No discipline for SCOTUS Justice Kavanaugh: good or bad? The Trump litmus test continues

I have written on this blog many times that the election of Donald Trump has so far worked, and continues to work, as a litmus test for many ways of how the American government works, on federal and state levels.

Certain things which the law permitted the previous administrations to do, somehow becomes not permissible under this administration.

Certain things that were wrong - but not noticed - under the previous administrations, became more visible just because Trump is doing it.

I am planning a detailed overview of this phenomenon, but in this particular article I wanted to point out one extraordinary feature of the "Trump litmus test":  it has shed a light on the U.S. Supreme Court and what is very wrong about its operation over the last 100 years.

First of all, with the death of Justice Scalia (and unlawful filibustering by the Republican Senate of a nomination to SCOTUS by President Obama) and retirement of Justice Kennedy, Trump has got to fill two seats so far on the U.S. Supreme Court.

Same as President Obama, same as all presidents before him, President Trump has avoided as a plague in fitting the vacancy on the U.S. Supreme Court, the last resort in death penalty cases - candidates with criminal defense background.

The only people who have criminal law experience on that court are former prosecutors.  

Of the 9 current justices of the U.S. Supreme Court, 

1. Stephen Breyer;
2. Clarence Thomas;
3. John Roberts (The Chief Justice):
4. Ruth Ginsburg;
5. Samuel Alito;
6. Neil Gorsuch;
7. Sonia Sotomayor;
8. Elena Kagan;
9. Brett Kavanaugh,

the only U.S. Supreme Court justice who does not have prior experience as a prosecutor is Ruth Ginsburg, and yet, Ruth Ginsburg's experience as a law professor and general counsel for ACLU between 1973 and her nomination to the bench in 1980 is not the equivalent of a background in criminal defense, since the ACLU has never undertaken criminal defense, and Ruth Ginsburg in particular did not work as a criminal defense attorney.

I thoroughly dislike Hillary Clinton and did not vote in the previous presidential elections because I did not see good presidential candidates in either of the candidates running in 2016.

Having said that, I did defend Hillary Clinton, during her election campaign, in August of 2016, in my blog article when she was bashed for her actions as a criminal defense attorney and a public defender.

And, I have stated on this blog that President Obama did a disservice to this country when he nominated Merrick Garland, having bypassed a courageous female judge Jane Kelly with a public defender background, who continued to work as a public defender even after she was attacked and left for dead, because of her public defense work.

President Trump, so far, also disappointed, having nominated to the court 2 white males, both former prosecutors, having so far confirmed the trend portraying background in criminal defense or civil rights litigation as a disqualification for public office (only one justice on the U.S. Supreme Court has a qualification in civil rights litigation, and NONE - in criminal defense).  Once again, this court handles criminal cases, and, especially, death penalty cases.

With NO justices having prior experience in criminal defense, while 8 justices having experience (and indoctrination) in prosecution, and the mentality of people having "enjoyed" prosecutorial immunity - which corrupts prosecutors' minds and drives them to score convictions, without regard whether the law is followed, with an eyes on the prize, career advancement.

For 8 out of 9 U.S. Supreme Court justices, prosecutorial positions did bring a career advancement, to the top of the American government, a lifetime appointment to a position where there are no job requirements, no accountability and an unlimited power over life and death (literally), people's fates, property, and over setting the law in the entire country - without authority for doing that in the U.S. Constitution, but by "well-settled" custom.

Since 1925, SCOTUS has asked - and received - from the U.S. Congress the gift of not having to review all petitions filed with the court, on the merits.

A SCOTUS judge is the only position where the judge does not have to preside over court cases other than impeachment of the President (applicable only to the Chief Judge of SCOTUS) and does not have to discharge functions other than administrative (swearing in highest officers of the U.S. Government).

Otherwise, there is no minimum of cases to review per year for SCOTUS.

If SCOTUS chooses no cases for review in a given year, they have a right to do that, too.  Nobody can make them accountable for refusing to review the absolute majority of cases (7920 out of 8000 filed, and then, we do not have official statistics of how many cases are REALLY filed published by the U.S. Supreme Court, only approximate numbers).

