Law & Judicial Elections

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Senate Judiciary Committee rejects Bush nominee. "A divided Senate Judiciary Committee on Thursday handed President Bush his second defeat of a judicial nominee by rejecting his bid to put Texas Supreme Court Justice Priscilla Owen on the 5th U.S. Circuit Court of Appeals...." The vote was 10-9 -- i.e., along party lines. More (Yahoo 09.05.2002). Whatever Ms. Owens' "objective" merits are, if such a thing may be determined, this does not bother me. During the 2000 campaign, as was his right, Mr. Bush made judicial selection a political issue, saying he intended to appoint as judges people in the mold of Justice Scalia, one of the conservative ideologues on the Supreme Court. He should not be surprised that Senators who don't want such people as policy-making judges vote against them. Our system contemplates that when there is divided government, there will be such political give-and-take, such power struggles. President Clinton might well have made different appointments to the Supreme Court if the Senate had not been controlled by Republicans. The "game's" rules work both ways. The rules that both empowered and restricted Clinton, empower and restrict Bush. The rules are not new. Judicial selection by chief executives, on both the federal and state levels, has always been political. Here in Minnesota, Democrat governors (like Perpich) typically and shamelessly have appointed mostly or only Democrat lawyers as judges, some competent, some perhaps not; and Republicans (like Carlson) typically and shamelessly have appointed mostly or only Republicans, some competent, some perhaps not. Later, of course, some judges who were appointed this way may pretend -- even convince themselves -- that their selection was the governmental equivalent of a virgin birth. Or they may claim, with straight faces, that they were selected solely "on merit." All of which I find amusing. Astonishingly, not just amusingly, some of these politically-appointed judges, exhibiting the ultimate chutzpah, even have tried to restrict the voters, the ultimate selectors here in Minnesota, from the same freedom to be partisan in their selections as the governors have been in theirs. Irony of ironies, the conservative ideologues on the Supreme Court turn out to be defenders of this freedom of the voters. For this, I, for one, am thankful. (09.06.2002)

Annals of judicial selection. "[Texas Gov.] Perry's campaign calls it coincidence, but his opponent's camp says there's something dubious about the fact that a Houston lawyer lent support to the governor's recent bombshell political ad [accusing his opponent of links to drug dealers and money-launderers] the same day Perry's appointment secretary interviewed the lawyer's wife[, a judge, in connection with her bid for a judicial promotion]...." More (Lubbock Avalanche-Journal 08.04.2002). The answer, you say, to the problem of "politics" in judicial selection by governors is not direct election of judges but "judicial commissions." But that just transfers the "politics" of selection to the commission members. Do you think they're political eunuchs? No, most of them in most states are part of the power elite that seems to run everything, even judicial elections, at least as practiced. Look closely at the "finalists" selected by these commissions & more often than not you'll find that at least one of them is a best friend of one of the commission members or croney of the governor (governors, you know, have ways of ensuring that their cronies are selected as finalists). No, my friends, deciding what method of judicial selection is "best" all boils down to whether you want the political selection to be done by one politician (the governor, who generally will pick cronies), by several politicians (the governor picking from the list of "best qualified" -- best friends and cronies -- given him by the members of the power elite who generally make up the commissions), or by the voters (who are not dumb, as the members of the power elite seem to think they are). The drafters of our state constitution here in Minnesota decided that direct election of judges is the only way to keep the appointment of judges out of the hands of the elite and to keep judges accountable to the people and not just to lawyers. See, e.g., Caleb Nelson, A Re-evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, American Journal of Legal History (April 1993) (via PBS). I think they made a wise decision.

Who is God endorsing this year? From Athens (Georgia) Banner-Herald 07.17.2002: "A pastors' and ministers' forum for candidates for Western Judicial Circuit Superior Court judge will be hosted by East Friendship Baptist Church, 480 Arch St., at 7 p.m. tonight...." More. Ideally, I think, preachers, political parties, politicians, political action committees, big law firms & bar associations would stay out of judicial election campaigns in states like Minnesota, keeping their dollars and their recommendations to themselves. Ideally, judges who retire would not resign midterm, thereby in a sense arguably subverting our state constitution by creating a vacancy to be filled initially by gubernatorial appointment rather than by the voters. Ideally, every two years at election time, as many good lawyers would apply to the constitutional selectors of judges, the voters, as apply to the governor for appointment when a vacancy occurs as a result of a midterm resignation. Ideally, when governors appoint judges, they would pick the best people. Ideally, the candidates in judicial elections wouldn't accept contributions from anyone. Ideally, the press would provide fair coverage to these campaigns. But, alas, we don't live in an ideal world, and so: a) God & Co. (the preachers, political parties, politicians, political action committees, big law firms & bar associations) are involved; b) judges typically resign midterm, thereby leaving the initial selection to governors; c) many good lawyers who would be more than happy to serve as judges (at current salaries) are afraid of the consequences of challenging sitting judges; d) when governors appoint judges, they usually appoint people from their own party & often pick political cronies; e) sitting judges' campaigns are financed primarily by lawyers; and f) much of the press either doesn't provide any coverage or reflexively slants the coverage of judicial campaigns in favor of the sitting judges. (07.18.2002)

The Minnesota judicial elections case as harbinger. "Opponents of the newly enacted campaign finance law are savoring attorney Jim Bopp's recent Supreme Court victory, believing it may be a harbinger of how the High Court will rule when it ultimately considers the constitutionality of new restrictions on the financing of federal elections...." Campaign Reform Foes Cheered by Minnesota Case by Amy Keller in Roll Call (07.11.2002).

