THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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, January 6, 2016
Why wasn't SDNY Judge Shira Scheindlin criminally prosecuted under 28 U.S.C. 454 or impeached?
"Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor."
It is a criminal statute.
In provides for (1) criminal prosecution of a federal judge who practices law; and, since engagement in "high crimes and misdemeanors" is grounds for impeachment, it provides for (2) impeachment of a federal judge who practices law.
In October 2013, and then in November 2013, by sua sponte order of the 2nd Circuit, it was established that Judge Shira Scheindlin did engage in the practice of law by giving legal advice to certain individual as to how to sue New York City, see my blog about that decision, with scans as to how exactly Judge Scheindlin advocated for the potential civil rights plaintiffs, here.
Yet, over two years down the road, Judge Scheindlin is still neither impeached nor criminally prosecuted and remains on the bench.
This is not "just" an ethical violation.
This is a judge who very obviously committed a crime - and still remains on the bench.
Why isn't Preet Bharara taking on investigating and prosecuting Judge Scheindlin? Too scary for his law license?
And, by the way - some legal blogs commenting on Judge Scheindlin's removal from the case Floyd v New York City, incredibly, commented that the 2nd Circuit did not find any misconduct in what Judge Scheindlin did.
Even if the 2nd Circuit did not in so many words mention 28 U.S.C. 454, the order of removal from a case reciting Judge Scheindlin's legal advice to one party how to file an additional lawsuit against the other party, is undoubtedly the practice of law, forbidden to federal judges by statute.
So, committing a crime of practicing law by a federal judge is not misconduct in the eyes of legal commentator.