THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
Sunday, November 4, 2018
The nation will vote who to elect and vest with a tremendous judicial power just the day after tomorrow.
And, the public has a right to know not only how competent and honest a judicial candidate is, but also how healthy that candidate is.
And, that particular issue is usually kept from voters.
Usually, judicial candidates are attorneys.
Usually, other attorneys know of their colleagues' health problems.
But, guess what, judiciary invented gag rules for attorneys to prevent them from informing voters of any information that may lead voters to vote against a certain candidate, so don't hope for attorneys doing anything other than singing praises and giving money to judicial election campaigns. That is allowed by the judiciary as "ethical".
As to appointed judges, the situation is even worse.
With elected judges, at least non-attorneys who know of judicial candidates health problems can speak out and inform voters in time to prevent an individual who has no energy or whose disability may cause problems with judgments, to serve as a judge.
With appointed judgeships, this safety valve is lacking.
For example, a suspended (previously appointed, not elected) Westchester County Judge Elizabeth Shollenberger sued the State of New York claiming disability discrimination against her in court.
Her ailments included not only obesity - which is easily accommodated, and should not be a problem if the judge has enough energy to handle the proceedings - but also "digestive problems" that required her to have frequent use of the restroom, to the point that she reportedly had # 1 and # 2 accidents in the courtroom and once had to pee into a waste basket in court.
I wrote on this blog many times that judges should - as well as other employees in important decision-making positions - routinely undertake drug tests and have results shown to the public, their employer.
Yet, we learn about judges drug and alcohol addictions only when they are arrested for DWIs, often repeatedly, and often escape with their license and pension unscathed, and often remain on the bench with a slap on the wrist, continuing to decide cases possibly under drug and/or alcohol influence.
There is also a problem of old age.
In New York, by State Constitution, a judge is considered too old to serve after 70. Of course, there is an unconstitutional court-devised loophole by which a judge may still "serve" after 70 for 3 consecutive 2-year terms if the judge provides to the Governor a certification that he is physically and mentally healthy to do that. My FOIL requests to the New York State Governor's office as to such certifications were always stalled, by different Governors.
The case of SCOTUS Justice Sandra Day O'Connor
Born on March 26, 1930.
Appointed to the court in 1981 by President Ronald Reagan, at the age of 51, the first woman on the U.S. Supreme Court.
That victory of feminism is, of course, dampened a little when we consider that out of all women lawyers and judges in the United States President Ronald Reagan "happened" to "pick" as a candidate of the first woman judge on that court, quite "coincindentally", of course, the then-Chief Justice William Rehnquist former lover who turned down his marriage proposal and married another.
Appointment of the Chief Justice's former lover as the "first woman on the U.S. Supreme Court" had a distinct bad smell.
Yet, she was confirmed unanimously by the Senate.
And, serving on the court next to her former lover and obviously at his suggestion, was too much of an enticement for Sandra Day O'Connor to turn down.
It is interesting that, when that same Chief Justice Reihnquist was at his death's door - he reportedly suffered from thyroid cancer since October 2004 and died in September of 2005, Justice O'Connor announced her retirement, in July of 2005.
During Rehnquist's suffering from thyroid cancer, no effort was undertaken to replace him on the court - even though "suffering" from cancer, and ultimately, dying from cancer, may mean pain, weakness and total inability to review at least 8,000 petitions filed with the court per year, as well administrative duties of the Chief Justice.
As to Justice O'Connor, apparently, the media that is bold to the point of insulting as to some public officials, somehow lost its moral compass as to Rehnquist - O'Connor affair on the court legitimized, financed and empowered by President Reagan who obliged the Chief Justice by giving him an opportunity to work side by side with his former lover and would-be spouse.
The media started to comment on the affair only after O'Connor, or her representatives, announced her departure from public life due to worsening dementia, and only to comment on that affair as something very "sweet".
And, the bold media source CNN did not pose a question that O'Connor and Rehnquist lied to the public, to the FBI during the routine investigation of the judicial candidate to the U.S. Supreme Court and to the Senate during confirmation hearings, by not disclosing that their relationship was more than just "dating" and "going to a few movies together".