Walt Whitman on Minnesota Supreme Court's foray into censorship. Walt Whitman (1819-1892) wrote: "[C]ensorship is always ignorant, always bad: whether the censor is a man of virtue or a hypocrite seems to make no difference....Under any responsible social order decency will always take care of itself." I think he would agree that censorship by judges -- whether they be men and women of virtue or hypocrites -- is also bad. By an admittedly narrow margin of 5-4, the U.S. Supreme Court has now finally determined that the Minnesota Supreme Court's policy restricting the speech of judicial candidates violates the candidates' right of free speech under the First Amendment to the U.S. Constitution and therefore constitutes impermissible censorship. See, Republican Party of Minnesota v. White, in which, in my opinion, Justice Scalia makes mincemeat of the arguments advanced in support of the Minnesota court's censorious policy. The Minnesota court ought to apologize to the people of Minnesota. Instead, it promptly issued a sanctimonious and presumably-"canned" statement to the effect that principles of impartiality and integrity and competence of judges "are the very life-blood of the public's trust and confidence in the judiciary."

I find it interesting that the court spoke of the public's trust and confidence in the judiciary. That's important, of course, but the problem with the Minnesota court's foray into censorship is that it betrays a lack of trust and confidence on the Minnesota court's part in the ability of the public -- the voting public -- to choose good candidates rather than bad candidates as judges. It also betrays a lack of trust and confidence in attorneys who, in good faith, step forward and give the voters a choice. The underlying premises of our Minnesota Constitution's provision providing direct election of judges are a) that good attorneys -- there still are a few, you know -- will step forward and give the voters a choice, and b) that the voters -- who, after all, are sovereign -- are capable of separating the wheat from the chaff.

The stereotype for years has been that it is the "liberals" who are the great defenders of popular sovereignty and free speech. But, as Eugene Volokh, the First Amendment scholar at UCLA Law School points out in his analysis in The National Review on 06.28 of Republican Party of Minnesota v. White, in a significant number of recent instances, it has been the so-called "conservatives" who have been the defenders of freedom and popular sovereignty. In his words:

[I]n free speech and in education, popular libertarianism strikes me as the best idea -- not because people's choices, under conditions of broad liberty, always yield good results, but because they generally yield better results than elite management does. In the 1960s and 1970s, it was liberals who were populist libertarians on free-speech issues (and sometimes education issues), and the conservatives who opted for elite management. That's still true in some situations, but increasingly the sides have flipped. Many conservatives seem to have learned the lesson of freedom and of trust in the public. Many liberals, unfortunately, seem to have forgotten it.

The leftist editors of our "great" Minneapolis Star-Tribune rather obviously have forgotten the lesson of trust in the public. In a knee-jerk editorial on 06.28 titled, in part, "Change Judicial Election Law," they urge a change in the state constitution to take away from the voters the right to directly elect judges and they urge one of two alternatives: either a) appointment of judges by the governor under the so-called Missouri Plan, which allows voters to remove an appointee after a period of time, a plan that is the favorite of political science professors who don't trust voters to elect judges, or b) lifetime appointment by the governor, which might be labeled "the Massachusetts way." The response, which betrays the elitism of which Mr. Volokh speaks, was utterly predictable, given that over the years the paper appears, to me at least, to have allowed its editorial preferences influence its reportorial coverage, or lack thereof, of judicial elections.

I assume you know the story of Chicken Little. As Chicken Little was walking under an oak tree one day, an acorn fell and hit her on her head. "Oh, my God! The sky is falling!" she said. Sadly but predictably, the response from the Strib, as well as that from some other members of the local judicial-media-bar complex, reminds some of us of Chicken Little's response to getting hit on the head with an acorn. My response to them is this:

a) "[C]ensorship is always ignorant, always bad."

b) The sky is not falling.

c) There are very good reasons, still valid, for direct election of judges. See, e.g., Caleb Nelson, A Re-evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, American Journal of Legal History (April 1993) (via PBS).

d) Trust the voters, not the elitists. Minnesota has the best voters in the country. Only twice in fifty years have they directly elevated a lawyer to the state supreme court -- when they elected C. Donald Peterson in 1966, and when they elected Alan Page more recently. In those fifty years, governors have made most of the initial appointments, both to the supreme court and the other courts. The vast majority of the appointments have been "political" appointments. Many of them have been good appointments, not a few have been bad ones.When I rank the many justices with whom I worked as a trusted aide to the court for over 28 of those 50 years, I place both of them, Peterson and Page, in the top bracket. While I have a lover's quarrel with many of the policies and decisions of our current supreme court, I also can tell "a natural" when I see one, and Alan Page is a natural judge. He was, as I said, appointed by the voters. So I ask, "Why doesn't the Star-Tribune trust the voters?" (06.30.2002)

BurtLaw Quote. "More than all else I enjoy the sight of rebellion --of men who stand aside from parties...refuse to be labelled...the vast floating vote, ready to nip things in season, to cast their weight where most needed, at critical moments, with no formal pledge or party alliance." Walt Whitman (1819-1892).

BurtLaw Quote. "The artist, however faithful to his personal vision of reality, becomes the last champion of the individual mind and sensibility against an intrusive society and an officious state. The great artist is thus a solitary figure. He has, as [Robert] Frost said, 'a lover's quarrel with the world.' In pursuing his perceptions of reality, he must often sail against the currents of his time. This is not a popular role. If Robert Frost was much honored in his lifetime, it was because a good many preferred to ignore his darker truths. Yet in retrospect, we see how the artist's fidelity has strengthened the fibre of our national life. If sometimes our great artists have been the most critical of our society, it is because their sensitivity and their concern for justice, which must motivate any true artist, makes him aware that our Nation falls short of its highest potential. I see little of more importance to the future of our country and our civilization than full recognition of the place of the artist." Remarks at Amherst College, Amherst, Massachusetts, President John F. Kennedy on October 26, 1963, less than a month before his death. More quotes: here and here.

