The schizophrenic dissent of the 9th Circuit re Trump's executive order - continuing to call for public respect of judges' dishonorable actions will only breed more public contempt of the judiciary

On March 6, 2017 President Trump issued his new Executive Order on immigration.

At that point, a lawsuit against his first executive order filed by the State of Hawaii on February 3, 2017 was pending in federal court.

On March 7, 2017 President Trump's administration has filed in the U.S Court of Appeals for the 9th Circuit a motion to withdraw its interlocutory (from an intermediate decision) appeal of the temporary restraining order imposed by federal district judge Robart, on consent with Appellants.

On the same day, March 7, 2017, the State of Hawaii filed a motion to amend their complaint to now challenge President Trump's 2nd Executive Order - see docket of that case, Docket No. 58.

On March 8, 2017 the unopposed motion on consent of opponents, to withdraw President Trump's interlocutory appeal was granted, and the case was closed, as reflected on Pacer.gov.

On the same date, March 8, 2017, federal district court granted the motion to amend, making the State of Hawaii "the first state challenging President Trump's 2nd Executive order in court".  See docket of the case, docket No. 59.

By the way, consider the waste of public funds on that case, where in just a month an a half since the case was first filed on February 3, 2017, 222 docket entries were made in a federal district court case, more than an average federal court case would generate in several years.

On the same date, March 8, 2017, the State of Hawaii filed a motion for a temporary restraining order of the new executive order of President Trump, and the judge, Derrick Watson, scheduled a hearing on that motion for March 15, 2017, one day before the new executive order would come into effect.

After that, interesting things started to happen in the 9th Circuit where the appellate case was dismissed, jurisdiction of the court stopped, and all prior decisions on the dismissed appeal were rendered moot and void by the dismissal on March 8, 2017.

On March 15, 2017 the 9th Circuit denied an en banc application in the already dismissed appeal.

Of course, that application died a week prior because of the dismissal of the appeal, but lack of jurisdiction never stopped a judge willing to get some limelight for themselves, and especially a judge of the 9th Circuit.

On the same date, March 15, 2017 - I am not sure which was first and which was second, because the 9th Circuit decision to deny review of the already mooted decision in the dismissed appeal does not have a time-stamp - Judge Derrick Watson of the U.S. District Court for the District of Hawaii, a judge who accepts externships from the Hawaii State University School of Law (and, there is a question whether Hawaii State law students worked on his 46-page order in favor of their school) granted a temporary restraining order to the State of Hawaii.

So, it appears that not only the 9th Circuit revived jurisdiction in an already dead case in order to make the mooted, and dead, 3-judge decision of the 9th Circuit, appear alive and "precedential", but that it did it to pitch some support for the lower court judge who, same as the 9th Circuit, has connections to the Hawaii University Law School, a party in the lawsuit.

Judge Derrick Watson in the district court, of course, relied upon the decision of the 9th Circuit which, on the date of Judge Watson's decision (March 15, 2017) was void for a week - since the appeal in which it was made as an intermediate matter, was dismissed on consent of court on March 8, 2017.

The international law firm Hogan Lovells (with headquarters in London, Great Britain, reportedly, an 11th largest law firm in the world by revenues as of 2013) that represents the state of Hawaii in that case, at taxpayers expense, and that have drummed up that humongous docket of 222 entries within 1.5 months, is already drumming up business by advertising their "success" in blocking President Trump's travel ban on their website:

At the very same time the State of Hawaii stalls my Freedom of Information request by making it prohibitively expensive to get information as to who paid and how much was paid for vacationing, wining and dining of U.S. Supreme Court justices invited by that law school, including the bills of the U.S. Supreme Court Justice Ruth Ginsburg who vacationed in Hawaii, at the State of Hawaii's expense, during the pendency of the lawsuit in the Hawaii district court and right when the 9th Circuit has made its now-mooted (but, as 9th Circuit pretends, still alive) decision.  Ruth Ginsburg, as I said before, was vacationing within 7 miles of the chambers of one of the 9th Circuit judges who has made a decision, and had meetings with Hawaii State University Law School faculty, while three of Judge Clifton's law clerks:

• Joshua Korr;
• Aaron Henson; and
• Wayne Wagner

are currently part of that faculty, being professors at the Hawaii State University School of Law.  Nothing too crooked.

