"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.

Wednesday, February 8, 2017

Will the 9th Circuit #JudgeMichelleTFriedland be impeached, criminally prosecuted and disbarred for trying to elicit out of the President's counsel top-clearance information she was not permitted to know, to be heard by the entire world on the Internet?

When listening yesterday to the oral argument in the U.S. Court of Appeals for the 9th Circuit of the motion to stay the countrywide Temporary Restraining Order (TRO) of Judge James Robart out of the U.S. District Court of the District of Washington, I was completely floored by not just the bias, but an assault upon the U.S. government’s position by the female judge Michelle T. Friedland,

which was completely inappropriate.

The judge did not allow the President’s counsel to speak, asked him multiple irrelevant questions, and shamelessly threw lifelines of argument to the States’ counsel.

For example, Judge Friedland kept asking the President’s counsel whether he has provided evidence that the 7 countries affected by the President’s Executive Order are dangerous to “justify” the Executive Order.

While asking that question, Judge Friedland knew very well that:

·       She did not have clearance on national security issues that the president has;

·       That the counsel for president who was arguing the case in court, most likely, also did not have national security clearance;

·       That other judges and other counsel present did not have such clearance, and, most importantly,

·       That the oral argument was broadcast to the entire world on the Internet, meaning that any disclosures about the President’s considerations about national security will be picked up by all who was not lazy to listen – people from around the world who, most certainly, had no clearance, and no business, to be privy of top-secret national security considerations of the United States.

Judge Michelle Friedland also knew the applicable law, including constitutional, statutory provisions and precedential law, clearly indicating that discretionary executive orders of the President of the United States regarding non-citizens located outside of the United States, as to whether to let them into the country or not, is discretionary and non-reviewable by the court, as long as it has rational basis on its face.

In other words, Judge Michelle Friedland, as well as other judges, knew that courts in the country has always refused to second-guess considerations of the executive branch on issues of national security – as well as considerations of state and federal executive branches on any other issues.

For example, federal courts repeatedly and routinely defeat challenges to constitutionality of a variety of state and federal regulations, claiming that courts do not get to look behind the face of the regulation, if ANY rational basis can be found to justify the regulation – where the rational basis found by the court to justify the regulation would not necessarily be the same as the government has ACTUALLY used to justify it when enacting/promulgating the regulation.

Yet, Judge Friedland somehow wanted to know about the specific evidence and specific factors that motivated the President of the United States to issue a facially neutral Executive Order that does not discriminate against Muslims on its face – because,

·       first, it does not contain words “Muslim” or “Islam”; and

·       second, is directed from people of any faith or no faith coming from the 7 designated countries;

·       third, is not directed at people coming from the overwhelming majority of Muslim countries; and

·       fourth, is directed at people coming from the same countries that were the subject of previous travel restrictions by the former president Obama’s administration in 2015 and 2016.

Judge Friedland literally made the President’s counsel stammer when she asked him about the specific evidence and factors that the President relied upon when issuing the Executive Order.

While I did not envy President’s counsel’s predicament, facing an obviously biased and irate judge, very energetically acting as an advocate for his opponent, he had a duty to his client, a duty he did not carry out very well – because of his obvious personal fear of the judge, and because his own livelihood depended on the judge who regulated and controlled it.

The proper answer to such verbal assaults by the judge would be:

1)     to the question – do you REALLY think, counsel, that President’s power to issue Executive Orders in this case is unreviewable by this court (especially with the tone asked, the question sounded like a threat) – Yes, Your Honor, based on existing precedents I really believe so.

2)     To the question – what evidence and factors did the President use in issuing the Executive Order – the proper answer would have been:

a.      “Your Honor, that evidence and those factors are subject to top clearance that neither I, nor my opponent, nor this court, nor the people listening to this oral argument on the Internet, have”; and

b.     “I object to the inquiry into deliberations behind the Executive Order that is neutral and has rational basis on its face”.

Instead, the President’s counsel, in order to get at least something from the court, started to mumble, offer concessions of all kinds, including concessions that can further affect the appeal, and the case below.