The Jefferson Muzzles. "Since 1992, the Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Mr. Jefferson's admonition that freedom of speech 'cannot be limited without being lost.'" From "an alarmingly large group of candidates" the TJC has awarded Jefferson Muzzles for 2002 to nine "winners," detailed here. Depending in part on how the U. S. Supreme Court rules in a pending case, Republican Party v. Kelly, the judicial-election free speech case (more), it is possible that our Minnesota Supreme Court, which ought to be the defender of free speech, will receive one of the ignoble "Muzzles" next year. If our court's rule restricting the free-speech rights of judicial-election candidates is ruled unconstitutional, it (sadly) won't be the first time our state supreme court will have found itself figuratively slapped on the behind by the U. S. Supreme Court over a restrictive application of the First Amendment. More on the historical record later... BTW, if you want to nominate some governmental body or official to receive "a Muzzle" next year, click here. (04.12.2002)

The judicial incumbents' bill of rights? Very few people are bold and/or foolish enough to run against a sitting judge. I was one, and my opponent, a good person who spent @ $130,000 (much of it in contributions from lawyers) to my <$100 (my own money), trounced me. Curiously, even though I found that my own natural inclinations as to what to say pretty much comported with what I understood the court-created rules allowed me to say without fear of facing disciplinary action, I still felt "censored" and always felt I had to tippy-toe in what I was saying. For examples of what I did say, click here and here. I said at the time that I had some notion of what it must be like to be a writer in a totalitarian, censorious society. I also formed the opinion during the campaign that the rules in general, whether consciously so designed or not, favored judicial incumbents -- and favored the interests of lawyers over those of ordinary citizens. I was thus interested in reading the following in this report by Linda Greenhouse of yesterday's oral arguments in the judicial-election free speech case: "Justice Sandra Day O'Connor said the rule curbed challengers, while leaving incumbent judges free to express their views in the form of judicial opinions. 'It's kind of an odd system, designed to -- what? -- maintain incumbent judges?' she asked Mr. Gilbert." My thought, exactly. (03.27.2002).

Are judges "the great pretenders"? Dahlia Lithwick, reporting on the oral arguments in the U.S. Supreme Court on Tuesday, 03.26.2002 in Republican Party of Minnesota v. Kelly, seems to think all judges are biased but some are better than others at pretending they're not. She says, in part: "Whether or not you appear before a judge who announced he's biased during the election, chances are you are appearing before a judge who is biased. So isn't it better just to know your judge's biases well in advance? It sure would have made Bush v. Gore a whole lot easier to swallow." From Wait, Wait, Don't Tell Me! Should judicial candidates keep their opinions to themselves? (Slate 03.26.2002)

Forget the words to "The Great Pretender"? If so, click here.

The un-American way? From a column, Georgia's un-American judicial elections, by Bill Shipp in the Athens Banner-Herald 05.22.2002:

"Though the judge [in Georgia] are elected under the law, most judges, in fact, arrive at the bench via gubernatorial appointment. They later run in carefully crafted 'non-partisan primaries,' designed to insulate incumbents from bothersome challengers. In addition, judges are shielded from criticism by an inquisition-like panel whose rules obviously contravene the U.S. Constitution. Georgia thus remains in the odd circumstance of electing its lawmakers and law implementers in unfettered elections and its law interpreters in an orchestrated process designed to chill discourse and competition. For such an American exercise as voting, this approach is hardly the American way."

The gatekeeper's advantage. The New Republic has an interesting profile of Alberto Gonzales by Ryan Lizza. Gonzales is the guy who "wrote and publicly defended Bush's executive order on military tribunals," of which I was one of the earliest and most-outspoken critics, back when there were scores of gutless politicians and office-holders who believed the order was wrong but who remained silent because they feared the political ramifications of criticizing it. Gonzales is also, in the view of many, the leading contender to fill the next vacancy on the U.S. Supreme Court. Does he have an advantage over the other likely contenders? Yes, he not only has the President's ear but he's been the gatekeeper on judicial appointments. As Lizza puts it:

"Gonzales has one other advantage over Estrada and other potential rivals: As White House counsel, he'll be the one leading the search for a new justice when a vacancy occurs. And the last time Bush put someone else in charge of this sort of hunt, Dick Cheney ended up picking himself."

If you've read the first volume of Robert Caro's multi-volume bio of Lyndon Johnson, you may recall how Johnson turned a gatekeeper position at a podunk teachers college into a position of power. And if you've lived in a state like Minnesota, you've seen how generation after generation of partisan political sycophants and gubernatorial gatekeepers and right-hand men and women get themselves appointed to the judiciary -- from which lofty position they then hypocritically decry, as a threat to the independence of the judiciary, any intrusion of politics into the selection of judges by the ultimate selectors, the voters. More (05.22.2002)

Now you tell us... Associate Justice G.K. Butterfield Jr. of the N.C. Supreme Court spoke to some lawyers on Monday, 04.08, saying he supports taking politics out of the judicial selection process. More (Winston-Salem Journal 04.09.2002). Now he tells us. He presumably got where he is by being political. That's how most judges become judges -- thus, the old saying that a judge is someone who knew the governor at the time she was appointed. I'm always amused by the spectacle of a "politician in a robe" -- which is another well-known definition of a judge -- prancing around prating and pretending his "birth" as a judge was a virgin birth and that he's not political. I think I'd admire a judge more if he came right out and said it, "I got where I am because I was an errand boy for the governor, but our system is premised on the notion that once a lawyer takes the oath as judge, he gives up his old ways, and I take my oath seriously." (04.10.2002)

