The Daily Judge
© 2008 Burton Randall Hanson
      Archives - 10.01.2008 - 10.15.2008
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge 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, this is a so-called "blawg," a law-related personal non-profit pro bono publico First-Amendment protected "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 legal 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 you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there. We urge you in every instance to click on the link and read the entire story or other printed source to which we link. We often use the linked piece as a springboard for expressing our opinion, typically clearly labelled "Comment."

About links.  a) Links, like judges, eventually retire or expire, some sooner than others. b) Access to all stories via these links is free, at least initially, although some sites require free registration. c) Free access often turns to fee access after a day or a week or some such period. d) Entries, following the typical blog format, are in reverse chronological order.

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He has devoted his entire professional career to the public interest. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com (archived here), contained a personal campaign weblog, possibly the first campaign blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a public interest political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

 "BurtLaw's Law And Everything Else, a Web Site produced by Burton Hanson, is part of the Library of Congress September 11 Web Archive and preserves the web expressions of individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Dates Captured: September 20, 2001 - December 17, 2001"

Some of our recent postings. a) Please, no fan mail.... b) Is it fair that one judge's salary is much, much higher than his peers' salaries? c) Judge punched worker. d) The sign outside a judge's courtroom. e) Linda Greenhouse denies influencing SCOTUS; I deny influencing her. f) The judicial mind at work: 'hair judge' knows 'it' when she sees it. g) Some everyday examples of the 'knowing it when I see it' style of judging. h) Just another day in court. i) Herein of 'sifting judges.' j) An observation by a judge who's done his share of 'sifting.' k) Quote-of-the-day. l) DWI judge drivers her BMW into trooper's car, is charged with DWI. m) Judge sues top judges for 10 million. n) Ex-judge is derided for referring to time on supreme court as 'expensive hobby.' o) Book of stories from the Islamic courts. p) Held, sphinxy judicial decisions are not acceptable. q) A Danish for breakfast at SCOKO? r) Campaign contributions and judicial recusals at SCOWVA. s) Fun facts. t) Lawyers and judges working together to drain your wallet? u) Judge Martin Clark's latest 'thriller.' v) Grand jury declines to indict judge who's suing sheriff. w) Judicial demographics. x) Judge Karisma Kapoor insists she'll be honest, fair. y) Traveling judicial dog'n'pony show rolls into OshKosh. z) Judging typos. aa) Dostoevsky and the redemption of the damned. bb) An oldie-but-goodie -- from way before the 'Oldie-But-Goodie Era.' cc) The latest syndrome -- FAS. dd) When the judge talks too much. ee) Group criticizes burning of judge's official residence. ff) Complaint is filed against SCOWIS' newest member. gg) The judge may need the services of Rosemary Boxer and Laura Thyme. hh) Annals of romance-based revenge and the law. ii) Judge Coffey revisited. jj) What's in a (committee) name? kk) Are female applicants more likely to get appointed judge in the UK? ll) Annals of judicial secretaries -- paying the boss' gambling debts. mm) An oldie-but-goodie from 'Secular Sermons for Lawyers and Judges.' nn) Voters get a choice for chief of SCOMI. oo) Should judges head 'inquiry commissions'? pp) The curious Texas institution of 'county judge.' qq) Judge who was prosecutor gets reprimanded for having mixed collecting with prosecuting. rr) Two Louisiana judges get prison for bribe-taking. ss) High court censures retired judge, bars him from judicial office. tt) Did 'judge's meddling' cost president his job? uu) Annals of biased Swede 'judges.' vv) Should we rely on judges' dress to uphold 'the majesty of the law'? ww) Judge resigns because of sleep disorder. xx) The scoop on TV's newest judge. yy) Another accusation of judicial misconduct out of FLA.