Rehnquist never disclosed that, and O'Connor disclosed it only after Rehnquist died and O'Connor herself resigned from the court.
What is it?
Reihnquiest protected O'Connor and, without that protection she did not feel safe remaining on the court?
Her dementia was starting earlier than it is now announced? She resigned, after all, at 76, well into the age when dementia can have its onset.
So, do we, the public, have a right to know how bad was Chief Justice Rehnquist suffering from thyroid cancer in the last year of his life, whether he had enough energy and judgment left in him to decide death penalty and important civil rights cases, at least 8000 of them in any given year?
When did Justice O'Connor first had the onset of dementia and whether and how it affected her work?
Justices do not like their medical records being delved into, even the President of the United States supposedly needs their consent to look at their medical records.
And, they do not like being "nudged", told that maybe, due to their age and disabilities, it is time to retire.
The present-day Chief Justice John Roberts refuses to reveal health records of U.S. Supreme Court Justices.
Scholars point out that, had the public known about Antonin Scalia's health ailments, he could have been forced into retirement.
Revealing his health records now, when he is dead and not protected by privacy, could reveal how many cases should be reviewed anew, due to potential problems with one of the judge's health, energy and judgment.
After all, we expect the judge and not his pool of young law clerks, fresh from law school, lacking life experience, never nominated by the President, never vetted by the FBI and never confirmed by the Senate, to author judicial opinions of the U.S. Supreme Court - which is what is most likely happening, given the math of how many days per year justices work, how many cases they decide per year and how many additional engagements, like giving lecturers, traveling around the country on attorneys' dime and "writing" books (or having them ghost-written for them) and then going on public tours to advertise and sell those books - SCOTUS justices engage in.
The physical impossibility, under the circumstances for Justices of SCOTUS to review and decide by themselves all petitions filed with the court every year, is only compounded with their possible inability to do that due to health problems, disabilities affecting their energy levels and clouding their judgment.
And now, we have the judge who is proclaimed by many a "hero", a "savior of democracy" for remaining on the bench at the ripe old age of 85, Justice Ruth Bader Ginsburg, born March 15, 1933.
There exists a legal concept known as "the best evidence rule".
Nothing other than the very best evidence can persuade the court (and the public) as to certain things.
You cannot say in court - I have a title to this house.
The best evidence is the actual original deed.
If you do not have it, or cannot prove that you have it through alternative means - like a certified copy from a recording office - you are out of luck. Your word is not "the best evidence" of a deed to a house.
Same with health.
When Ginsburg fell asleep at the State of the Union address (Obama's, by the way) in 2015 - she claimed she was drunk. Which is also a matter of public concern, but Ginsburg was not taken off the bench at that point.
For several years, Ginsburg and those who support and promote her posted articles and videos of her supposed "rigorous training".
She claimed in the media that she has never missed a day of court - despite TWO cancer surgeries (in 1999 and in 2009), with subsequent chemo treatments. That is an obvious lie. It is simply physically not possible.
So - how many days and how many decisions presented as made by Ruth Ginsburg were written by her clerks or by the court without her participation, in how many decisions her vote was falsified?
She miraculously recovered from pancreatic cancer in 2009 while most people are not even get surgeries like that and die, many much younger than Ginsburg.
Did Ginsburg jump the line for an organ transplant?
Shouldn't it be a matter of public concern?
Shouldn't the public be allowed to see her medical records?
Shouldn't she (as well as other judges) show the list of her medications to the public?
Medications mandatory for organ recipients would have been prominently displayed there, potentially raising an issue, if that happened, regarding line-jumping by a powerful public official for public debate, and whether it was appropriate to give an organ to a 76 year old who already had cancer before.
Medications prodding her into a semi-live state when she gives videotaped interviews?
Also, if Ginsburg did receive a pancreas in 2009, she must be screened for cancer now, and must take medication against rejection of the transplanted organ, which can affect her ability and judgment.
Her law clerks have a code of silence, and their position is too lucrative - law firms are snatching SCOTUS judges law clerks offering them exorbitant salaries to have a chance to foot the door and get their clients' cases fit into the 0,1% of the cases picked by the U.S. Supreme Court - by having them call their former employers and ask to for review.
