Dean Chemerinsky makes startling (and startlingly incompetent) statements in an amicus brief regarding the pardon of Joe Arpaio

I wrote on this blog about the criminal case against Joe Arpaio, see Part I and Part II here, about how politicized and unlawful the whole proceedings, including the conviction, was, and that if we want to be the nation ruled by the rule of law, we must accept that the rule of law equally applies and gives rights to people we like and especially to people we do not like.


That approach to the rule of law is, apparently, not in the mainstream of political and legal thought nowadays.

For example, recently the new dean of the University School of Law at Berkeley, California, #ErwinChemerinsky, promoted by his school as a "thought leader" and a "living legend—a person who exemplifies the very best that the field of law has to offer: brilliant, warm-hearted, thoughtful, open-minded, and deeply engaged in the culture of public service", filed an amicus brief with the U.S. Supreme Court challenging constitutionality of Presidential pardon to Joe Arpaio.

Erwin Chemerinsky is a somewhat of a notorious figure.

• He was a paid lecturer of BarBri while remaining a professor and/or a dean of various law schools, while BarBri was sued for engaging in anticompetitive activity and underhanded tactics in driving its cheaper and better rivals out of business, thus undermining the quality of legal education and, ultimately, the quality of lawyers for us, the public and consumers of legal services;
• He opposed the recall of judge Persky who sentenced an athlete from his own alma mater to 6 months in jail (3 months for good behavior) for non-consensual sex with an unconscious woman - and the conflict of interest for Chemerinsky, an attorney licensed to practice law in California, supporting a judge against public outrage, while the judicial branch regulates and controls Chemerinsky's own law license and livelihood, is clear;
• In 2016, Chemerinsky not only represented a judge who was disqualified out of several cases through the use of a peremptory challenge by prosecutors, and not only argued that an absolute right to a peremptory challenge of a judge by a party is not absolute and has some kind of constituional limitations (while representing a judge who is not a party in a criminal proceedings and has no say in the matter), but also called for a federal investigation of prosecutors against whom his powerful client (a client who belonged to the branch of the government regulating Chemerinsky's own law license) belonged.  

I do not know how "warm-hearted" Erwin Chemerinsky is, but I do know criminal law, and I have a funny feeling that Erwin Chemerinsky had no clue what he was writing about, and wrote to justify his ultimate politically sought conclusion - that the pardon is unconstitutional.

In his amicus brief regarding the supposed unconstitutionality of Arpaio's presidential pardon, Chemerinsky follows and attempts to encourage the latest dangerous trend of identity politics in law where the identity of the party defines what rights that party is given, or not given by courts.

Since the election of Donald Trump as the President of the United States I monitor an interesting phenomenon in courts – the rapid disappearance of laws as basis of judicial decisions.

Any civil rights attorney knows how difficult it is to bring a civil rights case through a motion to dismiss and/or a summary judgment.

And, any civil rights attorney knows that it is nearly impossible to obtain a preliminary injunction in a civil rights case in federal court.

All that changed when Donald Trump or a member of his administration (like Jeff Sessions) are sued – even in their official capacities, which means, as any law professor teaching Civil Rights Litigation will tell you, means that the American taxpayers are being sued.

Reason and “respect to precedents” and to statutes disappeared as well as the law.

Preliminary injunctions are handed left and right.

·        Prohibiting the President to enforce immigration laws and block entry of certain immigrants into the country for considerations of National security – now courts demand that the President spill national security secrets (for which judges do not have clearance) in open court proceedings;  now, contrary to statutory law and existing precedents, immigrants located beyond U.S. borders suddenly acquired a right to sue that they never had before, and so did their relatives within the country, as well as their supposed employers and universities where they are going to supposedly enroll – and standing on purely economic grounds is judicially created for all these categories that supposedly trump (no pun intended) President Trump’s absolute exclusive prerogative to handle national security questions and regulating who does or who does not get to get a visa and entry into the country;

·        Prohibiting the federal government from deciding whether to give or not to give states or municipalities gifts of federal money – and mandating that they finance state social and law enforcement programs, a state obligation that federal taxpayers do not have to finance, and judges have no right to enforce.

We have people suing Donald Trump for issuing an executive order (the so-called “travel ban”) and for repealing an executive order (DACA) – I will analyze the grounds for the lawsuit in a separate blog.

We have people suing Donald Trump’s administration for a “right” of immigration attorneys NOT to represent people throughout an immigration proceeding – while claiming that it is done in those same people’s best interests – and they actually win preliminary nationwide injunctions.

And, apparently, all these lawsuits are fueled and brought by lawyers who have no compunction about spending scarce judicial resources and taxpayer money, putting the law on its proverbial head and replacing the U.S. Constitution, federal statutory law and the concept of separation of powers with a wholesale judicial whim based on just one principle – the identity of the U.S. President who dared to have been elected when the establishment did not want him there.

Presidents before Trump deported people – and no lawsuits were filed.

No DACA existed before President Obama – and previous presidents were not sued, or had riots in the streets of illegal immigrants claiming their supposed right to remain in the country, simply because they already received free education at taxpayer’s expense without taxpayer’s consent in this country and simply because they were children when they were brought here by their parents.

It is apparent that the media, the public who does not like this particular President finds fault with him at every turn – hair color, choice of wife, etc.