Here is the FOIA request that the Hawaii State University School of Law acknowledged, listing request for records about employment of Judge Clifton (the 9th Circuit judge whose chambers are located within 7 miles from the law school where Ruth Ginsburg visited at the time Judge Clifton was making his decision regarding President Trump's TRO and who himself enthusiastically participates in the law school's activities):

By the way, Joshua Korr, law clerk to Judge Clifton in the U.S. Court of Appeals for the 9th (federal) circuit (see his picture and information about him on the University of Hawaii School of Law as of today, which is a public record):

is listed as a law clerk for a state judge of the State of Hawaii in 2016, yet another "interesting" coincidence, further potentially miring the decision of Judge Clifton in conflicts of interest:

Here is the slideshow as to how well Ruth Ginsburg was entertained during her self-given vacation during work time in February of this year while she was likely help draft orders for the 9th Circuit, and for the Hawaii Federal district court, as well as when she was likely consulting the State of Hawaii how to fight President Trump (who she openly hates, and keeps making public statements against him, disregarding the fact that his case may come to her for review).

Watch how frail Ginsburg is - she literally cannot stand very well on her own.  How can she be allowed to handle a rigorous caseload of the U.S. Supreme Court, including death penalty cases? 

Note that Ruth Ginsburg is called here the State of Hawaii University School of Law's "Jurist in Residence" - and even that designation did not deter her from coming, at the time when the State of Hawaii is a party in a federal court litigation potentially heading towards the U.S. Supreme Court.

Here is the bill estimate, with a demand to pay 50% down, that I received from the State of Hawaii University Law School several days ago.  This information, public records of great public concern, showing whether judges of the U.S. Supreme Court, and of the 9th Circuit, are, very simply, bought by free vacations in Hawaii, should be published and available to the public for free, not hidden by allegedly high cost of research and retrieval.

185 hours to retrieve all records of who paid for judges wining and dining?  And, 45 more hours for "review and segregation"? Are those records so well hidden that it requires over 23 full working days (8 hours a day) of search?  Or are they so plentiful, which raises even more concerns, because the U.S. Supreme Court will, most likely, have to review a writ of certiorari from this case in the long run.

And, "another person" should be consulted about possible exemptions - who are those "other persons", I wonder - Ruth Ginsburg herself and other judges who were wined and dined and vacations for free in Hawaii?  Or their private sponsors who pitched in to defray some of the costs of providing freebies to the greedy millionaire judges who would not turn a freebie down even if that screams disqualifying conflict of interest?

So, here is the bill estimate and a bill for 50% of costs for public records as to who paid and how much was paid for wining and dining U.S. Supreme Court justices by the Hawaii University School of Law, a party in the action where a temporary restraining order upon President Trump's second executive order on immigration was imposed by a judge who has interns from Hawaii State University School of Law:

With that background in mind, let's look at the 5-judge dissent that the 9th Circuit considered possible to file (as well as a "majority" and a "concurring" opinion), and to file on March 15, 2017, a week after the appeal was dismissed by order of the same court - and thus jurisdiction in that appeal, FOR ALL PURPOSES, died as of that same date, making all orders in that appeal moot and void.

Here are the concurring and dissenting opinions regarding the belated denial of en banc review of the mooted 9th Circuit decision, I downloaded them directly from Pacer.gov.

On the one hand, the dissenting judges use pretty strong language to describe what the 9th Circuit 3-judge panel did when they refused to grant to President Trump a temporary stay of Judge Robart's unlawful decision (see analysis of judge Robart's decision here and of the 9th Circuit's decision here).

The 5 dissenting judges:

• Jay Bybee;

• Alex Kozinski;

• Consuelo Maria Callahan,

• Carlos Bea, and

• Sandra Segal Ikuta

branded the 9th Circuit decision as having made errors that "so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future".

That is pretty strong language.

It practically say that the 9th Circuit panel:

1) did not follow or apply the law;

2) created confusion and chaos in the law

where respect to judicial decisions heavily relies upon predictable and correct application of the law that is GIVEN to judges, not CREATED by them.

The dissenters confirmed their opinion that the 9th Circuit violated the constitutional separation of powers and wreaked havoc in federal case law:

Then, the dissenting opinion states, in exhaustive analysis, that only the President gets to decide issues of immigration policy, and that it is subject only to review whether there can be found any bona fide basis for the decision of the executive.

In that, the dissenting opinion did not even touch upon the question that aliens outside of the U.S. are not entitled to any constitutional rights, by the U.S. Supreme Court precedent, and thus, states, "standing in their shoes", do not have any standing to sue on their behalf either, as well as on their own behalf.