Cases that SCOTUS does take for review "coincidentally" are filed predominantly by 70 attorneys, the so-called "Echo Chamber", most of them having some kind of connection to the court (former clerks etc.).

Nothing too crooked.

Judges accept gift from parties and attorneys - for themselves and for their law clerks.

Periodically scandals flare about particularly corrupt gift-taking, but no impeachment of a U.S. Supreme Court Justice occurred on that ground so far, and the U.S. Supreme Court does not have a code of judicial conduct, but does have a code of silence for its clerks and a code of PERSONAL loyalty of clerks to justices, which has nothing to do with the U.S. Constitution that gives to justices their power, within its strict boundaries.

Justice Scalia was "found dead" at a remote Texas ranch with personnel speaking only Spanish, the ranch belonging to an individual who has had prior litigation with the U.S. Supreme Court that ended up in his favor.

The duck-hunting trip of the same Scalia with a party in litigation also did not result in discipline for Scalia.

Scalia's friend on the court Justice Ginsburg, while spewing open hatred to the current President, and having done so since before his elections, continues to preside over cases where he is a party, without recusal.

As reported by an extraordinary lawsuit of an attorney out of California, Linda Shao, SCOTUS Justices not only refuse to recuse from a case involving an organization that judges ask to "sponsor" their law clerk for annual free month-long trips to London with VIP treatment by the British judiciary, but hide certain materials from Linda Shao's docket on the court, and do that systematically.

While President Trump is being investigated for "Russian collusion" by a special counsel, nobody investigates SCOTUS justices when they travel or lecture while paid by foreign governments.

In 2015, foreign sponsors paid (bought) U.S. Supreme Court justices for the following:

Roberts - lectures in Japan;

Ginsburg - lectures in South Korea; Switzerland

Kennedy with spouse - Austria;

Kagan - Israel;

Breyer - Great Britain

Ginsburg and Alito were paid by lawyers' organizations to travel abroad in 2015,

Ginsburg - to the Great Britain (paid for by the American College of Trial Lawyers), 

Alito - to the Dominican Republic, paid for by the Federal Bar Council - 

by organizations of attorneys APPEARING in front of these judges.

SCOTUS judges who reject the majority of incoming petitions, have time for side jobs.

For example, in 2015, the following side jobs were reported by SCOTUS judges (I summarized this information from justices' releases obtained by a watch-group on a Freedom of Information Request),  I have printouts of  copies of justices' actual financial disclosures for 2015 are on file.

Anthony M. Kennedy	McGeorge School of Law, University of the Pacific	$                   12,500.00
Anthony M. Kennedy	Colonial Williamsburg Foundation
Clarence Thomas	Horatio Alger Association
Clarence Thomas	Creighton University School of Law	$                   15,000.00
Clarence Thomas	George Washington University School of Law	$                   10,000.00
Clarence Thomas	J. Reuben Clark Law School - Brigham Unviersity	$                      2,225.00
Clarence Thomas	The Daily Caller	Salary
Clarence Thomas	Liberty Consulting, Inc.	Salary and benefits
Ruth Ginsburg	Trust Article Fourth U/W Martin D. Ginsburg, Trustee
Ruth Ginsburg	University of Michingan - Tanner Lecturer	$                   10,000.00
Samuel Alito	ABA Advisory Committee on the Law Library of Congress
Samuel Alito	Member Honorary Board of the Franciscan Monastery of the Holy Land in the United States
Samuel Alito	University of Kentucky	$                      6,000.00
Samuel Alito	Duke University Law School	$                   15,000.00
Elena Kagan	Harvard Law School
Elena Kagan	President and Fellows of Harvard College	$                   15,000.00
Stephen Breyer	Dana-Farber Cancer Institute
Stephen Breyer	The Pritzker Architecture Prize
Stephen Breyer	Penguin Random House LLC, Royalty Income	$                 116,774.61
Stephen Breyer	The authors Registry, Inc; Royalty Income	$                         384.93
Stephen Breyer	Penguin Random House LLC, Nonemployee compensation	$5,000

Note that, when SCOTUS Justices are paid lecturers in colleges and universities, they were disqualified from hearing immigration cases where colleges and universities were claiming standing and injury from Trump administration's "travel ban".