It is common knowledge that former law clerks of the U.S. Supreme Court "coincidentally" are the same people who most often argue cases in front of that court - which means that the court most often picks for review cases argued by their former law clerks.
So, law clerks will not leak this information, but the public should not be held in the dark and held for idiots proclaiming and led to believe that a 85-year-old twice-operated for cancer judge who was caught sleeping at a public event 3 years ago and can hardly keep her head straight when talking to people is somehow vigorous enough to decide 8,000 or more cases a year, including death penalty cases.
We the People are employers of Ruth Ginsburg, and of other judges on the U.S. Supreme Court and on other courts in the country.
We have a right to know whether those who hold in their hands our lives and destinies have not only enough competence and integrity, but also enough energy and sound judgment to do their jobs.
The best evidence of Ruth Ginsburgs and other judges' health and fitness for the bench healthwise are their health records.
They must be public.
The curious case of blocking access to court for victims of vaccine injuries - in order to ensure mass vaccination in the United States
I think, in this connection, it is important to dot the "I"s and cross the "t"s.
Therefore, in this blog I publish the entire text (without dissent) of the opinion of the U.S. Supreme Court from 2011 showing how all victims of vaccines - who were injured or died after application of various vaccines in the United States - were barred from access to court to ensure mass vaccination in the United States.
Here is the link to the case.
What victims and families were allowed to do is to file a claim not in state court, but in a special federal "court" funded by vaccine manufacturers, and not in front of a jury, and not even in front of a judge, but in front of a "special master" paid by those same vaccine manufacturers.
Access to court is a fundamental right.
Yet, to ensure mass vaccination in the U.S. with supposedly safe vaccines, people who allege injuries from negligent design or manufacturing of these vaccines, injuries that result in either permanent disabilities or deaths, such people are barred by FEDERAL government from access to STATE courts - in violation of 1st, 10th and 14th Amendment.
So, you can sue if you are injured after ingesting aspirin, but not after vaccine is administered.
And, if you do not vaccinate your child - while knowing that if your child is injured, recovery from the manufacturer is forbidden by "law" - you may be forced to do so by CPS and courts. Big choices you have, right?
Here is the full decision.
I will provide a full analysis of constitutionality of the decision, and of the federal statute it reviewed, in a separate blog article.
Meanwhile, you can read the official government information about the flu vaccine on the government portal The Daily Med.
In plain English, the vaccine is not approved for use for children under the age of 4.
And, for children 4 to 17, there is no proof that the vaccine actually helps prevent the disease.
"5 WARNINGS AND PRECAUTIONS
562 U. S. ____ (2011)
562 U. S. ____ (2011)
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA in 1986. The Act establishes a no-fault compensation program “designed to work faster and with greater ease than the civil tort system.” Shalala v. Whitecotton, 514 U. S. 268, 269 (1995). A person injured by a vaccine, or his legal guardian, may file a petition for compensation in the United States Court of Federal Claims, naming the Secretary of Health and Human Services as the respondent.[Footnote 13] A special master then makes an informal adjudication of the petition within (except for two limited exceptions) 240 days.[Footnote 14] The Court of Federal Claims must review objections to the special master’s decision and enter final judgment under a similarly tight statutory deadline.[Footnote 15] At that point, a claimant has two options: to accept the court’s judgment and forgo a traditional tort suit for damages, or to reject the judgment and seek tort relief from the vaccine manufacturer.[Footnote 16] Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table, which lists the vaccines covered under the Act; describes each vaccine’s compensable, adverse side effects; and indicates how soon after vaccination those side effects should first manifest themselves.[Footnote 17] Claimants who show that a listed injury first manifested itself at the appropriate time are prima facie entitled to compensation.[Footnote 18] No showing of causation is necessary; the Secretary bears the burden of disproving causation.[Footnote 19] A claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation.[Footnote 20] Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or designed.