Moreover, the dissenters confirmed that courts should not, even in camera, review issues of national security that the President is debriefed on, and pointed out that it is wrong to expect the President to reveal his considerations for issuing the executive order because that would reveal contents of secret security briefings:

In fact, the dissenters not so subtly accused the 9th Circuit panel of trying to second-guess the results of presidential elections that vested President Trump with the discretion to decide issues of immigration policy, without second-guessing by courts:

Yet, after saying all those right words, the 5 dissenters then said something extraordinarily stupid - under the circumstances.

Look what these 5 dissenting judges are saying, in the same breath:

1) that the judges of the panel did not follow the law at all, creating confusion in courts as to what IS the law

which necessarily leads us to conclusion that these 5 judges, as well as those 3 judges they are criticizing, harbor a dangerous delusion that judges in the United States, and not the U.S. Constitution and written laws enacted by legislatures, as people's representatives, are sources of law, and

2) that when judges do not follow even their own "law" that they created - without authority - they still need to be respected and not criticized?

Considering any out of court criticism, any statements about court decisions which are less than deferential to judges, to be regarded as unacceptable "ad hominem" , personal attacks on judges?

I think we are beyond that hurdle already when even such a stronghold of deference to the judiciary, New York Law Journal, has published an article, specifically on Donald Trump's criticism of judges, fully supporting his criticism:

"If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name.  Otherwise, jurists can expect even sharper criticism than Trump's."

When judges, public servants, violate their own oath of office by not following the law and ruling based on their own political views - which is what obviously happened in the 9th Circuit decision - they are not entitled to respect of their employer, the public, no matter what honorary titles and names they bestow upon himself.

They can view themselves as honorable and distinguished, and they are still unruly and contemptible oath-breakers in the public eye if they MAKE the law instead of APPLYING the law in the decisions.

The dissent ended with interesting phrases:

But that's EXACTLY what courts are doing nowadays - setting policy instead of legislators and executives, instead of doing their duty and only APPLYING the law as written.

And, the dissent actually recognizes that what the 3-judge panel decided was not the law.

So, the dissenters must realize that the we have long passed the line where "we are not governed by law at all" - and that courts are the reason why that happened.

Yet, by placing respect to judges, even openly lawless judges, above all else, the dissenters showed that they are still very much members of a brotherhood that have long circled their wagons against their employer, the public, and that considers their own interests above all others, first and foremost.

To any reasonable person, calling for MORE respect to people who are engaged in actions that deserve NO respect, and actually DISCIPLINE for oath-breaking and of promises to follow the law and precedents made at each of the 3 judges' confirmation hearings in Congress - will not bring more respect to anybody.

It will bring less respect even to the dissenting judges themselves, and to the judiciary as a whole, because such feverish efforts to protect the judiciary from fair criticism - which does NOT have to be deferential, especially when judges openly refuse to follow the law and their own oath of office - and will bring further contempt to the judiciary as a whole.

When they act as politicians in black robes, they must be criticized for that behavior.

And criticized more, not less.

Because, as the dissent makes very obvious, there is just one thing that judges appointed for a lifetime fear - exposure of misconduct through harsh criticism.

And you know what comes when the public thinks lowly of the lawfulness of court decisions - because they are unlawful?

The public will start disregarding those decisions.

It is a matter of time when massive civil disobedience of unlawful court orders will start, and when that starts, the judiciary should look in the mirror to find the reason why that will start happening.

For example, the law may not possibly require President Trump, who has been sworn to uphold the U.S. Constitution, to follow an unconstitutional order of the 9th Circuit which even the fellow judges recognize is unconstitutional - not in so many words, but quite transparent (by saying that the decision will "confound" the U.S. Supreme Court and other courts as to "what the law is").

In fact, President Trump's oath of office requires to follow only his constitutionally vested duties, and to disregard any unconstitutional interference into his duties.

So, President Trump will be in the right if he would simply disregard orders of various federal courts acting as if presidential elections are still ongoing and as if judges are his political opponents in those elections.

President Trump already made a step towards that, by saying that, if his "honed down" executive order is also not good enough, he may just as well go back to his original order, which was perfectly good in the first place.

And let the dice roll.

Meltdown moments for judges

Michigan judge Lisa Gorcyca (the last name means "mustard" in Russian, by the way), whose outrageous behavior towards three children I described before on this blog, here and here, is now begging the disciplinary authorities not to suspend her for 30 days, and is using very interesting arguments to justify her begging.