Yet another politician in robes? Senator Mitch McConnell's lawsuit challenging the constitutionality of the recently-enacted McCain-Feingold campaign finance law has been assigned to Judge Richard Leon, a newly-confirmed federal trial judge appointed by #43. "Judge Leon is just now settling into his new job, and he's already busy making first impressions. 'He's loud, obnoxious, and big,' said one of his new colleagues after a meeting. More to the point, he's also a movement conservative and likely to take a dim view of the new law...." More ("Reform meets its judge," The American Prospect vol. 13 no. 8, 05.06.2002). For more speculation on the judicial fate of the new law, see, "Wellstone's Folly - The dead rat on campaign finance reform's kitchen floor," by Mickey Kaus Slate 04.04.2002 (here), and "Handicapping McCain-Feingold - 'It's Chief Justice on the inside, with Sandra Day right beside him,'" by Dahlia Lithwick Slate 04.04.2002 (here). Lithwick suggests it might come down to "what [Justice] O'Connor is thinking, which is not a simple task. Her tendency to vote on a case-by-case basis, often without a unifying theory, has pundits stymied...." Id. Not mentioned by prognosticators are a) the fact O'Connor owes her seat on the bench to Arizona politics, particularly the late Sen. Goldwater of Arizona (more), and b) the fact Sen. McCain not only represents Arizona but was a co-sponsor of a bill naming the new, sometimes-criticized federal courthouse in Phoenix after O'Connor (more). (04.07.2002)

Have some judges used threats in order "to scare off potential election opponents"? It is widely believed in many jurisdictions that the organized bar "shuns" those attorneys who have the courage and/or foolishness to run against a sitting judge. But now in one jurisdiction two courageous and/or foolish attorneys have complained to the Judicial Qualifications Commission that some judges in fact have used threats to scare off potential opponents. "It is widely perceived in the legal community that [there is] an unwritten rule forbidding challenges to incumbent judges and the rule has been embraced by the judiciary. Lawyers have complained that when they considered running against a judge, they were threatened, although it's not clear if the threats came from judges, emissaries or lawyers acting on their own...." More (Sun-Sentinel 03.20.2002)

Judicial accountability at issue. "A group of local citizens is trying to get a statewide initiative on the ballot that would make [Idaho] judges more accountable to the public...." More (Spokesman-Review 02.28.2002). According to the paper, a group of concerned citizens is gathering signatures to put an intiative on the November ballot. The intiative seeks a "Judicial Accountability Intiative Law" (the group's slogan is an unfortunate acronym-based one, J.A.I.L. for Judges) creating "special grand juries to investigate complaints against judges." A prominent newspaper publisher is quoted as saying: "I've seen over and over and over again how judges are able to behave however they feel. They have total immunity for their actions. There are no mechanisms within the system for them to be accountable for their actions." Id. I don't agree with the complainants' assessment of the problem or their proposed solution, but I have been arguing publicly for some time that, while judicial independence is a necessity, you can't expect to have it or to have public support for it without significantly greater judicial accountability. I am a friend of the judiciary. The judiciary ignores the criticisms and suggestions of responsible people like me at its own peril. More. (03.01.2002)

Latest effort to "clean up" judicial elections. I ran a low-key non-campaign for Chief Justice of the Minnesota Supreme Court in 2000. I solicited no money, from attorneys or anyone else, and I spent less than $100 on my campaign. I felt someone should run against the sitting chief justice, for reasons I need not state, but, for reasons I also need not state, I was unwilling to do anything other than "stand" for the office, publish a few essays on my self-designed and self-maintained $18-a-month campaign website (click here and here for slightly-modified versions of the essays), and respond to press requests for answers to questions. The campaign managers for my opponent solicited money and endorsements from lawyers, politicians and others and ran ads, and my opponent, a good woman with more political experience than I had, made public appearances and otherwise actually "ran" (rather than "stood") for election, spending @ $130,000 (I'm told) in the process. Our leading local newspapers in St. Paul and Minneapolis, for reasons known to them, basically didn't cover my modest non-campaign and my opponent's only slightly-less modest campaign. I got a call from a Minneapolis Star-Tribune reporter a couple weeks before the election asking for an interview (which I declined for reasons I need not state) for the only real story the paper ran on the contest during the entire campaign, and I received invitations to be interviewed by editorial boards of the papers (which I declined for reasons I need not state), but that basically was it. It was a good clean non-campaign up against a good clean campaign, the latter got over two votes for every one received by the former, and a good time was had by all, with nobody (certainly not the non-campaigner) losing any sleep. But, elsewhere, I'm told and I believe it, judicial elections are not so tranquil or cheap and the bar-association types and good-government organizations are quite concerned. Reform judicial races, critics urge, by Naftali Bendavid (Chicago Tribune 02.19.2002). Apparently, commissions are being formed and recommendations will be made for "reform." I'm a bit skeptical of the reformers (for reasons I need not state), although if I lived in a different state I might feel differently. Anyhow, I personally won't be surprised if the people who are appointed to come up with "reforms" are "the usual suspects," people who can be guaranteed to express the typical bar-association viewpoint on these matters, and I won't be surprised if the "reforms" they propose aren't the same tired ones that have been proposed before. I've got a few fresh ideas on what might be done and I could come up with some more if I tried, but I'm convinced fresh approaches aren't wanted. (02.19.2002)

Cost per vote. Bloomberg, Mayor-elect of NYC, reportedly spent $92.60 per vote to get elected. More (NYTimes). Hmm. I got over 500,000 votes last year and spent less than $100 total. That means I got over 5,000 votes per dollar spent.or more than 50 votes per penny. :-) Alas, elections aren't decided on the basis of who gets the most votes per dollar spent. :-( (12.05.2001)