It was notable for me that Judge Friedland was concentrated about two questions:

1)     Evidence and factors upon which the President of the United States based his Executive Order – which was beyond her authority of review under Article III of the U.S. Constitution, and beyond her, the court’s, the counsel’s and the Internet audience’s clearance;

2)     Helping out the States with the obvious problem of standing, and advocating for the “proprietor standing” of States as “owner” of state universities that allegedly “suffer” – without evidence that universities actually did suffer – from their faculty and students “being stranded abroad”, once again, without evidence as to how many of “students and faculty” of state universities in the States of Washington and Minnesota were “stranded abroad” because of the Executive Order, and how it affected the universities in question.

Because of Judge Friedland’s shameless advocacy on behalf of the Attorneys Feneral of the States of Washington and Minnesota, I really wonder how the assignment process of judges in the 9th Circuit was handled that landed, out of 44 judges of the court, Judge Friedland, a judge with a personal history suggesting conflicts of interest and personal involvement in issues litigated (I will describe Judge Friedland personal history that makes her partisan advocacy in this case on behalf of the States highly questionable), at the top of the panel assigned to decide this case.

With Judge Friedland actively plowing the President's case into the ground, with complete disregard of the law, and the 86-year-old judge Canby following in her footsteps, I would not be surprised that "the court" will decide against the President.
Yet, the President can, after that, request an en banc hearing (by the entire 44-judge court), and, likely, can go further to the U.S. Supreme Court.
I would replace counsel to argue the case with somebody more formidable than the mumbling counsel that handled the hearing before Judge Friedland.
In the end, the discussion yesterday before Judge Friedland and her two colleagues narrowed down to whether the scope of Judge Robart’s TRO should be also narrowed down to just people who have never been in the country before – which made no sense at all.

The clear question was – why the States factually dropped, at the clear suggestion of Judge Friedland, the frivolous “parens patriae” (3rd party) standing and grabbed the lifeline thrown to them by Judge Friedland (a university professor herself, and daughter of two university professors), emphasizing the “proprietary” standing as “proprietors” of State Universities – while providing no evidence whatsoever as to how many people allegedly stranded beyond the U.S. borders were actually “students and faculty” of state universities of the State of Washington and Minnesota, and Judge Friedland did not grill them on lack of that evidence?

Because the claim that the States had standing on behalf of unnamed 3rd parties within the state asserting their alleged “constitutional” right to hypothetically be able to travel within those 90 days that the Executive Order was effective was clearly frivolous:

·       As a claim on behalf of 3rd parties;

·       A claim by states challenging an exclusive area of discretionary federal decisions; and

·       A claim regarding hypothetical, speculative plans for travel.

And because the presiding judge Friedland desperately wanted the States to win?
To be cast by the media and the arranged crowds of protestors as "the hero", "the savior of the country", "showing" to the President that he is not "above the law", "the law" being what the judge says, not what the law really is?
It was obvious that the attorneys general for the States of Washington and Minnesota were actively inventing new constitutional rights – simply to spite the new president in any way and to gain publicity for themselves for purposes of their own future careers – and that Judge Friedland was actively helping those State Attorneys General to do that, in complete disregard of applicable Article III constitutional restrictions on her own power, statutes and precedent that Judge Friedland promised to honor at her recent confirmation hearing back in 2014.
As to Judge Friedland's "credos" announced in her questionnaire and confirmation hearing when she "ascended" to the federal bench in 2014, and how clearly she violated her oath of office, as well as to her personal background that required her, in my personal opinion, to recuse from this case, I will run a separate blog article.

At this time, my question is - will Judge Friedland be impeached for vigorously trying to get out of President's counsel "evidence" and "factors" of how the President arrived at his Executive Order, even though those "factors" and that "evidence" clearly involved top-clearance that the judge did not have, and while the judge clearly knew that the oral argument was broadcast to the entire world on the Internet?

Of course, #JudgeMichelleTFriedland did not become the "youngest female judge on the federal bench", and skipped the district court bench for her merits, having been appointed by President Obama immediately to the appellate court federal bench (same as Judge Neil Gorsuch, President Trump's current Supreme Court nominee, by the way) - she most certainly has powerful connections in the government.

But, there are lines that nobody, including judges, should be allowed to cross - and exposing or attempting to use her power in order to expose top-clearance national security considerations - is one of those lines.

As it was cautiously mentioned by a prominent law professor Jonathan Turley in his blog:

"Friedland particularly pressed the Administration on its basis for picking these seven countries: a line of inquiry that many judges would view problematic if the court is viewed as second guessing such national security determinations."

"Problematic".  An understatement of the century.


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