"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.

Sunday, July 19, 2015

Check your balances - the price the American society is paying for the life tenure of federal judges as a claim of judicial independence

The much claimed judicial independence is hailed as a reason for lifetime tenure of federal judges.

Judges are claimed to be independent of politics.

Yet, judges nominated by Democratic presidents, as well as judges nominated by Republican presidents, linger in office without desired retirement to ensure that their successor will be nominated by a president of the same party that nominated them.  That does not seem as being far away from politics to me.

Having as long-time friends high-ranking government officials, as Judge Antonin Scalia claimed the U.S. Supreme Court justices have a history of having, also does not put judges away from politics.

Being "free from political pressure" translates in everyday English as not having to re-run for judicial office.

Yet, judges come to that judicial office well advanced in age, at or long after 50 years of age.  At this age, lawyers are usually very well set in their careers and already generated enough income and have enough savings to retire comfortably, judicial election or appointment or not.

So, talking about judicial independence in terms of being free from judicial elections, in application to representatives of the very-well paid legal profession (and majority of judges are not paupers when coming to the bench, they are usually either successful governmental officials or successful law professors) is not really forthcoming.

What is also taken out of the consideration of the so-called judicial independence is that at the time judges usually come to the U.S. Supreme Court bench (and federal bench), they usually have kids of college age at the least.

Those kids most often follow in the path of the judge-parent.

They need to make their own career in law, and these children may and do become a real danger to judicial independence of their parents who are life-tenured judges.

Exercise your "judicial discretion" my way - and I will appoint your child to a prestigious and well-paying position, a stepping stone for the child's further legal and political career.

And judge Antonin Scalia veered that way.

He decided Bush v Gore for Bush, where Bush's running mate Dick Cheney was Scalia's longtime friend.

And Scalia's son was nearly immediately appointed into the Department of Labor.

Judges have children.

They have friends, siblings, in-laws and friends.

All of them want their careers to be furthered.

Judges, such as Antonin Scalia, believe that recusing from cases of friends is impracticable, as it will stall the work of the U.S. Supreme Court.

So, they sit on cases of their friends.

And rule for their friends.

And, since their friends may be in the U.S. legislature, the U.S. legislature does not impeach, and does not enact rules that would stop this corruption.

And judges write their own rules of judicial conduct - and enforce them in their own closed circles, or rather, magnanimously decide that there is no misconduct because "all U.S. Supreme Court judges had as friends high-ranking government officials", as Scalia said.

Judges attend duck-hunting trips with friends who are parties in front of them.

Judges attend Christmas parties, in other words, are wined and dined, by parties in front of them.

And they can be doing it for a lifetime - because there is life tenure.

For that reason, I believe, life tenure should be replaced, by constitutional amendment, to 2-year terms maximum.

And the U.S. Supreme Court should be expanded to 200 to 250 judges - enough to serve the growing population and caseload in this country's courts.  9 judges, most of them past the usual retirement age, many of them well past that age, to serve 13 circuits and 50 states as the court of original jurisdiction and the ultimate appellate court from state and federal courts is simply grossly inadequate.

This country has a large supply of brilliant men and women who can serve as Supreme Court justices.  Let them serve.  Let them not have the time get entrenched with their "good friends" in the government, undermining the "checks and balances" principles upon which this country is founded.

Let them not have the time to build their children's careers upon favors given to their "longtime friends".

And let's address our respective U.S. Senators to introduce laws to make judges really accountable for corruption and impropriety in office - because the "self-regulating" judiciary, as it exists now is - no, not a joke, it is a tyranny that can cost this country a lot of turmoil and blood to change, if it is not changed radically, peacefully, through lawful process - and soon.

Shorter terms in office and larger number of justices will prevent the most severe cases of corruption, nepotism and cronyism.

Voters should also push their U.S. Senators and representatives in Congress to introduce and enact legislation preventing employment of family members of federal judges in other branches of federal government, vaster disclosures of income by federal judges, including non-monetary gifts like free trips and dinner invitations, and significant and well-defined punishments for judges for failure to disclose conflicts of interest, such as presiding over cases where a party or attorney for a party is a family member or friend of a judge.

Without such drastic changes we will be where we are - in a mess where ex parte communications of Antonin Scalia during hunting trips with a friend who is a party in litigation, or promotion of Judge Scalia's son's career at the expense of the American public after the father put a particular president on the throne.

Quid pro quo in the judiciary should end, soon.

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