She is, first, asserting a judge's right to a "meltdown" on the bench - claiming that her outrageous behavior, with multiple violations of the very basic constitutional rights of children - to counsel, to a hearing, to due process, to not be locked up for refusing to see their father because reportedly they were afraid of him - was just "one instance" of "lapse of judgment" in her otherwise stellar record.

That means that Gorcyca impliedly recognizes that there was a lapse of judgment.

Yet, at the same time, Gorcyca's lawyers were reportedly arguing that her behavior (the very same which she recognized was "a meltdown" and at least one instance of a lapse of judgment) received "more national praise than outrage".

Moreover, Gorcyca accepted a standing ovation from lawyers in her court after a finding of misconduct was made last July - behavior which clearly does not correspond with remorse.

Discipline of judges in this country, or rather, lack thereof, does not fail to amaze me.

At the worst - and that's what Gorcyca is trying to prevent, arguing about her "right to a meltdown" - she is looking at a 30-day suspension, losing about $11,000 in salary and having to pay $12,000 in fines and court costs.

Yet, for what she did - unlawfully incarcerated children after intimidating and humiliating them in court, without any legal basis for either humiliating or intimidating them, or locking them up - she clearly should have been taken off the bench and disbarred.  That was not a "legal error".  That was not a "lapse in judgment".  That was a clear evidence of a character flaw and unfitness for the bench.

Does a judge have a right to a meltdown on the bench?

Sure.

One time.

After which that judge should be taken off the bench for good, so that those meltdowns would not happen again.

If Gorcyca is left on the bench, that is leaving a time bomb on the bench, which judicial disciplinary authorities know will go off, sooner or later.

If Gorcyca, a longtime attorney, longtime prosecutor and longtime judge, cannot discipline herself not to lash out in "frustration" against the most vulnerable and helpless people in front of her, children, she is hopeless and clearly unfit for the bench.

Take her off, for good, so that her "meltdowns" do not affect other people in such drastic ways.

Criticize judges now. The legal establishment now allows it. Kind of. Because there is the 1st Amendment out there. They know, they know. But they do not care, and lawyers laugh how adorable it is that they do not care.

There is such a thing in the Supreme Law of the Land of the United States of America called the 1st Amendment to the U.S. Constitution.

And it says, supposedly, that

And, since only Congress can make laws in regards to FEDERAL rights, universal for all citizens of the country, no state government can make such laws either.

Heard it?

I did, too.

Having heard that, I also have this:

That means that, since November 13, 2015 I cannot work BECAUSE I exercised by indigent client's due process and 1st Amendment rights, made motions to recuse a biased and corrupt judge, was sanctioned "for frivolous conduct" by that biased and corrupt judge - and was prohibited to work and earn a living, because of it, without a hearing.

And, according to law professor Margaret Tarkington, discipline of attorneys specifically FOR criticizing judges - as professor Tarkington politely put - "enjoys a recent resurgence".

Usually those who criticize judges in this country are immediately dismissed - first, by the courts, then, by the legal establishment whose livelihood depends (literally, through regulation of licenses) on the courts' whims, and then, by the public who blindly follow whatever the legal establishment and courts tells it, "because they know better" - as the so-called "disgruntled litigants".

In the so-called "Rooker-Feldman jurisprudence", a bar unlawfully created by federal courts to block civil rights litigation in federal court because federal issues "could" be raised before biased state courts - courts use an even better, more smacking, more vulgar word than the "legalese-termed" "disgruntled litigants".

"Losers".  That's what the U.S. Supreme Court Justice Ruth Bader Ginsburg, the trailblazer of civil rights, called people who preferred to litigate their federal claims (as the law allows them to do) in federal court:

"The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."

So, if you were prosecuted by a corrupt state court, and another corrupt state court denied appeal, and if you want to sue (as the U.S. Congress allowed you) for civil rights violations under the Civil Rights Act in federal court, the federal court will tell you - "'we have no jurisdiction", because you are a - LOSER!  Not that courts are allowed to change their jurisdiction.  Only the U.S. Congress has such authority, under Article I of the U.S. Constitution.

But courts still do that.

So, "losers" in a biased state court are not entitled to a legal remedy for violation of federal constitutional right provided to them by U.S. Congress. 

Because - they criticize state judges.

