"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.

Monday, March 14, 2016

Will intimidation of the U.S. Supreme Court nominees by attorney-Senators Mitch McConnell and John Cornyn be pursued as attorney disciplinary violations?

Oh, the politics of the legal profession.

Oh, the politics of the "honorable" members of the Legislature.

Just after #AntoninScalia dropped dead under unclear circumstances at unclear time and unclear location, the very first thing that the mourning Republican Majority Leader Senator Mitch McConnell said after learning about the death was that Republicans will block President Obama's nomination of a U.S. Supreme Court justice, because they are waiting for a nomination from the new president.

Which was not very smart, because Senator McConnel, sworn to protect and uphold the U.S. Constitution, must know that the duly elected President serves and has a right to nominate candidates to the U.S. Supreme Court vacancies until the very last day of his presidency.

It was also not very smart because of potential dynamics in the U.S. Senate itself in the coming elections.

Then, as an added tactic, John Cornyn, reportedly the second highest-ranking Republican U.S. Senator claimed that "high-stakes slugfest could damage their reputations in a fruitless pursuit of the top court".  

In other words, Republican Senators practically openly threatened judicial nominees with damaging their careers if they are to be nominated.


On the one hand, there is freedom of speech, and candidates for appointment to a governmental office are fair game for criticism.

On the other hand, many of Republican Senators practicing the "slugfest" are licensed attorneys, and there is a disciplinary "gag" rule prohibiting them from making false statements and statements in reckless disregard about truth or falsity about judges and nominees/candidates for election to judicial office.

And, blocking judicial candidates not because they are bad, but because of who nominated them, is a form of interference with administration of justice, don't you think?

And interference with administration of justice is yet another attorney disciplinary violation.

Senator McConnell is an attorney.

Senator Cornyn is also an attorney.

Will these senators be disciplined for their activities that constitute grave disciplinary violations for attorneys?  

Where those same activities in criticizing judges and judicial nominees are pursued by attorney disciplinary authorities relentlessly and result in suspensions and disbarments of solo and small-firm attorneys who lack political connections?

By the way, the same Senator McConnell accused Democrats in 2013 of exactly what he and his supporters are practicing now - intimidation tactics.

And, in answer to those accusations of Senator McConnell, Senator Reid provided the following rebuttal pointing out to stalling tactics of Republicans as to President Obama's nominees long before President Obama's last year of service:

"Executive and judicial nominees ready for Senate confirmation have been pending an average of 200 days, first-term judicial nominees unanimously reported out of committee have waited nine times longer to be confirmed than those under President George W. Bush, first-term district court nominees have waited five times longer than those previously, and first-term circuit court nominees have waited more than seven times longer."

As a voter, I am disgusted.

We do not elect people to the U.S. Senate to be clowns and bullies.

We elect them, as our public servants, to do their jobs for us, to legislate.

If their job is to approve or disapprove of a judicial candidate for the U.S. Supreme Court, and for the President of the United States to nominate such a candidate, the job of the U.S. Senators is at least to discharge their duties in good faith, without "slugfest" or "pinata" threats.

The threat was announced on March 7, 2016.

Early after the announcement of Scalia's death, the Republican Nevada Governor Brian Sandoval refused to be considered as a nominee to the U.S. Supreme Court, three days after announcement of Scalia's death - obviously following its party's directive.

One day after the "slugfest/pinata threats surfaced", on March 8, 2016, the International Women's Day, the U.S. Attorney General Loretta Lynch recently declined a consideration for the U.S. Supreme Court ahead of time.

Playing the coward to the threats of some Republican bullies (I am sure, not all of the Republican party and Republican Senators support these middle-school bullying tactics) was not exactly a good example of empowering women in the government that Loretta Lynch has sent by her refusal to serve as a U.S. Supreme Court Justice.

Two days after the "slugfest/pinata" threats surfaced Judge Adalberto Jordan, of the U.S. Court of Appeals for the 11th Circuit, also declined to be considered for the highest position in a judicial career, the position of a U.S. Supreme Court justice.

So the threats of "slugfest" by Senator Cornyn worked.

But, if those threats worked - that means that there might likely be some "skeletons in the closets" of two attorneys who both are in charge of upholding the law, one at the top of the federal Executive branch, and the other close to the top of the federal judicial branch of the government?

Our "honorable" U.S. Attorney General and no less "honorable" federal appellate judge are afraid that some of their dirty little secrets may be dragged out to light and ruin their "unblemished" career?

So much for the "unblemished" career then.

And, two notes at the end.

A note to voters as to upcoming elections - no, not of the President, but of the U.S. Senators.  Both Senator McConnell and Senator Conryn are supposed to adhere to the rule of law, and discharge their duties in good faith, not engage in middle-class-level bullying that makes the Republican party look beyond stupid.

And a note about attorney discipline for criticizing judges and judicial nominees - if you are a Senator, a "slugfest" against a judicial nominee is all right.

If you are a Jane Doe, a solo attorney without connections, true criticism of a judge may result in losing your law license.

So, if you want to criticize a judge or judicial candidate, even if you plan to do it falsely, even if you plan to do openly harass and intimidate a good candidate with a "slugfest" - run for U.S. Senate.

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