Public discourse about what the President of the United States is doing, under the 1^st Amendment, may be as vile, without becoming violent, as the public, or its separate members, wants it to be.

Yet, federal courts are bound by laws to resolve disputes based on federal law only – and that is, as the Supremacy Clause states:

·        The text of the U.S. Constitution;

·        The laws made pursuant to that U.S. Constitution – which means only statutes enacted by the U.S. Congress; and

·        U.S. Treaties.

That’s it.

Nothing else.

There is no such thing as “federal common law”, and precedents of any federal courts, including the U.S. Supreme Court may not be considered to outweigh the above three components of the Supreme Law of the Land.

Moreover, rights of the President clearly established by the text of the U.S. Constitution and/or a statute enacted by U.S. Congress may not be questioned by a court unless the court wants to declared the statute the President follows unconstitutional.  Courts have no rights to CHANGE the law through interpretation – only the U.S. Congress, under Article I of the U.S. Constitution has the power to create laws.

Let us revisit what separation of powers means.

Executive branch (President)	Legislative branch (Congress)	Judicial branch (courts)
Enforces the U.S. Constitution and statutes enacted by the U.S. Congress through powers provided to the President under Article II of the U.S. Constitution	Enacts laws within its Article I authority and in compliance with the U.S. Constitution, after consulting with their constituents – VOTERS, citizens of the U.S., not immigrants and not illegal aliens	Resolve individual disputes between parties based on the U.S. Constitution and statutes enacted by the U.S. Congress

·        Federal courts may not set policy, it is an exclusive legislative function of the U.S. Congress;

·        Federal courts may not change laws through their interpretation, to mean the opposite of what the laws’ clear text says;

·        Federal courts may not write into the statutory law or into the U.S. Constitution what is not there.

Courts may only resolve individual disputes based on the existing U.S. Constitution and federal statutes and treaties – or declare those federal statutes and/or treaties unconstitutional. 

That’s it.

But, since the election of Donald Trump as the President of the U.S. it has become even more obvious that courts are not content with the role of a detached apolitical arbiter dispassionately applying the law handed down to them by the U.S. Constitution and the U.S. Congress.

Courts want to be creators of the law, courts seek publicity through populist decisions, and there is a whole class of prominent, rich attorneys who support and encourage federal courts to usurp the role of lawmaker and to even change the U.S. Constitution by

Unfortunately, at least judging by comments in the media, there is a wide-spread belief in the public that anything – anything – that comes from under a pen of a judge is not only “law”, but “The Law of the Land”, to be obeyed without question, and that somehow the unlawful judicial lawmaking is, on the contrary, the way it should be, and everyone in this country “must” respect unlawful court orders made contrary to the U.S. Constitution and/or federal statutes as “law”.

And, unfortunately, prominent-name attorneys artfully manipulate the public in continuing with this dangerous illusion, that courts in this country are lawful lawMAKERS.

One of such dangerous examples that I came across recently is the now-dean of the Berkley Law School in California, Professor Erwin Chemerinsky.

Having disregarded his own conflict of interest, as a Dean of law schools that, no doubt, receives donations from large law firms representing employers that need cheap legal and illegal immigrant work force, and is a party against the federal government to make the President in a lawsuit to make him cancel his visa restrictions in order to benefit his law school and university financially, Erwin Chemerinsky recently filed an amicus brief with the U.S. District Court for the District of Arizona arguing that the recent presidential pardon of Joe Arpaio is unconstitutional.

This challenge to the pardon of Joe Arpaio by President Trump is a quintessential litmus test as to the rule of law in this country.

Should a legitimate exercise of presidential power as per the text of the U.S. Constitution, Article II, paragraph 2, be considered unlawful simply because it was done by a supposedly unpopular president in favor of an unpopular sheriff?

If it should, then we do not have the rule of law in this country.

I wrote in this blog about the criminal proceedings against Joe Arpaio and their stark illegitimacy, about jurisdictional defects in proceedings and screaming judicial bias of the Clinton-appointee judge that would make the blood of any criminal defense attorney, and of any member of the public knowing the law boil.

But, somehow, any violation of the law is good if that is against a person you do not like – because that is the sum and substance of public comments about Arpaio’s pardon.

President is bad, so his pardon is also bad.

Arpaio is bad, so to pardon him was bad – no matter what happened in his criminal proceedings, and if a judge issued a decision in those proceedings, it must be good, and President Trump should not have touched it with a pardon.

By the way, the U.S. Justice Department already moved todismiss Arpaio’s conviction as moot, over the resistance of the judge, so the prosecuting party does not want to continue to sentencing, cases should be closed and shut – if that would be any other criminal proceeding.

But, not here.

Here Dean Erwin Chemerinsky is throwing his heavy-weight name around in order to claim that the pardon was unconstitutional and to put the already dead criminal proceedings back on the docket – while making some outrageously incompetent claims that would result in an F in Criminal Law 101 and Constitutional Law 101 in Chemerinsky’s own law school, and on a bar exam.