And, for that reason alone they are - how do those backyard bullies in middle school called it - LOSERS!


So, now we established that those who criticize judges are simply losers.

Even Ruth Ginsburg says so - if you complain about a "state court judgement", you are a loser.

So, why listen to losers?  To anything they are saying at all?  They are losers, after all, what good can they say?

By the way, when a lawyer surfaced on my blog with criticism of my criticism of judges and refused to reveal his identity and engage in a public online real-time video-debate, he actually claimed that the identity of the individual who makes a statement does not matter, the truth of the statement matters.

While accusing me of "chasing phantoms", "attacking the wrong targets", "getting confused" and "playing fast-and-loose with the law", and claiming, based on those conclusory allegations, without examples, that such alleged behavior on my behalf hurts my credibility, the patronizing male lawyer did not want to reveal who he is.

When I pointed out his patronizing, and conclusory, criticism from the bushes as lacking credibility, he exploded:

So, here a male attorney (or judge) needed the anonymity to be able to say the word "fuck" to a woman he never saw because she - legitimately - accused him of making unsubstantiated conclusory allegations and patronizing her.

The patronizing male lawyer Coyote Waits taught me, the misguided little woman, that his anonymity does not matter, the truth of his statements - whatever they are - is the same:

"Again, however, I will not debate you live and I will not shed my anonymity.  As a lawyer, I would think you would recognize that an argument should stand on its own." 

So, those who criticize judges are:

• "losers" - as Ruth Ginsburg transparently proclaimed in Exxon Mobil in 2005;
• attackers of the U.S. Constitution - as the President of the American Bar Association claimed in response to President Trump criticizing Judge Robart for his illegal decision;
• bigots - like Donald Trump was in criticizing Judge Curiel, even though he had a perfect right to do so, and did not even reach all problems with Judge Curiel presiding over his case; or
• idiots - as many of the news sources, and public in comments in social media, have branded President Donald Trump was in criticizing Judge Robart for making an unlawful decision, and then the 9th Circuit in making an unlawful decision

(in the 9th Circuit decision, quite likely, Ruth Ginsburg, and the Hawaii State University secretly participated - and the State of Hawaii, on behalf of Hawaii State University, is now the 1st state suing Trump for his 2nd Executive order on immigration, apparently after a consultation with Ruth Ginsburg who is not allowed to practice law and participate in consultations on a case, as a judge, and as an appellate judge on whose table this case may and likely will end - but who will stop her?)

I recently confirmed for myself the attitude toward not even criticism of judges by the legal establishment - simply asking a question.

I asked a question, on the Facebook page of the American Bar Association, what right did the family of Antonin Scalia have to own, control and distribute records related to Scalia's work as a judge (case-related notes and journals)?

The reaction was, immediately, the very same as with Coyote Waits:

(1) I was taught that I do not understand the law by a true guru in trial and appellate law

(by a foreclosure attorney who puts his religious faith - and faithfulness - on his professional profile; who, according to his own admission, has dreamed of becoming an attorney since 12 - dreamed, and dreamed

- and, after dreaming for so long, his dream has become true, and - voila! - after working for the U.S. Attorney's office he somehow left, interned in South Africa and then hit the rock bottom of attorney specialties and became the only associate in a 5-lawyer firm (3 partners, 1 "of counsel" and 1 associate - Lindquist), a foreclosure attorney

So, now his dream has come true and he can proudly cast people out of their homes without any litigation (as it happens in most judicial foreclosures, because people do not have money for an attorney and default), and when the majority of his clients, likely, do not have standing to sue - because of how mortgages are obtained and assigned in the U.S. (I often defended people in such cases and know this particular area of the law very well). 

Lindquist very obviously has to feed two young children of his own (as confirmed by his Facebook profile and his profile on his law firm's webpage), who is completely dependent on the judiciary, so he, of course, will not commit any missteps.

Yet, he had the audacity to undertake to teach me what litigation means, what documents are created in litigation and who those documents belong to. 

And, not to overdo it, he claims on his LinkedIn profile that he "enjoy[s] the human element of practicing law and am motivated by helping people resolve complex and stressful situations".  By working first as a prosecutor, and then as a foreclosure attorney.  Oh, well.

(2) I, and even my husband, were "Googled" and our "record" was found "illuminating" - because I asked a question about a judge!