 Please, no fan mail.... "Ringo Starr doesn't want to hear from you. If you do write, your letter will end up in the trash...[F]an fatigue led the former Beatles drummer to post a sometimes angry sounding short video clip on his Web site telling fans that any mail sent to him after Oct. 20 will not be read or answered...'It's going to be tossed,' he says on the video. 'I'm warning you with peace and love, I have too much to do. So no more fan mail. Thank you, thank you. And no objects to be signed. Nothing. Anyway, peace and love, peace and love.'" More (Yahoo News 10.14.2008). Comment. With great reluctance, I'm afraid I, too, must adopt the same policy. You think I don't have groupies? You think I'm not inundated with E-mail from female readers of The Daily Judge? (I refer, of course, to lonely female judges, law clerks, judicial secretaries, law students...the list goes on.) Just this morning I received one from a woman identifying herself as "Sexy Babe" with the come-on heading "Lets meet at lunch." And another one from a gal who calls herself "SexyGirl238." Needless to say, with my conservative Norwegian-Lutheran background, I don't even consider opening mail like that. And, no, I'm not berating the women who send such missives. I get the feeling they can't help themselves. In fact, I sincerely worry that I've said something in my postings that causes these otherwise presumably thoughtful women to depart from the traditional societal mores in approaching me thusly. Undoubtedly, they are attractive and alluring women -- because no woman calls herself "sexy" who isn't, right? -- and therefore they shouldn't need to resort to such bold methods to attract attention from men. But I guess I'm not just any guy! In any event, I'm not angry. I'm full of understanding. But...as Ringo said, enough is enough. Addendum. I've already received protests asking me to reconsider (sigh). Okay, here's the deal. I might modify the policy...later, but only after a trial "cooling-off" period. Then, perhaps after obtaining the out-put of a Blue-Ribbon Commission -- which I'll stack with some of the aforesaid "lonely female judges, law clerks, judicial secretaries, law students") -- I'll announce a set of behavioral guidelines for my female readers to follow in our future contacts. An example: the contacts must be digital or "digitized," that is, by electronic mail. More on this later.... Earlier BurtLaw 'announcements.' Blogger Hanson May Have Summer Virus (Law and Everything Else - Entry dated Saturday, 08.10.2002).



 Is it fair that one judge's salary is much, much higher than his peers' salaries? "Simon Cowell is earning $36 million a year, well above what Paula Abdul and Randy Jackson earn...'Why is he getting more than the other two judges? Because it is believed that he brings more to the table.'" So says the former executive producer of American Idol, Nigel Lythgoe. More (Monsters and Critics 10.14.2008). Comment. Lythgoe says Cowell is "worth every penny." Are you?

 Judge punched worker. "The Supreme Court fined [Rodolfo Garcia,] a retired judge of a municipal trial court in Negros Occidental[,] over P20,000 for punching a utility worker in 2002, when he was still on the bench...." More (Inquirer - Philippines 10.14.2008). Comment. Is this incident the proverbial tip of ye olde bankrupt Icelandic iceberg? Is physical mistreatment of court underlings by judges more common than we like to think? Probably not. (But it was fun asking the question and leading you on....)

 The sign outside a judge's courtroom. "The latest example of judges behaving badly comes from Rogers County, where District Judge Dwayne Steidley had a sign posted outside his courtroom that made it clear the public wasn't welcome: 'ONLY DEFENDANTS are allowed in the court room. Family and friends must stay in the hallway.'" The presiding judge has ordered the sign removed. More (The Oklahoman - Editorial 10.14.2008).


 Linda Greenhouse denies influencing SCOTUS; I deny influencing her. "Ryan Nees '12 asked later in the Tea if [Linda] Greenhouse's coverage of the court had influenced justices' ideologies, a phenomenon conservative pundits have dubbed 'the Greenhouse effect.' Greenhouse waved off the question. 'I have never personally seen the slightest bit of evidence that I've had any influence on the court,' she said...." More (Yale Daily News 10.14.2008). Comment. The "Tea" referred to "kicked off" Greenhouse's one-year tenure with "the other law school's" law and media program. Next fall she'll teach. BTW, because I'm a believer that we're all "connected" in some way, I'll point out that she was a student at Radcliffe College in Cambridge when I was a student at Harvard Law School. Our paths must have crossed, but I've never personally seen the slightest bit of evidence that my presumed walking past her and not noticing her had any influence on her choice of career or on her SCOTUS reporting.