A person who positions himself as an expert in constitutional law should have at least more self-respect than to make claims Chemerinsky is making, embarrassing himself in front of the legal community, his own students and the public – and putting into his law students an impression that the law does not matter when there is a political and financial goal to attain through the influence of courts.  And, by the way, Chemerinsky is arguing that the pardon is unconstitutional to the same judge whose decision the pardon affects – at the trial level.  Like – “Your Honor, see what that bad President did to your perfect order, declare that bad President’s Article II paragraph 2 presidential pardon authority unconstitutional NOW, what are you waiting for, he hurt your feelings so!”.

The claims of Professor Chemerinsky, through his two attorneys who both clerked for federal judges and should know better than to write such gibberish, can be seen in their full glory, here.

In view of Professor Chemerinsky’s influence on the legal community, courts and public opinion and the danger that his outrageous statements to the court present for civil rights in general, and criminal defendants’ rights in particular, I will analyze Professor Chemerinsky’sclaims, one by one, in separate blogs.

I am certainly not the only and not the first critic of Professor Chemerinsky's amicus brief regarding Arpaio's pardon, but, judging by the fairly bland criticism that I have read of the Chemerinsky's amicus brief, critics do not dare to go deep enough into the dangers of a celebrated supposed legal scholar going amok with a result-oriented attempt to influence federal judges with claims that are incompetent albeit pushed by a team of attorneys,


Larry A. Hammond (who boasts in his advertisement his involvement in "high profile criminal defense cases while demonstrating in the amicus brief a lack of knowledge of the most basic principles of criminal law)

and Josh Bendor, 

both of whom have a long history of federal judicial clerkships, which takes away any excuses that their deliberate manipulation of the court with incompetent claims is anything but deliberate.

Some of the main claims by Chemerinsky and his attorney team of former federal judicial law clerks that I am going to review in separate blogs are (I will provide a basis why these claims are not well grounded in law, fact or precedent in separate blogs):

• That proceedings against Joe Arpaio where the President granted his pardon were not criminal proceedings;
• That the notion of "criminal offense" does not equal a "misdemeanor" or a "felony";
• That federal courts must provide a remedy in each case where a public official violates people's constitutional rights;
• That there is no such thing as federal common law;
• That interpretation of Old English common law going back to the 13th century is not only a valid source for interpretation of the U.S. Constitutien, but should apparently take precedence over the text of the U.S. Constitution and its legislative history;
• that THIS presidential pardon (somehow apart from all others) is unconstitutional because it encroaches upon judicial independence (even though such a mode of "encroachment" is written into the text of the U.S. Constitution all judges, Sheriff Arpaio, President Trump, Dean Chemerinsky and his two attorneys have sworn to uphold).

Nevertheless, such supposedly "expert" legal blogs as Above the Law cited to the brief as if it is Gospel, and blasted - no, not Chemerinsky for incompetence and attempt to influence the court with his gibberish, no, of course, not - Trump again.

The use of presidential pardon is now unconstitutional, says Chemerinsky, seconded by Above the Law, for the main three reasons, here they are:

I will start posting analysis of each of these issues today.  Stay tuned.

The judicial bullying of criminal defense attorney #MarcusMumford after acquittal of his client continues - Chief Judge Michael Mosman took request for supporting evidence of his own motion "under advisement" and continues with his illegal prosecution

I regularly write on this blog about tricks courts devise to go after solo independent criminal and civil rights attorneys (and public defenders) for their utmost "sin" - representing their clients properly when the judge already made up his or her mind and considers such representation inappropriate.

Such persecution is usually handled by judges who are former prosecutors themselves, and who are bent to help the prosecution in some media-worthy pending cases.

That's what happened with attorney Marcus Mumford, I wrote about his case here, here and here.

His "sin" was that he demanded the U.S. Marshalls to show him the order of detention of his client when they detained him in a federal courtroom after his acquittal by the jury.

Instead, the U.S. Marshalls manhandled the attorney and tasered him.

On top of that, the U.S. Attorney's office (under the civil rights-loving President Obama) charged Marcus Mumford with a crime, which they later dropped.

But, the "problem" with Marcus Mumford remained that he continued to represent his client in the new federal criminal case where he was initially illegally detained.

And the presiding judge couldn't have it.

So, the judge tried to eliminate attorney Mumford - and help the prosecution - by issuing an "order to show cause" asking attorney Mumford why he shouldn't be sanctioned by having his pro hac vice permission (license for one case in that federal court) revoked.

And, just "coincidentally", the order to show cause was issued while attorney Mumford was on a vacation, and "coincidentally", while the order to show cause cited to the trial transcripts in a criminal case, those transcripts were not provided to attorney Mumford in order to defend himself, while the judge limited his time to answer.

So, attorney Mumford filed - instead of response that he could not possibly filed without having the transcripts - a memorandum asking for extension of time.

The "failures to follow the court orders" that attorney Mumford is charged with in the show cause order from the federal court in the State of Oregon, "coincidentally", comes from a criminal case which attorney Mumford WON, "causing" by his work a jury acquittal for his client.

That is not so different from a disciplinary complaint recently filed - and accepted for investigation and prosecution by the Florida Bar - of attorney Jose Baez who had the "audacity" to "cause" the jury acquittal of Casey Anthony in a highly publicized murder trial of a child.

And, several "sticky" questions arise.