A judge's role. The Justices of the USSCt love to go on the lecture circuit every now and then and talk about themselves, that is, about what distinguishes their approach to judging from the approaches of some of their colleagues who aren't as wise. One sometimes wonders what their judicial philosophy might be, and how helpful it might be, if they found themselves sitting as judges in some third world country in which the judiciary is not as "independent" as ours is. This piece, out of Malaysia, illustrates what I'm thinking. It profiles the views of some participants in the 11th Malaysian Law Conference. A court of appeals judge there, Datuk Gopal Sri Ram, spoke on "The Role of Judges and Lawyers in Evolving A Human Rights Jurisprudence." He expressed the view that the "literal approach" (perhaps one might fairly substitute the term "originalist approach" or "textualist approach") taken by Malaysia's Federal Court in interpreting the provisions of the Constitution "gives little hope for the creation of human rights jurisprudence." A prominent lawyer, R. Sivarasa, "likened the Malaysian judiciary’s approach to the development of human rights jurisprudence to the metaphor of a person hesitantly dipping their toes and testing the temperature of the water in the potential whirlpool of human rights jurisprudence. 'It...appears that as tentative dips are made, there is also a tendency to quickly pull back the dipped toe.'" Some of those who weigh in with great confidence in debates in our country over the proper role of a member of the USSCt seem "cock sure" that there is only one right way, their way. But I'm not always sure they really know what they're saying or that they are doing anything more than uttering an agreed-upon set of "code words" and "code phrases." Does what "Judge A" says in a speech at a law school in Milwaukee really provide more than a "screen of words" to justify his going one way or another in a body of cases? Does what a judicial nominee says at a hearing on his nomination help much in predicting how he'll decide cases in the future? Mr. Dooley said once that "jidges" follow the election returns. (And we also know that election returns sometimes follow the judges.) I think Mr. Dooley was right: judges (even "originalists") after all are politicians, albeit judicial politicians, and have sensitive antennae and pick up on those things; they do follow (or pay attention to or are in some way indirectly influenced by) the election returns. And, just as political parties experience being in and out of favor, so, according to Robert Frost, are truths "in and out of favor." If I were President or a governor appointing judges, I wouldn't put too much stock in what the potential nominee says about his judicial philosophy or the method he thinks a judge should use in reaching a result. Here's what C.G. Jung says about this: "An ancient adept has said: 'If the wrong man uses the right means, the right means work in the wrong way.' This Chinese saying, unfortunately only too true, stands in sharp contrast to our belief in the 'right' method irrepective of the man who applies it. In reality, everything depends on the man and little or nothing on the method." I think there's more truth than we might like to admit to what Jung says. (11.09.2001)

Investigating the investigator. A California judge named Patricia Gray was successfully challenged in the judicial election by a public defender. The state's board on judicial ethics then accused Gray of unethical conduct for an accusation she made during the campaign that her opponent, a public defender, condoned the conduct of his clients. Now, however, according to the Sacramento Bee, the board's top lawyer, Victoria Henley, is herself under investigation because it turns out that at the time Henley and her staff filed the accusation against Gray, Henley's lawyer-husband had a malpractice suit on behalf of a client pending against Gray based on Gray's representation of the client before she became a judge. My own previously-stated view is that judicial campaigns around the country, including in Minnesota, are overly regulated to the point of interfering with each candidate's free-speech rights and with each voter's right to unimpeded access to information and debate. (10.29.2001)

Plaintiffs' judges, insurers' judges. It's sad but true. In state after state appellate judges, rightly or wrongly, are identified as primarily in one camp or the other -- the personal injury plaintiffs' camp or the insurers' camp. Often it's easy to tell which camp a judge is in just by reading a sample of the judge's opinions. Michigan is a state in which plaintiffs' lawyers are claiming that their clients aren't getting a fair shake by the appellate courts. More (NLJ via Yahoo). (10.26.2001)

Making sausage and appointing judges. For many years my great grandfather, Hans Rasmus Hanson, and grandfather, Robert Gornelius Hanson, made money, in more ways than one, from "livestock." They both had well-developed senses of "value" -- how much to pay for a cow in order to sell it for a profit. (I'll let you in on an old family secret: in that, as in so many things, the "trick," my friends, is to "buy low and sell high.") For many years they were involved in shipping livestock from my hometown by train (another secret: freight train, not passenger train) to "the stockyards" in South St. Paul. Sometimes they bought cows in Benson, then shipped them and sold them -- usually at a profit. Other times they acted as shipping agents, charging, as agents are known to do, a percentage of the selling price. They also had an interest in a local "meat market" and supplied the market with livestock for butchering. In my youth, which was before merchants learned modern marketing tricks, customers who wanted to buy meat had to make it past a scary, growling dog who guarded the front door of the market (and the meat within, which the dog presumed was partly his). In Benson, and in small towns all across America, there was a saying to the effect that you really don't want to see the butcher make sausage, hot dogs, and hamburger. I think the same may be said of the highly political process, both at the state and federal level, of the executive's appointment of judges. In a new memoir John Dean, who advised President Nixon on the appointment of U.S. Supreme Court Justices, tells the fascinating behind-the-scenes "sausage-making" story of the events leading to the appointment of William Rehnquist as an Associate Justice. He tells some of it in this book-promoting Q&A in Salon. (10.04.2001)