That was the post:

The article, as I already wrote before, discusses that Scalia's family gave Scalia's "papers", including papers related to his work as a judge on the federal appellate court and in the U.S. Supreme Court (case-related notes and journals) to the Harvard Law Library, with the Scalia's family controlling who gets to get access to it, including a restriction until 2020 on access to court-related records, and a restriction until all presently living judges-participants in those cases will die off.

Here is my question:

Here are the comments:

I answered that notes of judges from court cases are not their own "private notes", moreover, that it is a "common practice" says nothing about legitimacy of such a practice.

Then came the backlash.

Note the tone.

I simply asked a question.

But, through that question, I implicitly criticized a judge.

And, attorney, or law student, whoever he is, David Berry, who boasts on Facebook about his legal education and even puts President Lincoln's picture as his Facebook profile picture, simply cannot have it.

Not knowing me, David Berry immediately concluded, from my question and two comments, that a judge does not own notes from a court case, that I "have no first clue of what s/he is talking about", and asks a counter-question, mockingly, whether the public owns the books Scalia has written, or letters to his friends and wife.

I answered that, while the public does not own the books, the judge did not have the right to write them while rejecting 99% of petitions coming his way, because he has no time (but has time for writing books):

And here comes the cherry on the cake: the next commentator Googled me AND my husband (whose name is not Frank, by the way, but, I understand, "Wendi Lynn" was fuming and in a hurry to post this one) - and found our background "illuminating".  Because I asked a question that criticized a judge by implication:

#AttorneyAaronLindquist was tagged on this one, and immediately "liked" it.  That was on March 7, 2017, a Tuesday, at 9:21 am - attorney Lindquist was supposed to be at work, either in his office or in court, enjoying "the human element of practicing law" and "helping people resolve complex and stressful situations" by stripping them of their homes.   

Something that is being offered in New York, for example, for less than flipping burgers

($50 is the current rate for attorneys appearing in foreclosure proceedings per appearance, for review of documents, judging by proposals that still come to my law office e-mail account despite an automatic reply for 2 years that it is closed - $50 for hours of rush review, note that the offer below is dated March 9, and the appearance is the next day, of a thick file of documents, usually with standing problems, legal research, travel to court, appearance in court, wait time, the wait may be several hours on top of that):

Apparently, on a Tuesday morning at 9:21 am attorney Lindquist had nothing to do other than discussing my own and my husband's background on Facebook, because I asked a question about a judge.

Now, let's say that the very same thing - the bullying and checking the background of a person (and husband of the person) who asked a question - would be happening at a press-conference, I would be the journalist (I am a citizen journalist, and I asked the question as such), and President Trump would be the one I am asking that question, and President Trump would say - "I've just Googled this journalist and her husband and my Google search was quite illuminating".

There would have been hell to pay in the media if the President would do something like that.

Yet, it is a routine occurrence in the "honorable" legal profession to bully people who raise concerns about judicial impropriety before the legal establishment - even if that is done implicitly, through a question.

The reaction spells out the attitude of the "honorable" profession loud and clear - DO NOT attempt to bite the hand that feeds us.

So, here goes the idea of "an argument standing on its own" - and there, there was not even an argument, a question needs to be answered on the merits - got lost upon attorneys-commentators on Scalia and his family treating court notes as their own property.

And all of the above, lady and gentlemen, was only a foreword, a preface, a precursor to - TADA! - a big change in the industry.

Today, on March the 13th of 2017, the New York Law Journal, a "scholarly", but rather, a media source of the legal establishment, published an article in which two authors say that Trump's criticism of a judge is actually:

• good;
• refreshing;
• democratic, and that
• judges need to EARN public trust - not demand and presume it, as they do now.

Wow.

Consider the phrase: "Abraham Lincoln, and before him Andrew Jackson, also had harsh words for the courts. Tough-minded presidents usually do" - after a recitation the "harsh words" that Presidents Roosevelt, and Obama had for judges.

Consider the last paragraph:

"Trump has shifted the burden of proof. If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name. Otherwise, jurists can expect even sharper criticism than Trump's."

And illustrated that judicial decisions are "politics by another name" by pointing out at statements of two judges:

Ruth Ginsburg:

 "He is a faker. He has no consistency about him. He says whatever comes into his head at the moment".

