"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, May 31, 2017

Irresponsible journalism by NBC: celebrating judicial misconduct as heroism

NBC has recently published an article about the concurring opinion of the 86-year-old federal appellate judge from the U.S. Court of Appeals for the 9th Circuit Stephen Reinhardt - where, after reporting that the judge has supposedly condemned "inhumanity" of a court decision (of the same court) supporting the government's decision to deport a farmer who has been in the country for 28 years.

The decision, according to NBC, clearly criticizes, by name, President Trump's administration's decision to deport the farmer.

And, of course, the focus of the article is the judge's condemnation of the decision and criticism of President Trump.

Only at the end of the article did NBC actually mention that judge Reinhardt "concurred" (agreed) with the court decision to AGREE with President Trump's administration to DEPORT the farmer and protested only as a "citizen".

Since Judge Reinhardt agreed with the rest of the court that the man should be deported, his opinion as a citizen not only does not matter, but it is judicial misconduct for a judge to even put his personal political opinion into his official judicial order.

Does Judge Reinhardt have a 1st Amendment right to express his opinions about the Trump administration and its immigration policy?

Sure, Judge Reinhardt, "as a citizen", has such a right.

But, "as a citizen", Judge Reinhardt is required to express his political opinions "as a citizen" in other forums - and not to use his judicial position to engage in personal political protests.

Because doing that is judicial misconduct subjecting Judge Reinhardt to impeachment.

But, to NBC, that conduct is somehow to be celebrated.

Because, had NBC started its article with the end phrase - that Judge Reinhardt actually AGREED to deport the man, while grumbling "as a citizen", it will be non-news.

Here is what Judge Reinhardt and Judge Nguyen said in their JOINT concurring opinion:

There were only TWO judges on the appellate panel where there usually are three judges, which is already an unusual and messy situation, INVITING the result that followed - because even if one of the judges would be for granting the emergency stay motion and the other is for denying it (if Reinhardt would be consistent in his opposition to deportation and voted against it), that would only have resulted in a "tie", and the decision of the lower court, denying the stay of deportation, would still be carried out.

But, Reinhardt did not do even that.

Instead, he AGREED to DENY the emergency stay of deportation - and only then grumbled, for publicity no less, about unfairness of HIS OWN decision.

Then go 5 pages of lamentations about the "good man" ripped out of the arms of his family and deported to Mexico after 28 years illegally spent within the U.S. (interspersed with a footnote regarding his DUI convictions, so the man WAS a jeopardy to the public).

Those who say he isn't should look in the eye of families of people who were killed by drunk drivers.

I cannot verify what Judge Reinhardt said that the lower court record does not support the idea that the deportation was based on the drunk driving record - because the federal court locked up information about that supposedly open case (without an indication that Dkt. 11, the memorandum of law by the government, was sealed).

Since it was not sealed, it should be open to the public, yet I get this message from when I am trying to reach it:

So, Judge Reinhardt is engaged in just a little bit of playing with the public opinion here - where he asserts that something is incorrect while knowing that public access to court records to verify his words is - illegally - blocked.

Any opposition by the government - the memorandum of law and the letter of the Assistant U.S. Attorney General, are blocked from viewing on Pacer,

only the petition claiming "great abuse of discretion" by the U.S. Attorney's office is available.

It appears that, for whatever reason, age or not, Judge Reinhardt is losing his grip and is implying in his concurring opinion that, for some reason, even when a federal court does not have AUTHORITY (jurisdiction) to grant the relief requested, it still somehow has authority to "find" that the deportation that will lawfully follow will be unfair and unjust.

Well, if a court does not have AUTHORITY to render a decision, it must be clear to any 1st year law student that the court may not go any further to "find" anything after that.

Not so for Judge Reinhardt.

Yet, a judge is a public servant hired by taxpayers to apply the law, not to express his personal opinions as to that law "as a citizen".

"As a citizen" Judge Reinhardt can hit the street as a protestor, petition the government and talk to his legislative representative in Congress.

That's all he can do.

He has no right to impose his personal political opinions as official judicial decisions.

That's judicial misconduct, and Judge Reinhardt well knows it.

If NBC reporter Pete Williams who irresponsibly turned obvious judicial misconduct, "citizen" lamentation of a judge about deportation of a drunk driver (while agreeing with the deportation) into a cheap clickbait, does not know how to report on legal news, maybe, he should quit his job.

Of course, if NBC enjoys turning into yellow press - that's freedom of press. 

But, NBC took a stand recently on "fake news", didn't it?

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