Verbal liberalism, verbal conservatism. Justice O'Connor made some critical statements about the death penalty and about our society's over-reliance on lawyers in a speech on 07.02.2001 to an organization of feminist lawyers at the Hilton in Minneapolis. But, in "votes" since then, she has continued "siding" with the majority of the Court in upholding death-penalty challenges. According to this report in the NYT of 09.29.2001, she has spoken once again, on 09.28, this time to some law students in NYC. In this speech she speculated that as a result of governmental responses to the events of 09.11"we're likely to experience more restrictions on our personal freedom than has ever been the case in our country." She also posed some rhetorical questions to the students: "First, can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them? Second, at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that that legislation provides? These are tough questions," she said, "and they're going to require a great deal of study, goodwill and expertise to resolve them. And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases." I'm in a minority in my views, but I have been and am critical of judges giving speeches like this. Not to focus on Sandra Day, who's an o.k. judge, but in general speeches like this, of necessity, are wishy-washy. Worse, the wishy-washy statements are stereotypically judicial in prose style. Even worse, the statements are delivered in the usual judicial cadences, cadences that say, "I am filling the role of a judge and what I'm saying should sound profound. Because I am a judge, what I am saying must by definition be profound and should be treated as such." (About the last two points, I read recently a comment by Felix Frankfurter that judges should be judicial-minded but not always so judicial-sounding.) Finally, and again I'm speaking generally, judicial speeches, to the extent they say anything, are often, while not intentionally so, in some way misleading. Some judges, perhaps unconsciously, want to sound more "liberal" than they might seem to be in their rulings, e.g., their rulings upholding judicial executions. Verbal liberalism is the result. Pontius Pilate is the prototype, "washing his hands of the matter" of the judicially-sanctioned execution of Jesus Christ, laying the blame on the will of the crowd. On the other hand, other judges, perhaps unconsciously, often go on and on about the importance of judicial restraint. And then they go back to their chambers and somehow convince themselves that, by some happy coincidence, the Drafters of the Constitution had in mind what they themselves now have in mind. Perhaps I'm exaggerating to make a point. My point is this. It's o.k. for some judges, those who have something non-platitudinous to say, to give an occasional speech, assuming they're carrying a full load and are current in deciding cases. Holmes, who always wrote his opinions immediately after oral arguments were over, gave around 30 speeches in his 50 years as a judge. All but two of them (which are major addresses) are collected in a slim volume I have that is called The Occasional Speeches of Justice Holmes. Most all of them are still worth reading. Some, including one I read the other day and linked to, the Memorial Day Address in Keene, NH (click here), are among the greatest speeches ever penned. Most judges, however, would be better off staying in their chambers, doing the work we expect of them. After all, they already have a captive audience. And everything they say gets published, regardless of its merit. (09.30.2001)

"The media-judicial complex." Back in 1950's the late C. Wright Mills wrote a provocative book of sociological analysis titled The Power Elite. I read it in college in the early '60's in a course taught by the late Arnold Rose, who represented the area around the U. of MN in the legislature for a number of years. The book and some of Mills' other writings examined the way those at the top of society -- the celebrities, the very rich, the chief executives, military leaders, and others -- "get their way." [link to site with excerpts] While he was a speechwriter for Ike, Malcolm Moos, later President of the U. of MN, who presumably was aware of Mills' thesis, helped draft Ike's farewell address, the famous "military-industrial complex" speech, which Ike delivered 3 days before JFK took office on 01.20.1961. Now, in a comment on the latest political sex scandal in the UK, the Land of 10,000 Sex Scandals, the UK Independent has coined a new phrase, "the media-judicial complex." The latest scandal, involving the Hamiltons, erupted just days after the seeming-end of the one involving Lord Jeffrey Archer, the politician & best-selling novelist, who is now writing novels in a prison cell. As did the Archer scandal, this one involves payments by "the tabloids" for exclusive first-person accounts and heavy involvement of, and profit by, lawyers. The comment that coined the new phrase, which I may use in the future, is a classic of its sort and I refer you to it for its (typically British) brief, tart style. Click here. (09.01.2001)

Going easy on judicial nominee. Mississippi Gov. Ronnie Musgrove has appointed as district court judge a lawyer, Solomon C. Osborne, who "was publicly reprimanded by the Mississippi Supreme Court for misuse of client funds and for providing incorrect information to a federal bankruptcy court," a man who also "has nearly $176,000 in federal tax liens on record against him." The governor said that a lawyer will ultimately be judged as a judge by "his or her qualities in a courtroom." [more] To paraphrase Mr. Rogers, good lawyers sometimes do bad things. As we in Minnesota know, even groups of lawyers -- bar associations -- sometimes make mistakes. Click here. Let's hope Solomon Osborne will show the same understanding of human frailty as judge that the governor has shown in appointing him notwithstanding his missteps. (08.28.2001)

Going tough on judicial nominee. If Solomon Osborne's "past" doesn't disqualify him from judicial appointment, should Jeffrey Locke's?The governor in Massachusetts has named Locke, a D.A., to the Superior Court. A former criminal defendant alleges that Locke had him wrongly arrested in a high-profile murder caee while Locke was lobbying to get appointed "state secretary of public safety." The former defendant's lawyer, who got the charges dismissed, says Locke may have erred in charging his client, that mistake does not constitute a disqualifying character flaw. An eight-member governor's council on judicial nominations will decide Locke's fate. [more] (08.28.2001)

Ignorance of the law. The Ohio Elections Commission is conducting a hearing into violations of campaign-finance law by Trumbull County Sheriff Thomas L. Altiere. "Tom" basically pleaded ignorance of the law, saying he didn't knowingly violate it. [more] One hopes the commission will go easy on Tom. Hey, even bar associations sometimes find campaign finance and reporting laws confusing. Click here. If we're going to go easy on lawyers when they violate the law -- especially when they do so for the noble purpose of aiding the elections of sitting judges before whom they practice -- we oughta go easy on sheriffs who aren't learned in the law, just mere enforcers of it. And if we go easy on Tom and others like him, maybe they'll show a little humanity and understanding as they merely ministerially enforce the law. (08.25.2001)