First, according to the case Williams v Pennsylvania decided by the U.S. Supreme Court in 2016, a judge may not be at the same time an accuser and an adjudicator, and court decisions made under such circumstances are VOID (as in "null and void", as in being a "nullity", a "zero", like it never existed).  By the way, Williams v Pennsylvania is a civil case (a habeas corpus petition), same as proceedings for sanctions.

An sua sponte "order to show cause" is a MOTION made by the court itself (sua sponte).  When such a sua sponte motion by the court seeks to punish an attorney, it:

1) puts the judge who has brought the order to show cause in the position of an accuser, thus disqualifying the judge from presiding not only over the motion, but over further proceedings, as the judge demonstrated a bias against one of the attorneys;

2) if the judge does not disqualify himself, his decisions will be void under Williams v Pennsylvania.

Not that the presiding judge cares.

Not that attorney Mumford dared to raise that argument in his memorandum. 

There are interesting details about Chief Judge Mosman's sua sponte order to show cause against attorney Mumford.

3) There is no indication that Chief Judge Mosman was ever assigned to this case, as the docket, from its first day to this date, showed Judge Anna Brown as the assigned judge, and Chief Judge Mosman does not have a liberty to butt into cases over the head of assigned judges without orders of re-assignment:

The order to show cause, Docket # 2069, was issued by judge Mosman on April 12, 2017, more than 6 months after his client's acquittal - while attorney Mumford was on a vacation with his family, and had an expectation that he will never be bothered with anything concerning this case because of the acquittal and consequent loss of jurisdiction by that court.

The order to show cause is contained in just three (3) pages, with a requirement for Attorney Mumford to answer by May 4, 2017 - so attorney Mumford was given by Chief Judge Mosman just 22 days to

• read 549 pages and answer those accusations - while full transcripts of what was happening in those court proceedings were not provided to him, and thus there existed a clear possibility that the charges were plucked out of context;

• Attorney Mumford was still an attorney of record in an ongoing criminal case in federal court in Nevada for the same client who was acquitted by the jury in front of Judge Anna Brown in the U.S. District Court for the District of Oregon where sentencing of his client was still pending - so judge Mosman's order to show cause interfered with Attorney Mumford's work for his client, as attorney Mumford would be subject to "reciprocal" discipline in federal court in Nevada if Judge Brown imposes sanctions upon him in federal court in Oregon;

• since attorney Mumford's client was acquitted and thus "terminated" from the criminal case on November 4, 2016, the Oregon federal court lost jurisdiction over both Mr. Bundy and his attorney Marcus Mumford after that date, and an order to show cause dated more than half a year after the acquittal, April 12, 2017, is abjectly illegal. 

4) Since attorney Mumford's client was acquitted, there was nothing to revoke - attorney Mumford's pro hac vice admission in that court was OVER as of the date of acquittal on November 4, 2016.

See attorney Mumford's order of admission pro hac vice for representation of his client only.  That representation was over on the date of acquittal, November 4, 2016, more than 6 months before the order to show cause was filed by Judge Mosman:

5) Since attorney Mumford's client was acquitted and Judge Brown's court in Oregon lost jurisdiction on acquittal, Judge Brown was without power to make any rulings in favor of his further detention, and judge Mosman, who was never assigned to the case in the first place, could not assign himself AFTER THE ACQUITTAL and make sua sponte motions based on events after the acquittal and loss of jurisdiction by the court.

6) After the acquittal of attorney Mumford's client and loss of jurisdiction by the court over attorney Mumford and his client, any "motions" regarding future preclusion of attorney Mumford from future cases has no authority, as such a case must be brought not by the court, but by its disciplinary committee.  In this case, the court equates itself with a prosecutor, disciplinary committee in seeking a future preclusion from future cases 6 months after attorney Mumford's pro hac vice admission expired with acquittal of his client.

Yet, here is the order, in its full "glory":

Here is the memorandum of law of attorney Mumford, once again, where attorney Mumford, unfortunately, does not raise the issue of the court's total lack of jurisdiction to issue its sua sponte order - maybe, he will raise it later on when he files his response.

The post-acquittal sua sponte motion by Judge Mosman against attorney Mumford after the court lost jurisdiction over him produced these peculiar filings:

Note that the filing by attorney Mumford personally in a motion for sanctions aimed at him personally, 7 months after his client's acquittal and thus 7 months after loss of jurisdiction by the court over Ammon Bundy, Ammon Bundy continues to be named as the "filer" and continues to be named as a criminal Defendant.

Note that there are TWO judges operating in this case, a complete violation of federal court procedures: 

• Judge Anna Brown who continues to handle sentencing of the remaining defendant, and
• Chief Judge Mosman who is not even on the docket and who is acting in lieu of a disciplinary committee in trying to revoke a pro hac vice admission that ended 7 months ago and to preclude future pro hac vice admissions, which is a completely speculative action for which Chief Judge Mosman has no jurisdiction or standing

On May 8, 2017, the self-assigned post-acquittal sua sponte movant judge Mosman granted attorney Mumford an extension of time, but took "under advisement" the necessity of giving him proof (full trial transcripts) that Judge Mosman used to accuse attorney Mumford of misconduct.

There are no appeals from acquittals, and normally, these transcripts will not have to be produced.

But, because Chief Judge Mosman simply could not put to rest the court's grudge against attorney Mumford for "causing" an acquittal for his client in that court, a completely illegal bullying of the attorney continues, at the expense of federal taxpayers. 