Successful claimants receive compensation for medical, rehabilitation, counseling, special education, and vocational training expenses; diminished earning capacity; pain and suffering; and $250,000 for vaccine-related deaths.[Footnote 21] Attorney’s fees are provided, not only for successful cases, but even for unsuccessful claims that are not frivolous.[Footnote 22] These awards are paid out of a fund created by an excise tax on each vaccine dose.[Footnote 23]
The quid pro quo for this, designed to stabilize the vaccine market, was the provision of significant tort-liability protections for vaccine manufacturers. The Act requires claimants to seek relief through the compensation program before filing suit for more than $1,000.[Footnote 24] Manufacturers are generally immunized from liability for failure to warn if they have complied with all regulatory requirements (including but not limited to warning requirements) and have given the warning either to the claimant or the claimant’s physician.[Footnote 25] They are immunized from liability for punitive damages absent failure to comply with regulatory requirements, “fraud,” “intentional and wrongful withholding of information,” or other “criminal or illegal activity.”[Footnote 26] And most relevant to the present case, the Act expressly eliminates liability for a vaccine’s unavoidable, adverse side effects:
Wyeth removed the suit to the United States District Court for the Eastern District of Pennsylvania, which granted Wyeth summary judgment on the strict-liability and negligence design-defect claims, holding that the Pennsylvania law providing those causes of action was preempted by 42 U. S. C. §300aa–22(b)(1).[Footnote 32] The United States Court of Appeals for the Third Circuit affirmed.[Footnote 33] We granted certiorari. 559 U. S. ___ (2010).
A further textual indication leads to the same conclusion. Products-liability law establishes a classic and well known triumvirate of grounds for liability: defective manufacture, inadequate directions or warnings, and defective design.[Footnote 36] If all three were intended to be preserved, it would be strange to mention specifically only two, and leave the third to implication. It would have been much easier (and much more natural) to provide that manufacturers would be liable for “defective manufacture, defective directions or warning, and defective design.” It seems that the statute fails to mention design-defect liability “by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U. S. 149, 168 (2003). Expressio unius, exclusio alterius.
The textual problems with petitioners’ interpretation do not end there. The phrase “even though” in the clause “even though the vaccine was properly prepared and [labeled]” is meant to signal the unexpected: unavoidable side effects persist despite best manufacturing and labeling practices.[Footnote 43] But petitioners’ reading eliminates any opposition between the “even though” clause—called a concessive subordinate clause by grammarians—and the word “unavoidable.”[Footnote 44] Their reading makes preemption turn equally on unavoidability, proper preparation, and proper labeling. Thus, the dissent twice refers to the requirements of proper preparation and proper labeling as “two additional prerequisites” for preemption independent of unavoidability.[Footnote 45] The primary textual justification for the dissent’s position depends on that independence.[Footnote 46] But linking independent ideas is the job of a coordinating junction like “and,” not a subordinating junction like “even though.”[Footnote 47]
Petitioners and the dissent contend that the interpretation we propose would render part of §300aa–22(b)(1) superfluous: Congress could have more tersely and more clearly preempted design-defect claims by barring liability “if . . . the vaccine was properly prepared and was accompanied by proper directions and warnings.” The intervening passage (“the injury or death resulted from side effects that were unavoidable even though”) is unnecessary. True enough. But the rule against giving a portion of text an interpretation which renders it superfluous does not prescribe that a passage which could have been more terse does not mean what it says. The rule applies only if verbosity and prolixity can be eliminated by giving the offending passage, or the remainder of the text, a competing interpretation. That is not the case here.[Footnote 48] To be sure, petitioners’ and the dissent’s interpretation gives independent meaning to the intervening passage (the supposed meaning of comment k); but it does so only at the expense of rendering the remainder of the provision superfluous. Since a vaccine is not “quite incapable of being made safer for [its] intended use” if manufacturing defects could have been eliminated or better warnings provided, the entire “even though” clause is a useless appendage.[Footnote 49] It would suffice to say “if the injury or death resulted from side effects that were unavoidable”—full stop.
