"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.

Friday, June 24, 2016

Sonya Sotomayor makes a yoyo of the U.S. Constitution

In 2001, the now-U.S. Supreme Court Justice Sonya Sotomayor claimed that race and experience of a judge may and should influence the judge's decisions:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life".

The "richness of experiences" of Justice Sonya Sotomayor have resulted in a series of statements, in and out of court that, for a judge, are quite bizarre.

Of course, it is bizarre for a judge to claim that a decision, reviewing the same record and applying the same law, of a white male judge and a Latina female judge CAN be different.

After all, a judge is supposed to apply the law to the facts in the record, not "draw upon the richness of her experiences", which would make a judge an unsworn witness in the proceedings.

Yet, after making that speech, Sonya Sotomayor was promoted to the bench of the U.S. Supreme Court instead of barred from the bench.

Sotomayor's bizarre "drawings upon the richness of her experience" continued in a string of in and out of court statements in May and June of 2016.

In all of those statements, Justice Sotomayor's pragmatic point of view becomes clear - the ends justify the means, whether they are based on the law or not.


Attorney slave labor is good - if it serves the poor

(Violation of 13th and 14th Amendments are justified)

On May 17, 2016, Justice Sonya Sotomayor claimed that, "had it been in her power", she would have made attorneys to work for free to be entitled to a right to earn a living at all.

That statement indicated that, for Judge Sotomayor, the means, even if the means are violating the U.S. Constitution she is sworn to uphold, justify the end - in the context of her speech, providing forced-labor legal services for the poor.

Forcing people to work in exchange for a right to earn a living is, in fact, in violation of  at least three constitutional provisions: the 13th Amendment, the Due Process Clause of the 14th Amendment, and the Equal Protection Clause of the 14th Amendment (because other professionals are not required to provide free services in order to be allowed to earn a living).


Jury recall after dismissal is good

Violation of Due Process Clause of the 14th Amendment, right to impartial adjudication

On June 9, 2016 Justice Sonya Sotomayor authored a majority opinion in a diversity case in federal court which held:


The main issue was of substantive due process - whether it was fair to allow a dismissed jury who were, for a time being, no longer under oath not to talk to the public about the case and not to read about the case, to be recalled back to additionally deliberate and correct an error.

Since the case was not a federal question case, but a diversity case (the only reason it was in federal court is because the plaintiff and the defendant were citizens of different states within the United States), Justice Sotomayor was BOUND BY LAW to apply the substantive law of the state where the car accident (the subject of the lawsuit) occurred.

That is the requirement of the Erie doctrine.

As any law student will tell you, application of the Erie doctrine is "Civil Procedure 101".

Apparently, the majority in Dietz v Bouldin, including Justice Sonya Sotomayor, failed the competency test as to Civil Procedure 101 by not even mentioning the Erie doctrine or its application.

Instead, Justice Sonya Sotomayor found an "inherent power" of the FEDERAL court to make decisions of substantive law if the end (judicial economy) justifies the means - jury recall.

Since the holding was framed as the "inherent power" of the FEDERAL court (the Erie doctrine be damned), be assured that now juries will be recalled to "correct" whatever the court deems they did wrong in "federal question" cases - civil rights cases.

Not only the recall was a violation of the Erie doctrine where the federal court made a substantive decision without regard to the state law in the state where the litigated events occurred, but committing factual findings to the already "presumed tainted" jury was a clear violation of due process right to impartial court review.

Once the jury is discharged, their oath no longer applying, the jury have had the opportunity to talk to the non-jury member of the public, research the case on their own, and any attempts to verify whether the jury had ACTUALLY done that or not, should be precluded.

The opportunity creates the taint.

That's not what Justice Sotomayor said.

For Justice Sotomayor, the means (judicial economy) justified violation of the U.S. Constitution that she was sworn to uphold.


The righteous 4th Amendment dissent

After Judge Sotomayor claimed in 2001 that, while on the bench, she would draw from the "richness of her experiences" as a "Latina woman",

after Judge Sotomayor claimed in May of 2016 that she would disregard the 13th Amendment in requiring mandatory pro bono service of attorneys as a condition of earning a living, in order to "close the justice gap" (created by attorney regulation, for which the easiest solution is deregulation, not mandated slavery);

after Judge Sotomayor claimed on June 9, 2016 that for purposes of judicial economy, in civil cases, already dismissed - and tainted - juries may be recalled to deliberate some more and "correct mistakes" made before the discharge,

What Sotomayor says in her dissent makes sense. 

Yet, a judge shouldn't be drawing on her own experiences, as she did in her dissent, as Sotomayor does:

 - nullifies the value of the dissent and reduces it to a statement of an unsworn witness in the case.

And, when a judge acts as a yo-yo justifying violation of some constitutional rights, but not others - what is the value of her "fiery dissents" anyway?

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