The article mentioned that Ginsburg later apologized for that particular blunder, but it did not mention that Ginsburg later practically retracted her apology by adding to her previous statement that

• she will leave to New Zealand if Trump is elected (she is still here, so that was a fake statement, she would never voluntarily shed her money and power and disappear away from the limelight), and, recently, that
• "we are not experiencing the best of times" in the U.S., not to mention
• her recent Hawaiian trip during work time in order, likely, to fix a court case against Donald Trump - a trip to the Hawaii State University School of Law employing as professors law clerks of one of the judges who, as part of the 9th Circuit panel, was deciding the case against Trump, while his chambers were "coincidentally" located within 7 miles from where Ginsburg was hosted - and the Hawaii Law School is currently stalling my Freedom of Information request asking for records as to who paid her bills and how much those bills amounted to, that would be a separate blog).

Yet, consider what the "revolutionary" New York Law Journal article said about another blubbering SCOTUS justice, Sonya Sotomayor (I added a link to the 2005 statement to the source):

"Consider the remarks of now-Justice Sonia Sotomayor in 2005.

'All of the legal defense funds out there, they're looking for people with court of appeals experience. Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.'

Sotomayor drew knowing laughter from the audience because she exposed the hypocrisy woven into our judicial fabric. Judges are supposed to expound law, not make it. Yet, as she revealed, appellate judges make policy all the time. Supreme Court justices even more so.

Sotomayor views judges as having an expertise, a long-range vantage point, and a detachment that qualify them to wield extraordinary powers. By exploiting the law's inevitable uncertainties, judges in the Sotomayor camp have fashioned dubious "constitutional" rights to drive policy in their preferred directions."

The worst of her "offhand remark" in 2005 was that it was made to law students - people who she was teaching by her laughing comments as to what law and justice in the U.S. really is - NOTHING.   What matters is only the law that judges make, illegally, she knows, she knows, but they still do.  And the law students, and their professors, and attorneys who came to listen to her, there is no doubt that they were in that audience, too,  "knowingly laughed" - and that her "offhand remark" in 2005 did not prevent her from becoming a U.S. Supreme Court justice.

The "knowing laugh" part reminds me of what Professor Bogus has said about how brown-nosing the judiciary and endorsing, supporting and approving of judges' most asinine behavior, creates monsters:

In 2009, Sotomayor added to her arrogant "policy" remark in 2005 that decisions are made based on the judge's personal experience and ethnic background - that was here in-famous "Latina woman" remark.  That remark also did not prevent her from being confirmed for the U.S. Supreme Court.

So, given such a seal of approval, no matter what she blubbers, she kept blubbering.

In May of 2016 Sotomayor blubbered some more, now calling for lawyers to be forced into provision of free legal services to close the "justice gap" - created by attorney monopoly and attorney regulation BY courts.

In January of 2017, Sotomayor was part of the panel denying me, without review or explanation of reasoning (of course, I understand that I am not in Finland where people are entitled to reasoned court decisions, at least an explanation why the court considered it unnecessary to enforce their own recent precedents on point and not to enforce the U.S. Constitution) the petition for a writ of certiorari, without recusal of Sotomayor

despite the fact that her own statement (that same "forced labor" statement) was used as evidence in the petition, which required her disqualification, whether I asked for it or not.  I did not ask, but remember why I was suspended in the first place? For motions to recuse a judge. 

Here are excerpts from my certiorari petition that were specifically about the "justice gap", and Justice Sotomayor's comments about it - that would cause ANY honest justice to resign, but, of course, not Sotomayor (remember - " Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know).

She knows, she knows, that what she is doing is wrong - but who will stop her?

"The so-called 'justice gap', the lack of skilled attorneys working for the poor in criminal, family and civil rights proceedings, has become a national crisis, to the point that this Court's Justice Sotomayor has publicly stated this year that she would support a mandatory pro bono work requirement as a condition of attorney licensing for all attorneys throughout this country (FN39 to Tony Maura, Sotomayor Urges Mandatory Pro Bono for All Lawyers. The National Law Journal, May 17, 2016).

New York State recognizes that it has a "justice gap" so bad that it bridges that gap with mandatory services of inexperienced (and unlicensed) law students (FN40 to 22 NYCRR 520.16(a):

If the justice gap in New York is so bad that New York mandates or encourages practice of law by unlicensed, inexperienced and unskilled service providers in order to bridge the justice gap for poor litigants, surely, New York must treasure those skilled attorneys who are already providing services to the poor, helping to bridge that justice gap.