None of them recused.

And none of that became a burning issue in the American media or for the American public.

No "emolument clause" was invoked, no demonstrations held in the streets, no lawsuits filed and no criminal or impeachment investigations commenced.

In fact, complaints against U.S. Supreme Court justices die on filing - because NOBODY "under the law" in the United States may discipline a SCOTUS justice.

As was shown in the case of Justice Kavanaugh.

One might say that complaints against Justice Kavanaugh were politically motivated - since he was on the federal bench for 12 years, from 2006 to 2018, with no complaints filed against him.

The trigger for the complaints was not the judge's behavior, but him having been nominated by President Trump who certain people want to filibuster no matter what he does.

From that point of view, complaints against Kavanaugh, likely, did not have merit and were unfair.

But, that is not the point I am making here.

The point I am making is that the complaints, fair or unfair, meritorious or not, were not even REVIEWED by federal judges - BECAUSE Judge Kavanaugh has become a U.S. Supreme Court Justice Kavanaugh, and as such, unreachable by judicial discipline.

He (and his 8 associates) have a job that has

1. no requirements of a minimum caseload;
2. a marble palace and a practically unlimited budget - for 9 people to review court cases, for which the same court had, initially, a single room in the Capitol building;
3. plenty of time to go, during business hours, to 
1. talk to law students;
2. talk to bar associations (all expenses paid for travel and accommodations);
3. write books, sell them and advertise them;
4. lecture for money;
4. an ability to allow themselves to accept gifts in money and in kind for themselves and for their personnel from parties and counsel in litigation, and from foreign governments and entities - 

with NO ACCOUNTABILITY whatsoever.

The "phenomenon" of no discipline for a U.S. Supreme Court Justice BECAUSE he is a U.S. Supreme Court Justice was caught by the media because the complaints were against a Trump-nominated Justice.

But, the same applies to all other judges of this court.

Isn't it time to demand from the newly-elected democratic House in the U.S. Congress to stir up this sinecure that has nothing to do with the authority given to this court (a limited authority, mind) by the U.S. Constituion, and to re-establish this court the way it was planned by the "Founding Fathers" in the first place - 

not as a lifetime graft-making sinecure without any accountability and unlimited power, 

but a court of law that must resolve ALL incoming petitions on the merits.

If they do not have enough justices to review all incoming cases - expand the court.

If we have 150 justices of the U.S. Supreme Court, and if they have a strictly enforceable code of conduct, limited terms and a prohibition on making laws, and on accepting gifts of ANY KIND from the public and especially from foreign governments, entities and individuals - maybe, then, we will look the way we declare ourselves to be, a democracy?

Because the way SCOTUS is set up now smacks of a monarchy.

The sham of Prosecutoricla Conduct Commission in New York, Part 8, one more "good violation" of the "bedrock principle" of separation of powers

Here is the 8th article of my article series about the sham of Prosecutorial Conduct Commission in New York that was - according to an insider - prearranged to be signed into law before the elections and then stalled "because of a lawsuit" after the elections and before coming into being.

Here is the text of the prosecutors' lawsuit.

As to other articles in the series, 

Part I can be read here.

Part II - here.

Part III - here.

Part IV - here.

Part V - here.

Part VI - here.

Part VII - here.

In the last article, Part 7, I have covered the argument of the District Attorneys Association in their lawsuit that the law creating the Commission violates the "bedrock principle of democracy", the separation of powers.

While separation of powers - if it works - is, truly, the bedrock principle of democracy, I have pointed out that prosecutors are quite selective about New York government's violation of this "bedrock principle", picking and choosing which of such violations to condemn and which to support - because it aids those same prosecutors.

