"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).

“This 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, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Wednesday, May 27, 2015

One more argument in favor of introduction of peremptory challenges to judges in New York

How much is too much for the judge to HAVE to recuse?

The U.S. Supreme Court has ruled in 2009 that accepting $3 mln in an election campaign and then casting a decisive vote to overturn a $50 mln dollar judgment on appeal for the parties who made the $3 mln contribution is a violation of opponent's due process of law.

So, refusal to recuse is not always only up to a judge.

Yet, New York court continued to believe it is.

I repeatedly catch judges in ex parte communications.

Some recuse, some adamantly continue - and retaliate.

It is nearly impossible to get through to the U.S. Supreme Court.

The U.S. Supreme Court does not consider cases interesting or important, oftentimes unless the issue has hit the press big times - or, as in Judge Benjamin's case, the issue is buying a judge through a campaign contribution for $3 mln.

So, if somebody bought YOUR judge for less - that somehow becomes less of a due process problem?

Or, if somebody engaged in an ex parte communication with the judge for a period of time suggesting discussion of the merits and not simply "scheduling" - it is still in judge's hands and "discretion" to decide whether he must or must not recuse, even though the court rules and the U.S. Supreme Court cases mandate recusal where there is an appearance of impropriety.

Yet, judges have a very permissive view of what does or does not appear improper to a reasonable and objective member of the public.  In fact, judges believe that THEY are that reasonable and objective member of the public, and that they are objective enough to analyze their own conscience (where existence of such conscience is unprovable and unverifiable).

And the stubborn refusal of clearly conflicted judges to recuse from cases where ex parte communications occurred, whether with judges directly, or with their "chambers", is one more argument in favor of introduction of:

1) peremptory challenges of judges;
2) voir dire of judges who are making any factfinding decisions.

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