Judicial thought control. Last year, by a vote of 8-4, the judges of the 8th Ohio District Court of Appeals, which hears appeals from the Cleveland area, adopted a rule that court opinions should identify trial judges and attorneys involved in the case only if it is "essential to clarify or explain'' their roles. According to news reports in the Columbus Dispatch and the Cleveland Plain Dealer on 08.22.2001 (click here and here), the eight judges who voted for the rule "felt someone reading a decision could draw an unfair or incorrect inference." One judge, James Porter, now retired, is quoted as stating that identifying the trial judge "leaves the inference that the judge did something wrong." A newer judge on the court, Anne L. Kilbane, backed by the Ohio branch of the ACLU, has asked the Ohio Supreme Court not to approve the rule. The ACLU attorney points out that the ban makes it difficult for the public to evaluate the work of trial judges and makes it harder for attorneys , who often need to contact the attorneys who worked on a case that may have precedential or other value for them. Porter complained that the public airing of what he said is an internal dispute has hurt the relationships of the judges on the bench. I think it's transparent that the rule exceeds the authority of the majority members of an appellate court. It is a sine qua non of being an appellate judge that in every case the judge is free to "write separately," either in concurrence or dissent. While the majority of the court is free to adopt a rule specifying the format and content of the heading of "the court's" opinion, it is not free to restrict what an individual judge says when writing separately (and Judge Kilbane still includes the names in her opinions). Moreover, the rule itself is idiosyncratic and eccentric: most appellate courts recognize that the information in question belongs at least in the formal heading of each of the court's opinions, although not necessarily in the actual text of the court's opinions. (It may make sense generally not to include the information in the actual text of the court's opinion.) In an era when appellate judges have assigned too great a weight to the amorphous supposed virtue that they refer to as "colleageality," it is refreshing to read of a judge -- in this case Judge Kilbane -- who puts principle, openness, and accountability above colleageality. For more of my views on courts, click here, here and here. (08.22.2001)

When judges misuse doctrine to deflect criticism. Once upon a time in a small town in the Midwest a man, with much fanfare, took charge of a community celebration that theretofore had been organized each year by some women. The good citizens were not impressed with the changes the man made to the celebration in an attempt to put his mark -- his dog markings, as it were -- upon it. Aware of the criticism of his efforts, the man started a speech by quoting Dale Carnegie, the author of the only book the man had ever read, How to Win Friends and Influence People. The quote was, "As that great philosopher, Dale Carnegie said, there are three 'C's' to getting along with people: 'Don't criticize, don't condemn, don't complain.'" Throughout my life I have observed people use similar arguments to try deflect criticism or set themselves above it. President Johnson, as many Presidents before him had done in similar circumstances, used the argument to try prevent criticism of his decisions regarding our participation in the Vietnamese civil war. Today judges regularly wave the flag of "judicial independence." It is a flag they believe should protect them the way the Red Cross flag protects relief workers in war zones. These politicians -- judicial politicians but nonetheless politicians -- want us to believe they are "the good guys" and we should just leave them alone to do their business. Not a bad approach if they can pull it off. On Tuesday of this week Madame Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada, tried to pull it off. She said, to a gathering of lawyers, "I would ask the people in the media to [tell] me what is productive in personal attacks against judges, and the pressure that it puts on the judiciary? It is so unproductive that to me, it is a sliding slope, an attack really, to independence of the judiciary." As The National Post reports, "Judge L'Heureux-Dubé was at the heart of a very public brouhaha in 1999 after [she herself] publicly criticiz[ed] a[ female] Alberta judge who had questioned the morals of the victim in a sexual assault case." That judge responded by denouncing Judge L'Heureux-Dubé "for being anti-male and said her attitude could provide 'a plausible explanation' for the increasing rate of male suicides in Quebec." I guess the truth is that Judge L'Heureux-Dubé believes public criticism of judges is o.k. if she is the one doing the criticizing. (08.16.2001) For some of my views on the subject of judicial independence, click here.

The ABA's Standing Committee on the Federal Judiciary. Here's a link to an interesting background piece in Legal Times via Yahoo re the ABA committee that used to get to screen Presidential nominees before the President announced the nominations. President Bush put an end to that practice this spring in response to increasing criticism by the Federalist Society and numerous Republicans that in recent years the committee had displayed a clear "left-wing bias" in its ratings. Click here, here and here. The piece, while suggesting that members of the committee try hard to be objective, reveals also that those selected as members of the committee almost always are "litigators," i.e., only one flavor of the many flavors of lawyers. Almost by definition and certainly in my experience, litigators in general are the least scholarly, most combative, and least likeable of all lawyers. At least, that's my opinion. Moreover, in almost all cases the litigators chosen are law firm "partners," with all that that means. And they most certainly are "bar association types," with all that that means. How ridiculous to rely primarily or preferentially on their recommendations as to the qualifications of Presidential nominees. Add to the mixture the mysteriousness and the secretiveness of the ABA committee's procedures and one wonders why it took so long for the Executive Branch, whether or not peopled by Republicans, to stop giving the committee a preferential role in the nomination-confirmation process. Here, as in so many areas of decision-making, ye olde "totality of the circumstances" approach makes sense. In short, any relevant information volunteered by the ABA should be considered, for what it's worth, along with all the other relevant information available from all reputable sources in making both the nomination and confirmation decisions. (08.11.2001)

Study: disagreement, not harmony, is key to organization's or institution's success. From a Brown University press release: "In money-making organizations, respectful disagreement among colleagues – not close friendships – is the ideal, according to a new study by Brown sociologist Brooke Harrington....The closer colleagues are – family and friends – the less apt they are to engage in constructive debate about business decisions....The findings illustrate why family businesses frequently get into trouble; people may be reluctant to contradict a family member. A similar danger is present in all work organizations...When it comes to decision-making in complex environments...it is essential for business to maximize input from workers. Nowhere is that more evident than in industries where ideas are the central product, said Harrington. Even an organization like a board of directors, which is given the challenge to hold management accountable for decision-making, can suffer when the managers become too friendly and close to board members...." These findings seemingly are applicable to large organizations like law firms and to smaller institutions such as a multi-member appellate court. In multi-member appellate courts one of the many current clichés is "colleageality." It is a word that, like most clichés, is used as a substitute for thought. Some judicial lightweights seem to think an appellate court should be a "mutual admiration society" and they put a premium on reaching unanimity. Our Founding Fathers were wiser. They knew that diversity of opinion and respectful arm's-length disagreement, even among colleagues, are the lifeblood of a creative, free, democratic society. I recently heard a well-known, highly-thoughtful appellate advocate bemoan a particular appellate court's relatively-recent overemphasis on suppressing ideological differences in its opinions in the interest of presenting a harmonious, united front to the bar and the public. The unsettling result, according to this advocate, is that even experienced students of the court's opinions are unable to discern any rational pattern to the court's jurisprudence. Another student of that court describes its opinions as "bland." More on this later....

