"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, December 19, 2018

No discipline for SCOTUS Justice Kavanaugh: good or bad? The Trump litmus test continues

I have written on this blog many times that the election of Donald Trump has so far worked, and continues to work, as a litmus test for many ways of how the American government works, on federal and state levels.

Certain things which the law permitted the previous administrations to do, somehow becomes not permissible under this administration.

Certain things that were wrong - but not noticed - under the previous administrations, became more visible just because Trump is doing it.

I am planning a detailed overview of this phenomenon, but in this particular article I wanted to point out one extraordinary feature of the "Trump litmus test":  it has shed a light on the U.S. Supreme Court and what is very wrong about its operation over the last 100 years.

First of all, with the death of Justice Scalia (and unlawful filibustering by the Republican Senate of a nomination to SCOTUS by President Obama) and retirement of Justice Kennedy, Trump has got to fill two seats so far on the U.S. Supreme Court.

Same as President Obama, same as all presidents before him, President Trump has avoided as a plague in fitting the vacancy on the U.S. Supreme Court, the last resort in death penalty cases - candidates with criminal defense background.

The only people who have criminal law experience on that court are former prosecutors.  

Of the 9 current justices of the U.S. Supreme Court, 

  1. Stephen Breyer;
  2. Clarence Thomas;
  3. John Roberts (The Chief Justice):
  4. Ruth Ginsburg;
  5. Samuel Alito;
  6. Neil Gorsuch;
  7. Sonia Sotomayor;
  8. Elena Kagan;
  9. Brett Kavanaugh,
the only U.S. Supreme Court justice who does not have prior experience as a prosecutor is Ruth Ginsburg, and yet, Ruth Ginsburg's experience as a law professor and general counsel for ACLU between 1973 and her nomination to the bench in 1980 is not the equivalent of a background in criminal defense, since the ACLU has never undertaken criminal defense, and Ruth Ginsburg in particular did not work as a criminal defense attorney.

I thoroughly dislike Hillary Clinton and did not vote in the previous presidential elections because I did not see good presidential candidates in either of the candidates running in 2016.

President Trump, so far, also disappointed, having nominated to the court 2 white males, both former prosecutors, having so far confirmed the trend portraying background in criminal defense or civil rights litigation as a disqualification for public office (only one justice on the U.S. Supreme Court has a qualification in civil rights litigation, and NONE - in criminal defense).  Once again, this court handles criminal cases, and, especially, death penalty cases.

With NO justices having prior experience in criminal defense, while 8 justices having experience (and indoctrination) in prosecution, and the mentality of people having "enjoyed" prosecutorial immunity - which corrupts prosecutors' minds and drives them to score convictions, without regard whether the law is followed, with an eyes on the prize, career advancement.

For 8 out of 9 U.S. Supreme Court justices, prosecutorial positions did bring a career advancement, to the top of the American government, a lifetime appointment to a position where there are no job requirements, no accountability and an unlimited power over life and death (literally), people's fates, property, and over setting the law in the entire country - without authority for doing that in the U.S. Constitution, but by "well-settled" custom.

Since 1925, SCOTUS has asked - and received - from the U.S. Congress the gift of not having to review all petitions filed with the court, on the merits.

A SCOTUS judge is the only position where the judge does not have to preside over court cases other than impeachment of the President (applicable only to the Chief Judge of SCOTUS) and does not have to discharge functions other than administrative (swearing in highest officers of the U.S. Government).

Otherwise, there is no minimum of cases to review per year for SCOTUS.

If SCOTUS chooses no cases for review in a given year, they have a right to do that, too.  Nobody can make them accountable for refusing to review the absolute majority of cases (7920 out of 8000 filed, and then, we do not have official statistics of how many cases are REALLY filed published by the U.S. Supreme Court, only approximate numbers).

Cases that SCOTUS does take for review "coincidentally" are filed predominantly by 70 attorneys, the so-called "Echo Chamber", most of them having some kind of connection to the court (former clerks etc.).

Nothing too crooked.

Judges accept gift from parties and attorneys - for themselves and for their law clerks.

Periodically scandals flare about particularly corrupt gift-taking, but no impeachment of a U.S. Supreme Court Justice occurred on that ground so far, and the U.S. Supreme Court does not have a code of judicial conduct, but does have a code of silence for its clerks and a code of PERSONAL loyalty of clerks to justices, which has nothing to do with the U.S. Constitution that gives to justices their power, within its strict boundaries.

Justice Scalia was "found dead" at a remote Texas ranch with personnel speaking only Spanish, the ranch belonging to an individual who has had prior litigation with the U.S. Supreme Court that ended up in his favor.

The duck-hunting trip of the same Scalia with a party in litigation also did not result in discipline for Scalia.

Scalia's friend on the court Justice Ginsburg, while spewing open hatred to the current President, and having done so since before his elections, continues to preside over cases where he is a party, without recusal.

While President Trump is being investigated for "Russian collusion" by a special counsel, nobody investigates SCOTUS justices when they travel or lecture while paid by foreign governments.