The mandates contained in the Act lead to the same conclusion. Design-defect torts, broadly speaking, have two beneficial effects: (1) prompting the development of improved designs, and (2) providing compensation for inflicted injuries. The NCVIA provides other means for achieving both effects. We have already discussed the Act’s generous compensation scheme. And the Act provides many means of improving vaccine design. It directs the Secretary of Health and Human Services to promote “the development of childhood vaccines that result in fewer and less serious adverse reactions.”[Footnote 57] It establishes a National Vaccine Program, whose Director is “to achieve optimal prevention of human infectious diseases … and to achieve optimal prevention against adverse reactions.”[Footnote 58] The Program is to set priorities for federal vaccine research, and to coordinate federal vaccine safety and efficacy testing.[Footnote 59] The Act requires vaccine manufacturers and health-care providers to report adverse side effects,[Footnote 60] and provides for monitoring of vaccine safety through a collaboration with eight managed-care organizations.[Footnote 61] And of course whenever the FDA concludes that a vaccine is unsafe, it may revoke the license.[Footnote 62]
These provisions for federal agency improvement of vaccine design, and for federally prescribed compensation, once again suggest that §300aa–22(b)(1)’s silence regarding design-defect liability was not inadvertent. It instead reflects a sensible choice to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.[Footnote 63]
And finally, the Act’s structural quid pro quo leads to the same conclusion: The vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries;[Footnote 64] in exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.[Footnote 65] But design-defect allegations are the most speculative and difficult type of products liability claim to litigate. Taxing vaccine manufacturers’ product to fund the compensation program, while leaving their liability for design defect virtually unaltered, would hardly coax manufacturers back into the market.
The dissent believes the Act’s mandates are irrelevant because they do not spur innovation in precisely the same way as state-law tort systems.[Footnote 66] That is a novel suggestion. Although we previously have expressed doubt that Congress would quietly preempt product-liability claims without providing a federal substitute, see Medtronic, Inc. v. Lohr, 518 U. S. 470, 486–488 (1996) (plurality opinion), we have never suggested we would be skeptical of preemption unless the congressional substitute operated like the tort system. We decline to adopt that stance today. The dissent’s belief that the FDA and the National Vaccine Program cannot alone spur adequate vaccine innovation is probably questionable, but surely beside the point.
The dissent buries another unfavorable piece of legislative history. Because the Report believes that §300aa–22(b)(1) should incorporate “the principle in Comment K” and because the Act provides a generous no-fault compensation scheme, the Report counsels injured parties who cannot prove a manufacturing or labeling defect to “pursue recompense in the compensation system, not the tort system.”[Footnote 71] That counsel echoes our interpretation of §300aa–22(b)(1).
Not to worry, the dissent retorts, a Committee Report by a later Congress “authoritative[ly]” vindicates its interpretation.[Footnote 72] Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation. See Jones v. United States, 526 U. S. 227, 238 (1999); United States v. Mine Workers, 330 U. S. 258, 281–282 (1947). Real (pre-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it into law. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005). But post-enactment legislative history by definition “could have had no effect on the congressional vote,” District of Columbia v. Heller, 554 U. S. 570, 605 (2008).
It does not matter that §300aa–22(b)(1) did not take effect until the later Congress passed the excise tax that funds the compensation scheme,[Footnote 73] and that the supposedly dispositive Committee Report is attached to that funding legislation.[Footnote 74] Those who voted on the relevant statutory language were not necessarily the same persons who crafted the statements in the later Committee Report; or if they were did not necessarily have the same views at that earlier time; and no one voting at that earlier time could possibly have been informed by those later statements. Permitting the legislative history of subsequent funding legislation to alter the meaning of a statute would set a dangerous precedent. Many provisions of federal law depend on appropriations or include sunset provisions;[Footnote 75] they cannot be made the device for unenacted statutory revision.
That brings us to the second flaw in the dissent’s syllogism: Comment k did not have a “commonly understood meaning”[Footnote 76] in the mid-1980’s. Some courts thought it required a case-specific showing that a product was “unavoidably unsafe”; many others thought it categorically exempted certain types of products from strict liability.[Footnote 77] When “all (or nearly all) of the” relevant judicial decisions have given a term or concept a consistent judicial gloss, we presume Congress intended the term or concept to have that meaning when it incorporated it into a later-enacted statute. Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 5). The consistent gloss represents the public understanding of the term. We cannot make the same assumption when widespread disagreement exists among the lower courts. We must make do with giving the term its most plausible meaning using the traditional tools of statutory interpretation. That is what we have done today.