Hmmm. "Lawyers who contribute to the election campaigns of Texas supreme court justices get their cases disproportionately accepted for review, a judicial watchdog

group says....Chief Justice Thomas Phillips called the statistics 'junk science' and disputed the relevance of the analysis." [more] For access to the full report, "Pay To Play: How Big Money Buys Access To the Texas Supreme Court," prepared by Texans for Public Justice, click here. No one believes in judicial independence more than I, so long as its antimony partner, judicial accountability, is given equal recognition. I'm wondering if these two important public interests might be served by an association or organization of interested citizens in MN, which could use the "sunshine laws" to monitor our court system's budget in detail (not in "lite" summary form), examine judges' expense-account, time, and productivity records, conduct studies such as the Texas one (preferably a longitudinal one going back 5 or 10 years, to ensure reliability), study the issue whether the judicial branch is up to the task of regulating the practice of law, etc. It's possible our court system would come out smelling like a rose. Who knows.

Judicial politics Minnesota style. The Eighth Circuit Court of Appeals, in a 2-1 decision filed April 30, 2001, upheld, as construed, the controversial Canon 5 of the Minnesota Code of Judicial Conduct. Republican Party v. Barry M. Lazarus Case Nos. 99-4021, 99-4029, and 99-4025. Although I was an unsuccessful candidate for chief justice in 2000, I am not involved in the litigation and have no connection with the litigants. During the campaign, I publicly urged my opponent, the current chief justice, to do as I did, forego all endorsements and contributions from both individuals and groups. Her chairperson hinted that I took the position because I couldn't get anyone to endorse me or contribute to my campaign if I tried. Perhaps there's a grain of truth to that. :-) However, anyone who really knows me knows that I've always been pretty independent-minded, that I'm not a joiner, that I don't follow the crowd, and that I don't particularly want any crowd to follow me. I think I'd make a good judge but I made a poor judicial candidate. As my old torts professor at Harvard Law, the patrician Milton Katz -- who had been Chief of the Marshall Plan in Europe in 1950-51 and always wore a vested suit to class -- said in a book he wrote, the skills needed to get elected to a particular office aren't necessarily the same as those needed to serve well in that office. In any event, I urge everyone interested in the important issues to read the majority opinion by Judge Gibson, joined by McMillian, and the provocative dissent by Judge Beam. Click here, then go to opinions filed on April 30 to download opinion in Adobe format. The Eighth Circuit's decision is less than satisfactory, in my opinion, and I therefore hope the United States Supreme Court will review the case. For an interesting perspective on the issues, see The Case for Partisan Judicial Elections at the Federalist Society's website. (05.02.2001)

Criticize the courts (when appropriate) and don't feel bad about it. Larry D. Kramer, a professor of law at NYU, recently wrote an interesting critical piece in the New York Times on recent federalism decisions of the U.S. Supreme Court. As he points out, our wonderful system of government in reality doesn't give the "final" answer to any of the "three" branches, and it subjects all of them, directly or indirectly, to the scrutiny of the people and the press. The notion that the judiciary is a fragile institution that needs to be protected from public censure is, he correctly points out, false and counterproductive. If you, as a lawyer or as a layperson, believe a judicial decision is wrong, you are free to criticize it. So is the press, although I believe in recent years the press -- increasingly mired in "lite" news, celebrity gossip, personalizing of politics, and press-release journalism -- has failed in its role as watchdog on the judiciary, as in its role of governmental watchdog in general. A veteran reporter with the Times of India, Palagummi Sainath, seems to agree with me. He argues that journalism has been replaced by "stenography," that is, "mindless notetaking" by reporters at press conferences, etc. [more]

Impeach the judge? Last year articles of impeachment were filed against Chief Justice David Brock of the New Hampshire Supreme Court, and a trial was held in that state's senate, which resulted in the judge's acquittal. Recently there's been talk of possible impeachment of a new member of the NJ Supreme Court, if he doesn't resign first. The justice was the state's AG at the time the feds were investigating allegations of racial discrimination by state police in stopping minority motorists for what critics have called the "offense" of "DWB, Driving While Black." His critics allege he withheld information from the feds and gave false sworn testimony during the confirmation process regarding his knowledge of the practice while he was AG. These cases show that the flip side of judicial independence is judicial accountability. Speaking hypothetically, the New Hampshire case suggests that a judge who verbally "recuses" in conference on a case because of a conflict of interest but then proceeds to make comments to his nonrecusing voting colleagues about the case might be subject to impeachment. Again speaking hypothetically, the New Jersey "case" perhaps suggests that in a state in which gubernatorial appointment of a judge is "confirmed" by the voters rather than by the state's senate, an incumbent's making false campaign statements about his prior professional experience, for example, or intentionally misrepresentating the challenger's prior experience to a reporter could be an impeachable offense. For an interesting history of impeachment of federal judges, written by Griffin B. Bell in 1998, click here.

Headline to a story in the Chicago Tribune: "Lawyers plotted to buy judgeship." The charge is that three lawyers hoped campaign contributions to a candidate for the Illinois Supreme Court,who was then a member of the court system's associate judge nominating committee, would convince the recipient to recommend one of them for a judgeship. [more] I argued during my own unsuccessful 2000 campaign for judicial office in Minnesota -- which fortunately has no history of judicial corruption -- that a judicial candidate "who relies heavily on endorsements and contributions by lawyers in particular risks creating certain negative perceptions, fair or unfair." For that reason, I argued that all judicial candidates should voluntarily refuse to accept contributions from lawyers. I went further and refused all endorsements and contributions, thereby making it clear that if elected I wouldn't owe (or appear to owe) anyone, lawyers or others, anything. I also spent practically nothing on the campaign. A lot of good my purity did me: I lost big. :-)

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Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.