In 2015, foreign sponsors paid (bought) U.S. Supreme Court justices for the following:

Roberts - lectures in Japan;
Ginsburg - lectures in South Korea; Switzerland
Kennedy with spouse - Austria;
Kagan - Israel;
Breyer - Great Britain

Ginsburg and Alito were paid by lawyers' organizations to travel abroad in 2015,

Ginsburg - to the Great Britain (paid for by the American College of Trial Lawyers), 

Alito - to the Dominican Republic, paid for by the Federal Bar Council - 

by organizations of attorneys APPEARING in front of these judges.

SCOTUS judges who reject the majority of incoming petitions, have time for side jobs.

For example, in 2015, the following side jobs were reported by SCOTUS judges (I summarized this information from justices' releases obtained by a watch-group on a Freedom of Information Request),  I have printouts of  copies of justices' actual financial disclosures for 2015 are on file.

Anthony M. Kennedy McGeorge School of Law, University of the Pacific  $                   12,500.00
Anthony M. Kennedy Colonial Williamsburg Foundation
Clarence Thomas Horatio Alger Association
Clarence Thomas Creighton University School of Law  $                   15,000.00
Clarence Thomas George Washington University School of Law  $                   10,000.00
Clarence Thomas J. Reuben Clark Law School - Brigham Unviersity  $                      2,225.00
Clarence Thomas The Daily Caller  Salary 
Clarence Thomas Liberty Consulting, Inc.  Salary and benefits 
Ruth Ginsburg Trust Article Fourth U/W Martin D. Ginsburg, Trustee
Ruth Ginsburg University of Michingan - Tanner Lecturer  $                   10,000.00
Samuel Alito ABA Advisory Committee on the Law Library of Congress
Samuel Alito Member Honorary Board of the Franciscan Monastery of the Holy Land in the United States
Samuel Alito University of Kentucky  $                      6,000.00
Samuel Alito Duke University Law School  $                   15,000.00
Elena Kagan Harvard Law School
Elena Kagan President and Fellows of Harvard College  $                   15,000.00
Stephen Breyer Dana-Farber Cancer Institute
Stephen Breyer The Pritzker Architecture Prize
Stephen Breyer Penguin Random House LLC, Royalty Income  $                 116,774.61
Stephen Breyer The authors Registry, Inc; Royalty Income  $                         384.93
Stephen Breyer Penguin Random House LLC, Nonemployee compensation $5,000

Note that, when SCOTUS Justices are paid lecturers in colleges and universities, they were disqualified from hearing immigration cases where colleges and universities were claiming standing and injury from Trump administration's "travel ban".

None of them recused.

And none of that became a burning issue in the American media or for the American public.

No "emolument clause" was invoked, no demonstrations held in the streets, no lawsuits filed and no criminal or impeachment investigations commenced.

In fact, complaints against U.S. Supreme Court justices die on filing - because NOBODY "under the law" in the United States may discipline a SCOTUS justice.

One might say that complaints against Justice Kavanaugh were politically motivated - since he was on the federal bench for 12 years, from 2006 to 2018, with no complaints filed against him.

The trigger for the complaints was not the judge's behavior, but him having been nominated by President Trump who certain people want to filibuster no matter what he does.

From that point of view, complaints against Kavanaugh, likely, did not have merit and were unfair.

But, that is not the point I am making here.

The point I am making is that the complaints, fair or unfair, meritorious or not, were not even REVIEWED by federal judges - BECAUSE Judge Kavanaugh has become a U.S. Supreme Court Justice Kavanaugh, and as such, unreachable by judicial discipline.

He (and his 8 associates) have a job that has

  1. no requirements of a minimum caseload;
  2. a marble palace and a practically unlimited budget - for 9 people to review court cases, for which the same court had, initially, a single room in the Capitol building;
  3. plenty of time to go, during business hours, to 
    1. talk to law students;
    2. talk to bar associations (all expenses paid for travel and accommodations);
    3. write books, sell them and advertise them;
    4. lecture for money;
  4. an ability to allow themselves to accept gifts in money and in kind for themselves and for their personnel from parties and counsel in litigation, and from foreign governments and entities - 

with NO ACCOUNTABILITY whatsoever.

The "phenomenon" of no discipline for a U.S. Supreme Court Justice BECAUSE he is a U.S. Supreme Court Justice was caught by the media because the complaints were against a Trump-nominated Justice.

But, the same applies to all other judges of this court.

Isn't it time to demand from the newly-elected democratic House in the U.S. Congress to stir up this sinecure that has nothing to do with the authority given to this court (a limited authority, mind) by the U.S. Constituion, and to re-establish this court the way it was planned by the "Founding Fathers" in the first place - 

not as a lifetime graft-making sinecure without any accountability and unlimited power, 

but a court of law that must resolve ALL incoming petitions on the merits.

If they do not have enough justices to review all incoming cases - expand the court.

If we have 150 justices of the U.S. Supreme Court, and if they have a strictly enforceable code of conduct, limited terms and a prohibition on making laws, and on accepting gifts of ANY KIND from the public and especially from foreign governments, entities and individuals - maybe, then, we will look the way we declare ourselves to be, a democracy?

Because the way SCOTUS is set up now smacks of a monarchy.

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