I have pointed out that the prosecutors gladly accepted a violation of separation of powers when:

• The Governor de facto rescinded the law about creation of the Commission for Prosecutorial Conduct (while the law remained on the books and was not - until this day - rescinded or abolished by the Legislature, the only government body that has authority to do that); and
• that Appellate Divisions (intermediate appellate courts) discharge what prosecutors pointed out as being an executive function of disciplining elected executive officer (prosecutors), including the power of removal - which prosecutors claim belongs only and exclusively to the executive branch of the government, the Governor (and on this, prosecutors are right, since ALL of over 180 licensed professions in New York are regulated by the executive branch, while removal of prosecutors may be, truly, done only by the chief if that branch, the Governor - in accordance with the State Constitution).  Why such a preference?  Because Appellate Divisions have an unwritten policy never to remove a prosecutor still an office - and never did, in all the history of attorney regulation.

There is yet another violation of the "bedrock principle" of separation of powers in favor of prosecutors that prosecutors thoroughly enjoy and never try to complain about or refuse to accept:  the so-called absolute prosecutorial immunity.

Let's look at who's who in how that prosecutorial immunity was given to prosecutors (who hold onto it with a death grip and invoke it whenever they are sued - for causing a wrongful conviction, for example, that has put an innocent person into prison for several decade, or on a death row).

1.  There is a U.S. Constitution, with its Article 6 Section 2 - the Supremacy Clause, making itself the Supreme Law of the Land.

2.  There is Article I of that same U.S. Constitution giving exclusive power to create, change and call back (enact, amend and rescind/abolish) laws exclusively to the U.S. Congress;

3.  There is Article III of that same U.S. Constitution giving to federal courts only the power to do what courts usually do - decide disputes between parties (by the way, prosecutors know limitations of judicial power very well, they pointed out the limitations of judicial power in their lawsuit).

This is from page 12 of prosecutors' lawsuit:

Consider:  "the separation of powers prohibits legislative or JUDICIAL "encroachment on the power of the executive branch", yada-yada-yada...  

The separation of powers, actually, prohibits ANY branch of the government to encroach upon the authority of the other branch - but yet, allows them to "check and balance" the other branches, remember?

Neither the principle of separation of powers, nor the "checks and balances" principle can be found in the text of the U.S. Constitution, it is just what the government "finds" in it - and "interpret" those found principles only and exclusively in its favor.

Collusion of the branches - instead of "checks and balances".

Recognition of the principle of "separation of powers" - only when it favors them.

Ignoring violations of the principle of "separation of powers" - also when such a violation favors them.

Now, see this:

"The function of judges is to determine controversies between litigants".

Oh, really?

So - when judges CREATE LAWS, and POLICIES favoring the government, the various changes to the Civil Rights Act that, taken together has made receiving a legal remedy for violation of a person's constitutional right (which is also a federal crime) practically impossible in the United States - that would be a separation of the "bedrock principle" of separation of powers?

Because judges went outside of their NARROW authority "to determine controversies between litigants" and very well encroach into the area of the Legislature, making law and creating policy for the entire country - like the U.S. Supreme Court does, 

hence the circuses over appointments of judges to that court and the lamentations that the court can "change the law" of the country and "undermine democracy" for decades because of appointment of ONE person to that court?

Do prosecutors come together and file any lawsuits challenging usurpation of power by the U.S. Supreme Court?

I know, I know.

But, let's look at point 4 of our little "who's who" in how prosecutorial immunity came into its illegal being.

4.  The U.S. Congress, basing its actions on Article 1 and the 14th Amendment of the U.S. Constitution, created a statute, the Civil Rights Act, 42 U.S.C. 1983, by which ANY person whose rights under federal law or the U.S. Constitution may sue ANY member of the government (including a judge and a prosecutor), seeking a legal remedy for violation of his rights.

And that is a very commendable law, a bedrock of democracy, because it implements several principles of democracy and fundamental fairness:

• no-one is above the law, including government officials;
• there should be a legal remedy for any legal injury, including and especially constitutional violations, violations of civil/human rights - because otherwise the country will inevitably, sooner or later, slide into chaos.

Now, what did our glorious U.S. Supreme Court do with the Civil Rights Act?

Well, of course, it CHANGED it - for which the exclusive right was only in the Legislature, the Congress.

