"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, December 28, 2017

ABA got snubbed by President Trump for lack of neutrality. Bravo, President Trump, that's a good start. Will you now make the next step and support deregulation of the legal profession that stifles access to justice?

This was an interesting year.

The appearance of the "bad boy" Donald Trump in the White House has worked as a litmus test of the claim that the U.S. is governed based on the rule of law.

Fired and ired by the loss of the presidential seat and the graft that accompanied it, the losing opponents of Donald Trump and his policies started "The Resistance".

Judges, prosecutors, attorneys general of states joined that "Resistance".

And, in view of "The Resistance", the law stopped mattering (or, more precisely, it has become more clear that the law never mattered in the first place).

Lawsuits by foreigners located outside of the U.S., as well as by people suing on their behalf - all of them lacking standing under U.S. statutory law and precedents of the U.S. Supreme Court - started to get sweeping court "victories" with nationwide judicial injunctions against the President forbidding him to exercise his discretionary powers.

Judges started to question the President - including in online direct debates, with access to the debates from any point in the world through the Internet - about bases of his national security decisions, while having no clearance to know those bases, and while such bases constituted a matter of national security.

Judges started to forbid the President to withdraw discretionary federal funding of states because states refused to comply and actively interfered with enforcement of federal statutory immigration law.

Judge Ruth Ginsburg of the U.S. Supreme Court who openly and viciously opposed Trump, expressed her personal animosity to him, and undertook an all-expenses-paid-by-an-antiTrump-litigant trip (who bribed her and her husband for all-expenses-paid vacations in Hawaii before) likely in order to fix a lower-court case against Trump, continues to stick like glue to cases where Trump is a party, refusing to recuse from those cases despite a letter from 50 senators based on her publicly expressed personal animosity towards the President, and makes decisions against Trump (see also here), and the press cheers her on as a "role model in troubled times".

Prominent constitutional law professors argue that the President does not have authority to give pardons, even though such authority is reflected in clear text of the U.S. Constitution (see those arguments here, here, here and here).

Illegal immigrants are marching in the streets protesting against a discretionary decision of the President to cancel a discretionary deferred deportation program illegally created by his predecessor over the head of the U.S. Congress - and sue the President, asking the court to make the President take bake the cancellation of his predecessor's discretionary order, even while the President asked the U.S. Congress to do its job and pass the law in that particular area.

In other words, illegitimate exercise discretion of one U.S. President to legislate in the area of immigration law through executive orders is cheered while the legitimate of another U.S. President to cancel that illegitimate legislation and ask the appropriate branch of the government to legislate in that area, is sneered and is the subject of lawsuits.

The Attorney General of the state which has bled a million people since 2010 because of high taxes and high corruption in the state, who is defending and uses enormous amounts of taxpayer funds on defense of violators of the U.S. Constitution and resists compensation to wrongfully convicted of crimes in his state, proudly announces that he turned his office into a "bastion of resistance" - to the U.S. President.

The American Bar Association that viciously - and unfairly - criticized Trump before his election as President for his protected by the 1st Amendment and fair criticism of a biased judge (see disqualifying information about Judge Curiel here and here), and that, due to that criticism, could not position itself as a "neutral expert" for nominations of judges by Trump, filibusters Trump's judicial nominees.

This surreal bacchanalia of lawlessness has, of course, nothing to do with the "rule of law", honor, ethics or professionalism of the legal profession, or the judiciary.

And then, the bad boy Trump threw yet another stick in the pond by undermining the cozy existence of the legal establishment, possibly showing that he would later go further and be open to the idea of supporting deregulation of the legal profession, at least where all federal judges must be state-licensed attorneys.

At this time, Trump made the first step in that direction.    

What the ABA failed to consider while filibustering judicial nominees of the President is that the President's deferential consultations with the ABA for their "recommendations" and "seal of approval" of federal judicial nominees is not part of any laws.

It is a deferential practice started by President Eisenhower, which is not obligatory to any succeeding Presidents, including Donald Trump.

And President Trump ended that practice.

Of course, there is a lot of ire about the President snubbing the "venerable" attorney's association.

But, the President is the sole authority to nominate judges according to the U.S. Constitution, while the ABA that controls such nominations by its "qualified - not qualified" ratings, and controls access to justice of the entire country through the attorney monopoly, prohibition for people to pick their own court representatives and requirements that judges must be attorneys licensed by states (and graduates of an ABA-approved law school) has no place in the U.S. Constitution at all.

So - bravo, President Trump, on removing the lawyers' guild from nomination process of federal judges.

And - let's remove the lawyers' guild from control of the judiciary by removing the requirement that all federal judges be graduates from ABA-approved schools and be state-licensed (and state-controlled) attorneys.

That will be a start in the right direction - true separation of state and federal powers.

As the U.S. Constitution that every public attorney and every public official in this country is sworn to protect requires.

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