"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, October 30, 2016

Time to take the oathbreaker #JudgeRichardPosner off the bench

Richard Posner, a judge for the U.S. Court of Appeals for the 7th Circuit, an appellate judge, presides over trials as a trial judge.


Because he wants to, because he thinks that presiding over trials (something he did not do before being appointed to the federal bench) enhances his experience and makes him a better appellate judge.

There is a question though as to legality of assignments of Posner as a federal appellate judge to district cases, the conflicts of interest it creates for Posner's work as an appellate judge - and that is especially so that
  • trial experience is not a requirement for an appellate judge (obviously so, since Posner was confirmed to his position as an appellate judge without such experience), and
  • for an appellate judge to seek trial experience is weird - because an appellate judge must be content in restricting himself to the record on appeal and the issues it raises - and the record alone.
The record on appeal is the jurisdictional boundaries within which an appellate court and judge must operate.  If the judge is not happy with those boundaries - he should resign.

Judge Posner appears to be not happy with the boundaries of his job and seeks not so much experience but additional excitement of a trial court where he has more opportunities for in-person communications and to hand out his famous "benchslaps", for which he goes outside of the record and does "his own research" - which is prohibited to an appellate judge by the jurisdictional boundaries of the record on appeal only.

Yet, Judge Posner's job - for which citizens and taxpayers of this country hired him and are paying him, more than they pay a district court judge - is clear.

Judge Richard Posner was appointed by the U.S. President and confirmed by the U.S. Senate to be an appellate judge, and he draws a salary of an appellate judge - which is higher than the salary of a district court (trial judge).

Judge Posner is one of 12 judges in a very busy federal appellate court:

Federal appellate judges complain of crushing caseloads - in fact, so crushing that they decide 85% of cases and (according to my personal research, probably, 100% of civil rights cases), through "summary orders" instead of full-swing opinions.  In other words, the majority of federal appeals and an overwhelming majority of civil rights cases are decided in a negligent manner, because supposedly judges are too busy to decide "worthier" cases.

Of course, the law of equal protection requires that for the same fee litigants get the same review and the same quality of review - and federal appellate court do not have DISCRETION to give less time to some cases over others.

Yet, that's what they do.

Any additional activities of appellate judges further cut into time they already claim they do not have to provide full opinions for all appellate cases that come in front of them.

Thus, Judge Posner's trial judge activity is hurting appellate litigants, and appellate litigants whose cases are decided by Judge Posner's summary order may have questions whether Judge Posner and his panel decided to rule on a case through a summary order and not a full opinion because Judge Posner found it more entertaining for himself to play at the role of a trial judge in a high-publicity district court case.

He "volunteers for trials" - like he did

Yet, such "volunteering" is not supported by any law.

The assigned district judge must remain on the case from start to finish unless he disqualifies himself.

It is extremely rare - if at all happens - that the entire U.S. District Court would disqualify itself, so that a judge from another court would be invited.

Moreover, if a judge from another court is to be invited, a judge from the court of the same level - a district court judge - will be invited from that other court.

I found no announcements that the entire district courts recused so that Posner could be assigned, so assignment of Posner to trials was a FAVOR of the district court to Posner - a favor which was illegal
  • not only because Posner had no right to preside over trials, not only because
  • such presiding took him away from doing his job as an appellate judge, not only because
  • such assignments created a HUGE conflict of interest when his decision would go to his own court for an appeal, but also because
  • such assignments, catering to the whims of an appellate judge, tainted ALL decisions in ALL appellate cases coming in front of Posner from that court - creating appearances of trading favors.

Finally, is it really such a good idea for appellate judges to have trial experience, and for sitting appellate judges to continue to engage in presiding over trials in a court below?

My opinion is - NO and NO.

First, an appellate judge has a jurisdictional restriction - the Record on Appeal.  That's it.  That's all that the appellate judge is allowed to see and consider, and an appellate judge is allowed to consider ONLY issues "preserved for review".

Whether the appellate judge does or does not have trial experience, whether he is aware of possible trial dynamics - is irrelevant for appellate review.  It reviews only the issues of law and whether the trial court and trial attorneys followed the rules, or whether the trial court "abused its discretion".

When an appellate judge wants to fit the shoes of a trial judge in order to "better" decide appellate cases, that smacks of bias - because if the appellate judge learns about "trial dynamics", he would want to inject his own experience into his decision-making, taking him outside of the record on appeal, and Judge Posner is already known for doing his own investigations outside of the record on appeal, something that even a trial judge is not allowed to do.

In other words, when an appellate judge seeks to also gain trial experience after being appointed as an appellate judge, that indicates not only that the judge is not happy within his boundaries as an appellate judge - and thus is not a good appellate judge and should be removed from his position.

Posner also seems not to be sufficiently entertained as a federal appellate judge - even though, despite the supposedly "crushing" caseloads that cause the 7th Circuit, as all other federal court, to dump over 85% of federal cases and, likely, 100% of civil rights cases through sloppy 2-page "summary orders", Posner have found time to:

Judge Richard Posner

according to his official biography (including his career path) published on his page at the Chicago School of Law:

Judge Posner has not worked in his life for one second other than in taxpayer-backed jobs - and, while he engages in his lucrative hobbies instead of doing his job, and while his lifetime of financial well-being is derived from taxpayer-backed jobs that require an oath of loyalty to the U.S. Constitution, he has the audacity to claim that it is useless for a judge who is deciding cases regarding violations of the U.S. Constitution to study the U.S. Constitution (the Supreme Law of the Land, the law that Judge Posner has pledged to protect and uphold as a condition to have a law license and as a condition to get on that federal bench).

From a taxpayer point of view, Posner can be brilliancy itself, but since he does not do his job, and instead seeks to entertain himself with anything other than doing his job of a federal appellate judge, the way that job is supposed to be done by law -

and do it within the record on appeal, as the law requires, without additional out-of-the-record investigations by the judge, without "volunteering" for trials to "enhance" his judicial abilities as an appellate judge -

he should be removed from his bench, and stripped of his law license - because he lied to the licensing authorities, lied to the U.S. President, lied to the U.S. Senate and the American people and took oaths of office to the law that he deems worthless to know and research.


law school graduate Richard Posner comes before a law licensing committee and claims - "it is useless to study the U.S. Constitution".   He would have been denied his law license application up front. 

So, he lied to the licensing commission in 1962 that he will uphold the U.S. Constitution that he considers a useless document, and got a lifetime of financial well-being, 54 years so far, from us the taxpayers paying him for that lie.

Imagine that presidential nominee Richard Posner would come to the U.S. Congress and say at his confirmation hearing what he is saying now - "it is not worth it for a judge to study the U.S. Constitution".

He would not have been confirmed - and likely, his career from that time on would have been over, since confirmation hearings are public record and the media would have destroyed him.

So, he lied to the U.S. President and to the U.S. Congress that he will be faithful to the U.S. Constitution - and got his well-paying job, 35 years ago, and sat on the taxpayers' necks for 35 years while treating his oath of office as a joke.

Two days ago, I posted about what a waste to taxpayers the U.S. Supreme Court is, pretending it does a job it physically cannot do with less than 12 minutes per certiorari petition for review and judges pursuing their hobbies and paid trips by litigants while law clerks are slaving as judges.

Today, I am posting about yet another waste of our money - paying lower-level federal judges who do anything but their jobs, at our expense, in order to entertain themselves, enhance the value of their side commercial projects like book-publishing and teaching, and while mocking the very oath that they took to get their public employment jobs and to sucker us for our hard-earned money.

They have no right to remain on our payroll.

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