Yet, instead, New York removes skilled attorneys who honestly do their jobs for their clients, just because they made motions to recuse a biased judge and were sanctioned by that judge (FN to Matter of Aretakis and Matter of Tatiana Neroni), and does it through disciplinary proceedings where New York courts apply collateral estoppel to a standard of proof artificially lowered to an unconstitutional level in order to allow disciplinary prosecutors to skip evidentiary hearings, without regard whether criticism of the judge was truthful".

*  *  *

I further said in the petition that Sotomayor participated in denying without an explanation or reasoning:

"On the one hand, New York recognizes that the justice gap in the state is so bad that New York mandates or encourages unlicensed, uneducated, inexperienced and unskilled service providers to provide legal services to the poor, in contravention to its own criminal laws and attorney licensing laws.  New York thus exposes indigent litigants to the danger of unskilled and dishonest providers who were never subjected to evaluation by character and fitness committees, which is exactly contrary to the declared reason of why attorney licensing was introduced in the first place - to protect consumers of legal services from unskilled and dishonest providers.

On the other hand, New York removes services of skilled attorneys who are already providing their services to the poor from the reach of those indigent litigants for unconstitutional reasons, disciplining attorneys not for doing a bad job for their clients, but for doing a good job.

Moreover, attorneys so targeted for unconstitutional discipline are, invariably, small-firm and solo criminal defense, family court and civil rights legal practitioners who work for the poor and who raise 'sensitive issues' of judicial misconduct in court, such as in attorney Aretakis' cases and in Petitioner's case.

Under these circumstances, removal of skilled attorneys from the reach of indigent consumers of legal services, specifically because they are skilled, and specifically because they skillfully and courageously argue 'sensitive' issues of governmental misconduct on their clients' behalf, while replacing them with unskilled, inexperienced and unlicensed providers, amounts to an unconstitutional unspoken policy that has the effect of blocking the poor from access to skilled legal services, thus widening the justice gap for the poor while New York pays lip service about its effort to bridge that same gap.

This year, this Court has struck in Whole Woman's Health v  Hellerstedt, 579 U.S. __ (2016) a government regulation of the medical profession which was beneficial as declared, but harmful in effect.  Harmful effect is exactly what occurs when attorney discipline is used in a way harmful to consumers.

Preventing the widening of the "justice gap" is at least as much, if not more, important as preventing the widening of "access to abortion gap".  Access to abortions only affect less than half of this country's population - women of reproductive age - while the justice gap affects the entire population."

So, I spoke about the justice gap, Justice Sotomayor's personally expressed concern about it, and the use of attorney discipline in the State of New York to widen it and to block poor litigants from skilled civil rights attorneys as a matter of policy.

And Sotomayor who made a personal pledge to fight to bridge that justice gap, participated in a decision denying, without an explanation, a petition for a writ of certiorari that could help fight that same justice gap, by preventing removal of skilled civil rights, criminal defense and family court attorneys from the reach of the poor.

Because she knows, she knows, who is going to do anything about it?  And who has the power to do anything about it?

The article in New York Law Journal now says that criticizing judges is actually a good thing.

And that judges, based on Sotomayor's and Ginsburg's statements, are politicians in black robes.

And that they should be subject to criticism, worse than President Trump's, if they fail to show through their decisions that their decisions are not just "politics by another name".

And that, if judges fail to show that, they are not entitled to either respect of deference from the public.

As revolutionary as it may sound, from such an edition as New York Law Journal, the article still fails on one important issue.

It is not President Trump, or presidents of the United States criticizing judges before him, who "allowed" or "open the gates" of criticism against judges.

What allows such criticism and make it healthy and proper is the U.S. Constitution and its 1st Amendment - that same U.S. Constitution that every judge in this country, including Ginsburg and Sotomayor, is sworn to protect.

And not "I know, I know" protect, but really protect.

And people, instead of "knowingly laughing" at the adorable ways judges violate the U.S. Constitution, their own oaths of office and people's rights, should demand action from their representatives in legislatures to introduce strict statutes giving people real remedies in dealing with judicial misconduct.

Without such remedies, they will continue to break the law while arrogantly laughing at us.

We the People, not the judges, are the popular sovereign in this country.

The U.S. Supreme Court has confirmed that in the infamous Dred Scott case (I wrote about it in my blog before).

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives."

We dictate what laws exist in this country, not judges.

And we know, we know, that what judges do in refusing to enforce the U.S. Constitution and refusing to give victims of constitutional violations real remedies at law is unlawful, unlawful.

And unconstitutional, unconstitutional.

And they should be held accountable for that.  Really. 

We the People are not laughing.