"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.

Thursday, June 16, 2016

When democracy works to oust misbehaving judges - and when it doesn't

I recently described on this blog how a judge handcuffed a young female attorney for making constitutional arguments in court on behalf of her indigent criminal defendant.

I am happy to report that the judge was not re-elected to another term.  Democracy worked - in this case - and the judge was ousted by voters, after media reports of his outrageous misconduct.

That does not mean that the judge should not be also disciplined and forever barred from running for a judicial office or being appointed to a judicial office again.

Unfortunately, democracy does not always work this way.

Even where judges are elected in state elections, the power of the voters to do what they did by ousting the handcuffing judge Hafen, absolutely depends on the decision of third parties whether to run in opposition to the judge voters want to oust.

If the judge is running unopposed - as it happened in the case of the "Stanford rapist"-coddling judge Aaron Persky, the judge is still re-elected, whatever is the position of the majority of voters, because there is no such thing, unfortunately, as a possibility to cast a vote against a candidate that runs unopposed, although, I believe, it is a valid idea to consider

Moreover, federal judges, who hold tremendous power over people's property, constitutional rights and life and death, literally, because there is still death penalty in federal criminal proceedings, and all state death penalty sentences go through federal courts on habeas corpus petitions, are appointed, not elected, and are appointed for life.

Moreover, no matter what they do in cases, they are protected by both the judge-invented absolute judicial immunity for malicious and corrupt acts, and by the federal Judicial Misconduct and Disability Act that precludes any review of complaints regarding actions of a judge in a court case or related to a court case (even corruption related to a court case).

The remaining avenues are appeal, which most often does not work, because federal appellate court have a policy to review civil rights complaints through summary orders without thorough review and to endorse whatever the district court said, even if the judge in the district court committed misconduct, or impeachment, which is practically impossible to obtain.

In my next blog I will show the power of a federal judge to harass people and do it with what appears to be, as of now, absolute impunity.

Stay tuned.

No comments:

Post a Comment