"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, February 5, 2017

#JudgeJamesRobart's "Magic Square", the rule of the crowd, or once again on independence of the judiciary

In the beginning was the Word.

And the word was of judges.

And the judges decided without any reliance on any laws - just because they believed whatever they say was the law, and because they were saying in accord with what was blasting out of TVs and what was chanted by crowds in the streets.

Trump is bad.

Whatever Trump is doing is bad.

Judges - stop what Trump is doing, all of it, because it is bad, because it is being done by Trump, who is bad.

And judges did.  Without any reliance on any rule of law.

In Washington.

And in Massachusetts.

And in Virginia.

And in California.

And in New York.

And then, in Massachusetts, there was a change of judge from Judge Alisson Burroughs to Judge Nathaniel Gordon, and a change of ruling.

The new assigned judge in the federal court in Massachusetts, Judge Nathaniel Gordon, ruled not based on the red rag with the words "Donald Trump" on it, but based on the law.

Judge Nathaniel Gordon of the U.S. District Court in Massachusetts, the first judge out of a number of judges who were presiding over similar cases so far, analyzed the law, and said in his decision that there was no legal basis to stop Donald Trump, the president of the U.S., to do what he was doing with his Executive Order on immigration, without regard whether crowds in the street liked it or not.

And THAT was independence of the judiciary and a dispassionate decision based on the law.

But, that was not what the crowd wanted.

So, Judge James Robart, out of another federal court, in Seattle, Washington, cancelled what Judge Gordon said and, in a decision that had no analysis that Judge Gordon's decision said, ruled - no, Trump must be stopped, period.  My judicial word is law. 

This is the ENTIRE amount of "legal analysis" by Judge Robart, making no analysis of the underlying substantive law whatsoever.

And this is what Judge Robart ordered:

Of course, what judge Robart did, ruling that his order has nationwide application, was illegal and the best way to describe, why, is to draw a square, let's call it "Judge Robart's Magic Square".

Not only Judge Robart forgot about such trifles as "standing to sue" or elementary explanation why he things that plaintiffs have a chance of "prevailing on the merits" when:

1) they have no standing, and even if they had, then,
2) as Judge Gordon ruled in his decision, the applicable test for resolving the problem will be the "rational basis test", which plaintiffs will fail (resulting in dismissal of the lawsuit, possibly with sanctions and attorney fees against those who filed it).

Judge Robart, in his chase of the red rag with Donald Trump on it and in his zeal to appeal to the crowds in the street and in the media, did not even care to consider that, as the "Magic Square" of jurisdictions about shows, Judge Robart was never:

  • nominated by the president;
  • or confirmed by the U.S. Congress
to preside over cases in federal court in Massachusetts, or in the 1st Circuit, and for that reason, he could not possibly have the power to cancel the decision of Judge Gordon in Massachusetts, which he did, spreading his decision to "all the country", without exceptions for Massachusetts.

So, thanks to Judge Robart's extraordinary preference of a place in the limelight to the rule of law, there is now a mess - at least in the state of Massachusetts, where AT THE SAME TIME, there are two judicial orders, from two judges, applicable to the situation - Judge Gordon's, denying TRO to plaintiffs and allowing President Trump's Executive Order to be applied within the State of Massachusetts, and Judge Robart's, out of Washington, illegally cancelling Judge Gordon's decision and imposing the TRO, without any explanation, legal analysis or legal basis.

President Trump filed a notice of appeal of Judge Robart's decision, and, while the appeal was being prepared, filed an emergency motion to stay Judge Robart's TRO, correctly stating that Judge Robart hugely overstepped his authority in second-guessing discretionary decisions of the U.S. President on national security issues, ruling in favor of parties without standing, and, among other things, had no authority whatsoever to overrule Judge Gordon, whose decision was first-in-time before Judge Robart's.

Under the circumstances, the 9th Circuit had not choice but to agree with President Trump - if the rule of law was to be applied.  After all - see the Magic Square above - the 9th Circuit also had no power to overrule Judge Gordon's decision.

But, the 9th Circuit so far denied President Trump's emergency motion for a stay.

So, the case will have to be ultimately decided by the U.S. Supreme Court.

But those who want to say once again that President Trump has to somehow respect the judge who did THAT (see above), only because crowds in the street and in the media chanted loud enough - and do that by breaking every rule in the book and by not even QUOTING the law he relied upon - should go back and read the definition of what the rule of law is.

It is the rule of WRITTEN law, actually, and the written law is what the People's representatives put into law, and it is not for the judge to MAKE the law.

Judge's word is NOT the law if it does not FOLLOW the law.

And, "independence" of the judiciary does not mean independence FROM the law.

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