Think of the cost of full trial transcripts in a multi-defendant federal criminal case - that's what the court, as a matter of due process, will have to produce for Attorney Mumford so that he could prepare his defense in this completely illegal persecution against him.

And, of course, Judge Mosman, the lookalike of SCOTUS judge Gorsuch, is a former career prosecutor - now helping out the U.S. Attorney's office in eliminating a federal criminal defense attorney who showed he is capable to win a criminal trial despite huge negative publicity against his client.  That is obviously the main purpose of Judge Mosman's motion, to help his former "brothers", the prosecutors, in total violation of his oath of office.

While I totally sympathize with attorney Mumford's plight and understand what is at stake for him and why he may be overly cautious in not bringing up certain glaring issues of judicial misconduct in this case, I think it is a wrong strategy to address the merits of the case without addressing the "elephant in the room" - the total illegality of such proceedings on many levels.


Chief Judge Mosman should be impeached for his abuse of power and his illegal actions.

Stay tuned.

Criticize judges now. The legal establishment now allows it. Kind of. Because there is the 1st Amendment out there. They know, they know. But they do not care, and lawyers laugh how adorable it is that they do not care.

There is such a thing in the Supreme Law of the Land of the United States of America called the 1st Amendment to the U.S. Constitution.

And it says, supposedly, that

And, since only Congress can make laws in regards to FEDERAL rights, universal for all citizens of the country, no state government can make such laws either.

Heard it?

I did, too.

Having heard that, I also have this:

That means that, since November 13, 2015 I cannot work BECAUSE I exercised by indigent client's due process and 1st Amendment rights, made motions to recuse a biased and corrupt judge, was sanctioned "for frivolous conduct" by that biased and corrupt judge - and was prohibited to work and earn a living, because of it, without a hearing.

And, according to law professor Margaret Tarkington, discipline of attorneys specifically FOR criticizing judges - as professor Tarkington politely put - "enjoys a recent resurgence".

Usually those who criticize judges in this country are immediately dismissed - first, by the courts, then, by the legal establishment whose livelihood depends (literally, through regulation of licenses) on the courts' whims, and then, by the public who blindly follow whatever the legal establishment and courts tells it, "because they know better" - as the so-called "disgruntled litigants".

In the so-called "Rooker-Feldman jurisprudence", a bar unlawfully created by federal courts to block civil rights litigation in federal court because federal issues "could" be raised before biased state courts - courts use an even better, more smacking, more vulgar word than the "legalese-termed" "disgruntled litigants".

"Losers".  That's what the U.S. Supreme Court Justice Ruth Bader Ginsburg, the trailblazer of civil rights, called people who preferred to litigate their federal claims (as the law allows them to do) in federal court:

"The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."

So, if you were prosecuted by a corrupt state court, and another corrupt state court denied appeal, and if you want to sue (as the U.S. Congress allowed you) for civil rights violations under the Civil Rights Act in federal court, the federal court will tell you - "'we have no jurisdiction", because you are a - LOSER!  Not that courts are allowed to change their jurisdiction.  Only the U.S. Congress has such authority, under Article I of the U.S. Constitution.

But courts still do that.

So, "losers" in a biased state court are not entitled to a legal remedy for violation of federal constitutional right provided to them by U.S. Congress. 

Because - they criticize state judges.

And, for that reason alone they are - how do those backyard bullies in middle school called it - LOSERS!


So, now we established that those who criticize judges are simply losers.

Even Ruth Ginsburg says so - if you complain about a "state court judgement", you are a loser.

So, why listen to losers?  To anything they are saying at all?  They are losers, after all, what good can they say?

By the way, when a lawyer surfaced on my blog with criticism of my criticism of judges and refused to reveal his identity and engage in a public online real-time video-debate, he actually claimed that the identity of the individual who makes a statement does not matter, the truth of the statement matters.

While accusing me of "chasing phantoms", "attacking the wrong targets", "getting confused" and "playing fast-and-loose with the law", and claiming, based on those conclusory allegations, without examples, that such alleged behavior on my behalf hurts my credibility, the patronizing male lawyer did not want to reveal who he is.

When I pointed out his patronizing, and conclusory, criticism from the bushes as lacking credibility, he exploded:

So, here a male attorney (or judge) needed the anonymity to be able to say the word "fuck" to a woman he never saw because she - legitimately - accused him of making unsubstantiated conclusory allegations and patronizing her.

The patronizing male lawyer Coyote Waits taught me, the misguided little woman, that his anonymity does not matter, the truth of his statements - whatever they are - is the same:

"Again, however, I will not debate you live and I will not shed my anonymity.  As a lawyer, I would think you would recognize that an argument should stand on its own." 

So, those who criticize judges are:

• "losers" - as Ruth Ginsburg transparently proclaimed in Exxon Mobil in 2005;
• attackers of the U.S. Constitution - as the President of the American Bar Association claimed in response to President Trump criticizing Judge Robart for his illegal decision;
• bigots - like Donald Trump was in criticizing Judge Curiel, even though he had a perfect right to do so, and did not even reach all problems with Judge Curiel presiding over his case; or
• idiots - as many of the news sources, and public in comments in social media, have branded President Donald Trump was in criticizing Judge Robart for making an unlawful decision, and then the 9th Circuit in making an unlawful decision

(in the 9th Circuit decision, quite likely, Ruth Ginsburg, and the Hawaii State University secretly participated - and the State of Hawaii, on behalf of Hawaii State University, is now the 1st state suing Trump for his 2nd Executive order on immigration, apparently after a consultation with Ruth Ginsburg who is not allowed to practice law and participate in consultations on a case, as a judge, and as an appellate judge on whose table this case may and likely will end - but who will stop her?)