What did the U.S. Supreme Court specifically do with the Civil Rights Act?

It has created exceptions for liability of nearly all members of the government for constitutional violations - violations of that same U.S. Constitution that they are sworn to uphold and defend, as a CONDITION of holding their positions in the first place.

And who was the first class of government officials to receive - unlawfully - this exception from the reach of the Civil Rights Act?

But, of course, the prosecutors - they only people in the United States who have the "discretion" (absolute power) to "choose" whether to bring or not to bring criminal charges for any crimes, including constitutional violations and corruption - against judges.

Absolute prosecutorial immunity was given - to the prosecutors by the court, in total violation of the "bedrock principle" of separation of powers, because, in order to that, the court amended the Civil Rights Act through interpretation, carving an exception into it - in 1976, 

even earlier than judges shamelessly gave the same gift of absolute immunity to themselves - while continuing to call themselves "honorable" as a job title, and while continuing to presume their own honor "as a matter of law", and requiring lawyers to presume their honor and embed trust in their honor into the public.  That self-gift judges gave themselves 2 years later, in 1978.

Think about it.

You are elected or appointed to a public office.

You take an oath to discharge your duties faithfully, as a condition that the office is given to you.

The moment the office is given to you, you use your power to give yourself a "right" to be free of liability for violation of that same oath that put you in office in the first place, and

You continue to claim that you are presumed to be honorable, and

Require, under the threat of punishment, that people depending upon you for their livelihood (lawyers who you give or from whom you take away permission to work in their profession, law licenses) - that lawyers dupe the public, the voters, and claim that you, despite the illegal gift to yourself allowing yourself to engage in misconduct or corruption without legal liability, are presumed-honorable.

Now, for a court to change a statute through interpretation - and especially to do that in order to give favors to powerful government officials as a bribe for those officials not to prosecute judges themselves - is as gross a violation of the "bedrock principle" of separation of powers as they come.

Do you see prosecutors filing lawsuits saying - your honors, what the hell did you do?

Why did you dishonor us so much with your bribe?

Why did you present us to the public as incompetent, corrupt and bought crooks who have to rely upon immunity given to us by one of our potential subjects of investigation in order to sleep peacefully at night and be able to work at all - because that was the explanation in how the immunity was given, that HONEST prosecutors would not be able to work properly, because they will be afraid (consider the mental frailty of the poor dears) of being sued for DISHONEST acts.

For that reason, the gift was given to them that they cannot be sued for DISHONEST acts, to allow them to work further - supposedly, HONESTLY.

So, did prosecutors - EVER - complained to courts about this crazy gift to them, 

• violating the "bedrock principle" of separation of powers,
• gutting the Civil Rights Act;
• destroying the legal remedy GIVEN to people by the U.S. Constitution and by the U.S. Congress; and
• giving prosecutors a carte-blanche to create as many wrongful convictions as they want?

Because the "condition" of immunity given to prosecutors by courts - attorney discipline - was given with the same "wink and nod" as when the law for New York Commission for Prosecutorial Conduct was enacted - just for the time necessary to dupe voters before elections and to put certain government officials back in office, and then stalled by unlawful agreement between "parties" (an agreement that was never announced to voters when the Commission was announced, with much trumpeting about New York's goodness and being the "first in the nation").

Prosecutors are NEVER removed from office in New York - out of office by Appellate Divisions.

In Pennsylvania, an elected-in-a-landslide State Attorney General Kathleen Kane WAS removed from office - first suspended, then tried, convicted, put in prison, disbarred - 

BECAUSE she dared to investigate and prosecute prosecutors and judges - one judge who she investigated had the audacity to actually preside over her disciplinary case and suspend her, and the court refused to vacate that suspension, deeming such behavior by their colleague proper.

So, I return to the question - do New York prosecutors want to waive the gift of absolute prosecutorial immunity that was given to them illegally and as a bribe by a potential class of subjects in their investigations and prosecutions (judges), in violation of that same bedrock principle of separation of powers that they so ardently (if partially) defend in their lawsuit?

Didn't think so.