the sheer rank of the litigant, the judge's prior boss - who may well get back into saddle as a result of that appeal and become their actual boss once again - dictated the recusals, apparently out of caution and self-preservation.
Back in 2010, there was a similar recusal with dissimilar results in the U.S. Court of Appeals for the 5th Circuit, where 8 judges recused from hearing an appeal because judges held stocks in companies that appeared as defendants in that court case.
Yet, contrary to what happened in Alabama where a procedure was devised to not deprive Chief Judge Roy Moore of access to court, even though the entire appellate court recused from hearing his appeal, the 5th Circuit simply refused to hear the petition for rehearing "en banc" (by a full court) - and provided to the litigants no alternative for the procedural step they were entitled to.
A good case for a full recusal of the U.S. Supreme Court presented itself in 2016 in a case against the U.S. Supreme Court Marshall, seeking to strike the federal law prohibiting protests in the plaza in front of the U.S. Supreme Court.
I admire the courage of the district judge Beryl A. Howell
of the lower federal court who has stood up for the U.S. Constitution and the 1st Amendment that she was sworn to protect, stood up to the powerful U.S. Supreme Court, and who has struck the ban on protests in the plaza in front of the U.S. Supreme Court, here is judge Howell's decision.
Yet, an obedient federal appellate court panel consisting of one senior judge, judge Steven Williams, here is his biography and picture
and two hopefuls for the U.S. Supreme Court justice positions , D.C. Circuit judges Karen L. Henderson,
and judge Sri Srinivasan, who is on President Obama's "short list" for U.S. Supreme Court Justices - and who, likely, will be on the short list of President Hillary Clinton, if she is elected,
self-servingly reinstated the ban.
Naturally, the truly honorable, competent and courageous Judge Howell is not on a "short list" for the U.S. Supreme Court nomination, the brown-nosing Judge Srinivasan is.
That was a good case for a full-court recusal and for a "Special U.S. Supreme Court", like Alabama did, since the case is self-serving for the High Court, where all justices of the sitting U.S. Supreme Court had a conflict of interest in taking the case and deciding it in favor of its own marshals and in favor of their own desire to go to work without being annoyed by the pesky protestors in front of their courthouse.
But instead of recusing and allowing for convention of a "Special U.S. Supreme Court" to hear this important case, the U.S. Supreme Court self-servingly denied the petition to reverse the appellate court decision and reinstate the decision of the district court
despite the obvious conflict of interest of ALL justices of the court - same as in Alabama, but with dissimilar results. In other words, the U.S. Supreme Court ruled for itself and for its own Marshall. Without any compunction or scruples.
Somehow, state judges in Alabama Supreme Court had more integrity than federal judges on the issue of recusal in self-serving cases. Well, in the U.S. Court of Appeals for the 5th Circuit judges, unlike "justices" of the U.S. Supreme Court at least had the decency to recuse from cases where they had a personal interest.
The Alabama Supreme Court recusal and a "Special Supreme Court" procedure sets up an important precedent making available an alternative procedure to the self-serving doctrine of an interested court sitting "in necessity" because there is nobody else to review a case where judges of the court have a personal interest. Apparently, there are other people to review such cases, and there may be procedures provided for such a review.
The Alabama Supreme Court decision should give an example to other states, to federal courts and to the U.S. Congress to create a procedure of appointment of "special courts" in cases involving a conflict of interest for all judges of a certain federal court, because, apparently, on their own federal courts will not do what is right without being forced to do that by Congress.
And, where integrity of federal judges, even those of the highest court of the country, is at such an unfortunate low that they would decide cases in favor of themselves and their employees without recusing themselves, that is a big problem in the country where federal judges are the last resort for victims of human rights violations.