I recently confirmed for myself the attitude toward not even criticism of judges by the legal establishment - simply asking a question.

I asked a question, on the Facebook page of the American Bar Association, what right did the family of Antonin Scalia have to own, control and distribute records related to Scalia's work as a judge (case-related notes and journals)?

The reaction was, immediately, the very same as with Coyote Waits:

(1) I was taught that I do not understand the law by a true guru in trial and appellate law

(by a foreclosure attorney who puts his religious faith - and faithfulness - on his professional profile; who, according to his own admission, has dreamed of becoming an attorney since 12 - dreamed, and dreamed

- and, after dreaming for so long, his dream has become true, and - voila! - after working for the U.S. Attorney's office he somehow left, interned in South Africa and then hit the rock bottom of attorney specialties and became the only associate in a 5-lawyer firm (3 partners, 1 "of counsel" and 1 associate - Lindquist), a foreclosure attorney

So, now his dream has come true and he can proudly cast people out of their homes without any litigation (as it happens in most judicial foreclosures, because people do not have money for an attorney and default), and when the majority of his clients, likely, do not have standing to sue - because of how mortgages are obtained and assigned in the U.S. (I often defended people in such cases and know this particular area of the law very well). 

Lindquist very obviously has to feed two young children of his own (as confirmed by his Facebook profile and his profile on his law firm's webpage), who is completely dependent on the judiciary, so he, of course, will not commit any missteps.

Yet, he had the audacity to undertake to teach me what litigation means, what documents are created in litigation and who those documents belong to. 

And, not to overdo it, he claims on his LinkedIn profile that he "enjoy[s] the human element of practicing law and am motivated by helping people resolve complex and stressful situations".  By working first as a prosecutor, and then as a foreclosure attorney.  Oh, well.

(2) I, and even my husband, were "Googled" and our "record" was found "illuminating" - because I asked a question about a judge!

That was the post:

The article, as I already wrote before, discusses that Scalia's family gave Scalia's "papers", including papers related to his work as a judge on the federal appellate court and in the U.S. Supreme Court (case-related notes and journals) to the Harvard Law Library, with the Scalia's family controlling who gets to get access to it, including a restriction until 2020 on access to court-related records, and a restriction until all presently living judges-participants in those cases will die off.

Here is my question:

Here are the comments:

I answered that notes of judges from court cases are not their own "private notes", moreover, that it is a "common practice" says nothing about legitimacy of such a practice.

Then came the backlash.

Note the tone.

I simply asked a question.

But, through that question, I implicitly criticized a judge.

And, attorney, or law student, whoever he is, David Berry, who boasts on Facebook about his legal education and even puts President Lincoln's picture as his Facebook profile picture, simply cannot have it.

Not knowing me, David Berry immediately concluded, from my question and two comments, that a judge does not own notes from a court case, that I "have no first clue of what s/he is talking about", and asks a counter-question, mockingly, whether the public owns the books Scalia has written, or letters to his friends and wife.

I answered that, while the public does not own the books, the judge did not have the right to write them while rejecting 99% of petitions coming his way, because he has no time (but has time for writing books):

And here comes the cherry on the cake: the next commentator Googled me AND my husband (whose name is not Frank, by the way, but, I understand, "Wendi Lynn" was fuming and in a hurry to post this one) - and found our background "illuminating".  Because I asked a question that criticized a judge by implication:

#AttorneyAaronLindquist was tagged on this one, and immediately "liked" it.  That was on March 7, 2017, a Tuesday, at 9:21 am - attorney Lindquist was supposed to be at work, either in his office or in court, enjoying "the human element of practicing law" and "helping people resolve complex and stressful situations" by stripping them of their homes.   

Something that is being offered in New York, for example, for less than flipping burgers

($50 is the current rate for attorneys appearing in foreclosure proceedings per appearance, for review of documents, judging by proposals that still come to my law office e-mail account despite an automatic reply for 2 years that it is closed - $50 for hours of rush review, note that the offer below is dated March 9, and the appearance is the next day, of a thick file of documents, usually with standing problems, legal research, travel to court, appearance in court, wait time, the wait may be several hours on top of that):

Apparently, on a Tuesday morning at 9:21 am attorney Lindquist had nothing to do other than discussing my own and my husband's background on Facebook, because I asked a question about a judge.

Now, let's say that the very same thing - the bullying and checking the background of a person (and husband of the person) who asked a question - would be happening at a press-conference, I would be the journalist (I am a citizen journalist, and I asked the question as such), and President Trump would be the one I am asking that question, and President Trump would say - "I've just Googled this journalist and her husband and my Google search was quite illuminating".

There would have been hell to pay in the media if the President would do something like that.

Yet, it is a routine occurrence in the "honorable" legal profession to bully people who raise concerns about judicial impropriety before the legal establishment - even if that is done implicitly, through a question.

The reaction spells out the attitude of the "honorable" profession loud and clear - DO NOT attempt to bite the hand that feeds us.

So, here goes the idea of "an argument standing on its own" - and there, there was not even an argument, a question needs to be answered on the merits - got lost upon attorneys-commentators on Scalia and his family treating court notes as their own property.

And all of the above, lady and gentlemen, was only a foreword, a preface, a precursor to - TADA! - a big change in the industry.

Today, on March the 13th of 2017, the New York Law Journal, a "scholarly", but rather, a media source of the legal establishment, published an article in which two authors say that Trump's criticism of a judge is actually:

• good;
• refreshing;
• democratic, and that
• judges need to EARN public trust - not demand and presume it, as they do now.

Wow.

Consider the phrase: "Abraham Lincoln, and before him Andrew Jackson, also had harsh words for the courts. Tough-minded presidents usually do" - after a recitation the "harsh words" that Presidents Roosevelt, and Obama had for judges.

Consider the last paragraph:

"Trump has shifted the burden of proof. If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name. Otherwise, jurists can expect even sharper criticism than Trump's."

And illustrated that judicial decisions are "politics by another name" by pointing out at statements of two judges:

Ruth Ginsburg:

 "He is a faker. He has no consistency about him. He says whatever comes into his head at the moment".

The article mentioned that Ginsburg later apologized for that particular blunder, but it did not mention that Ginsburg later practically retracted her apology by adding to her previous statement that

• she will leave to New Zealand if Trump is elected (she is still here, so that was a fake statement, she would never voluntarily shed her money and power and disappear away from the limelight), and, recently, that
• "we are not experiencing the best of times" in the U.S., not to mention
• her recent Hawaiian trip during work time in order, likely, to fix a court case against Donald Trump - a trip to the Hawaii State University School of Law employing as professors law clerks of one of the judges who, as part of the 9th Circuit panel, was deciding the case against Trump, while his chambers were "coincidentally" located within 7 miles from where Ginsburg was hosted - and the Hawaii Law School is currently stalling my Freedom of Information request asking for records as to who paid her bills and how much those bills amounted to, that would be a separate blog).

Yet, consider what the "revolutionary" New York Law Journal article said about another blubbering SCOTUS justice, Sonya Sotomayor (I added a link to the 2005 statement to the source):

"Consider the remarks of now-Justice Sonia Sotomayor in 2005.

'All of the legal defense funds out there, they're looking for people with court of appeals experience. Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know.'

Sotomayor drew knowing laughter from the audience because she exposed the hypocrisy woven into our judicial fabric. Judges are supposed to expound law, not make it. Yet, as she revealed, appellate judges make policy all the time. Supreme Court justices even more so.

Sotomayor views judges as having an expertise, a long-range vantage point, and a detachment that qualify them to wield extraordinary powers. By exploiting the law's inevitable uncertainties, judges in the Sotomayor camp have fashioned dubious "constitutional" rights to drive policy in their preferred directions."

The worst of her "offhand remark" in 2005 was that it was made to law students - people who she was teaching by her laughing comments as to what law and justice in the U.S. really is - NOTHING.   What matters is only the law that judges make, illegally, she knows, she knows, but they still do.  And the law students, and their professors, and attorneys who came to listen to her, there is no doubt that they were in that audience, too,  "knowingly laughed" - and that her "offhand remark" in 2005 did not prevent her from becoming a U.S. Supreme Court justice.

The "knowing laugh" part reminds me of what Professor Bogus has said about how brown-nosing the judiciary and endorsing, supporting and approving of judges' most asinine behavior, creates monsters:

In 2009, Sotomayor added to her arrogant "policy" remark in 2005 that decisions are made based on the judge's personal experience and ethnic background - that was here in-famous "Latina woman" remark.  That remark also did not prevent her from being confirmed for the U.S. Supreme Court.

So, given such a seal of approval, no matter what she blubbers, she kept blubbering.

In May of 2016 Sotomayor blubbered some more, now calling for lawyers to be forced into provision of free legal services to close the "justice gap" - created by attorney monopoly and attorney regulation BY courts.

In January of 2017, Sotomayor was part of the panel denying me, without review or explanation of reasoning (of course, I understand that I am not in Finland where people are entitled to reasoned court decisions, at least an explanation why the court considered it unnecessary to enforce their own recent precedents on point and not to enforce the U.S. Constitution) the petition for a writ of certiorari, without recusal of Sotomayor

despite the fact that her own statement (that same "forced labor" statement) was used as evidence in the petition, which required her disqualification, whether I asked for it or not.  I did not ask, but remember why I was suspended in the first place? For motions to recuse a judge. 

Here are excerpts from my certiorari petition that were specifically about the "justice gap", and Justice Sotomayor's comments about it - that would cause ANY honest justice to resign, but, of course, not Sotomayor (remember - " Because it is — court of appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know).

She knows, she knows, that what she is doing is wrong - but who will stop her?

"The so-called 'justice gap', the lack of skilled attorneys working for the poor in criminal, family and civil rights proceedings, has become a national crisis, to the point that this Court's Justice Sotomayor has publicly stated this year that she would support a mandatory pro bono work requirement as a condition of attorney licensing for all attorneys throughout this country (FN39 to Tony Maura, Sotomayor Urges Mandatory Pro Bono for All Lawyers. The National Law Journal, May 17, 2016).

New York State recognizes that it has a "justice gap" so bad that it bridges that gap with mandatory services of inexperienced (and unlicensed) law students (FN40 to 22 NYCRR 520.16(a):

If the justice gap in New York is so bad that New York mandates or encourages practice of law by unlicensed, inexperienced and unskilled service providers in order to bridge the justice gap for poor litigants, surely, New York must treasure those skilled attorneys who are already providing services to the poor, helping to bridge that justice gap.

Yet, instead, New York removes skilled attorneys who honestly do their jobs for their clients, just because they made motions to recuse a biased judge and were sanctioned by that judge (FN to Matter of Aretakis and Matter of Tatiana Neroni), and does it through disciplinary proceedings where New York courts apply collateral estoppel to a standard of proof artificially lowered to an unconstitutional level in order to allow disciplinary prosecutors to skip evidentiary hearings, without regard whether criticism of the judge was truthful".

*  *  *

I further said in the petition that Sotomayor participated in denying without an explanation or reasoning:

"On the one hand, New York recognizes that the justice gap in the state is so bad that New York mandates or encourages unlicensed, uneducated, inexperienced and unskilled service providers to provide legal services to the poor, in contravention to its own criminal laws and attorney licensing laws.  New York thus exposes indigent litigants to the danger of unskilled and dishonest providers who were never subjected to evaluation by character and fitness committees, which is exactly contrary to the declared reason of why attorney licensing was introduced in the first place - to protect consumers of legal services from unskilled and dishonest providers.

On the other hand, New York removes services of skilled attorneys who are already providing their services to the poor from the reach of those indigent litigants for unconstitutional reasons, disciplining attorneys not for doing a bad job for their clients, but for doing a good job.

Moreover, attorneys so targeted for unconstitutional discipline are, invariably, small-firm and solo criminal defense, family court and civil rights legal practitioners who work for the poor and who raise 'sensitive issues' of judicial misconduct in court, such as in attorney Aretakis' cases and in Petitioner's case.

Under these circumstances, removal of skilled attorneys from the reach of indigent consumers of legal services, specifically because they are skilled, and specifically because they skillfully and courageously argue 'sensitive' issues of governmental misconduct on their clients' behalf, while replacing them with unskilled, inexperienced and unlicensed providers, amounts to an unconstitutional unspoken policy that has the effect of blocking the poor from access to skilled legal services, thus widening the justice gap for the poor while New York pays lip service about its effort to bridge that same gap.

This year, this Court has struck in Whole Woman's Health v  Hellerstedt, 579 U.S. __ (2016) a government regulation of the medical profession which was beneficial as declared, but harmful in effect.  Harmful effect is exactly what occurs when attorney discipline is used in a way harmful to consumers.

Preventing the widening of the "justice gap" is at least as much, if not more, important as preventing the widening of "access to abortion gap".  Access to abortions only affect less than half of this country's population - women of reproductive age - while the justice gap affects the entire population."

So, I spoke about the justice gap, Justice Sotomayor's personally expressed concern about it, and the use of attorney discipline in the State of New York to widen it and to block poor litigants from skilled civil rights attorneys as a matter of policy.

And Sotomayor who made a personal pledge to fight to bridge that justice gap, participated in a decision denying, without an explanation, a petition for a writ of certiorari that could help fight that same justice gap, by preventing removal of skilled civil rights, criminal defense and family court attorneys from the reach of the poor.

Because she knows, she knows, who is going to do anything about it?  And who has the power to do anything about it?

The article in New York Law Journal now says that criticizing judges is actually a good thing.

And that judges, based on Sotomayor's and Ginsburg's statements, are politicians in black robes.

And that they should be subject to criticism, worse than President Trump's, if they fail to show through their decisions that their decisions are not just "politics by another name".

And that, if judges fail to show that, they are not entitled to either respect of deference from the public.

As revolutionary as it may sound, from such an edition as New York Law Journal, the article still fails on one important issue.

It is not President Trump, or presidents of the United States criticizing judges before him, who "allowed" or "open the gates" of criticism against judges.

What allows such criticism and make it healthy and proper is the U.S. Constitution and its 1st Amendment - that same U.S. Constitution that every judge in this country, including Ginsburg and Sotomayor, is sworn to protect.

And not "I know, I know" protect, but really protect.

And people, instead of "knowingly laughing" at the adorable ways judges violate the U.S. Constitution, their own oaths of office and people's rights, should demand action from their representatives in legislatures to introduce strict statutes giving people real remedies in dealing with judicial misconduct.

Without such remedies, they will continue to break the law while arrogantly laughing at us.

We the People, not the judges, are the popular sovereign in this country.

The U.S. Supreme Court has confirmed that in the infamous Dred Scott case (I wrote about it in my blog before).

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives."

We dictate what laws exist in this country, not judges.

And we know, we know, that what judges do in refusing to enforce the U.S. Constitution and refusing to give victims of constitutional violations real remedies at law is unlawful, unlawful.

And unconstitutional, unconstitutional.

And they should be held accountable for that.  Really. 

We the People are not laughing.