 The judicial mind at work: 'hair judge' knows 'it' when she sees it. "For the top honor, judges were looking for a stylist that was highly creative but who could whip up styles everyday people would wear. 'That's a lot, but you know it when you see it,' said judge Mary Taylor, a stylist from Jackson...." - William R. Wood, From Hair fair: Top stylists wow judges in downtown fundraiser (Kalamazoo Gazette 10.13.2008). Comment. We've found that great judges think alike, regardless of whether the judge in question is judging a beauty pageant, an action in trover, or a state fair preserve competition. See, e.g., BurtLaw's Dog Judging, Jam&Jelly Judging, Etc. (Law and Everything Else). The only advice we can give judges of hair styling competitions is the advice we gave to Judge Patty Thomas as she prepared to be judge of the student competition at Mr. Bernard's School of Hair Fashions Inc. back in August of 2007.:

Never forget that while scientists seem to agree that hair is dead by the time it emerges from the skin, hair styling is not a dead art but a creative living art that, like all art, is capable of transforming the ordinary into something beautiful and alive, even permanent, and that it is not Clarence Thomas' or Nino Scalia's balding, crabbed "dead constitution" but the silver-locked, wonderfully-styled Oliver Wendell Holmes, Jr.'s "living constitution" of hair, in all its stylistic fullness and Olympian tonsorial glory, that you as judge -- as an honored 1977 graduate of Pierre's School of Cosmetology with years of experience in perming, coloring and styling -- are expounding. Pay attention to roots, by all means, but don't limit yourself thereby to the hair styles worn by Martha Washington and Abigail Adams. And whatever you do, don't applaud the hair styles of Nino Scalia or Clarence Thomas or Sam Alito. Holmes' style, even in hair, was better.

From Another Thomas to be judge (The Daily Judge 08.06.2007). Want to learn more about the "knowing it when I see it" style of judging? Read on....

 Some everyday examples of the 'knowing it when I see it' style of judging:

a) Potter knows a petunia when he sees it. In his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964) -- which held that the so-called "Roth test" protected all obscenity except "hard-core pornography," Justice Potter Stewart wrote, in part:

It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

As the well-known blawger Eugene Volokh pointed out in a blog posting dated 06.27.2005, Justice Stewart only "thought" he knew it when he saw it, because "after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system."

b) Stewart's test as 'The Casablanca test': "According to The Brethren, the law clerks that drafted the Justices' opinions created...short hand for how their bosses decided if material was obscene...Justice Stewart's Definition [was called] The Casablanca Test: '...I know it [obscenity/pornography] when I see it." In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."

c) How determine if scholarship is feminist or not? See, Linda E. Fisher, "I know it when I see it, or what makes scholarship feminist: a cautionary tale" (Columbia Journal of Gender and Law 2003).

d) The economics of a 'know it when I see it' test or rule. Michael F. Ferguson and Stephen R. Peters, But I Know It When I See It: An Economic Analysis of Vague Rules (Abstract 2000) ("A vague rule reduces entrepreneurs' ability to erode the rule through loopholes by making it more difficult to predict what actions will be permitted ex post. However, because a vague rule creates uncertainty about which activities are prohibited and which ones are not, it causes a chilling effect on economic activity and introduces inefficiency into the legal system. The optimal amount of vagueness in a rule strikes a balance between the costs of loopholes, the chilling effect on economic activity, and the inefficency created in the legal system.").

e) Is 'art' something one knows on seeing? "The question of 'What is art?', inchoate in more sedate museum settings, is brought to the fore without shame or awkwardness at the Pompidou [Museum], where even the building ('like an office block that threw up on itself,' someone behind me in the line to get in said) makes one ponder the definitions and boundaries of art and architecture." -- From an entry titled "I know it when I see it" at Jenna's Model Life (10.04.2007), an interesting blog that Google caused me to stumble upon that is maintained by a young model for whom I predict success -- as a writer. (It's not that she won't also find success as a model -- it's just that I know good writing when I see it.)

f) When the Stewart test works. "Abdicating the definition of quality to 'I know it when I see it' only works when we all have the exact same values, experiences, and expectations." Tom Taormina, I Know it When I See It: The True Meaning of Quality (Informit 03.08.2002).



 Another accusation of judicial misconduct out of FLA. "A Broward County prosecutor[, Sheila Alu, in a sworn affidavit] has accused a sitting judge of improper behavior during a capital case, saying the judge and the prosecutor met over dinner during the trial and joked about the case. The prosecutor...said Broward Circuit Judge Ana Gardiner and former Broward prosecutor Howard Scheinberg laughed about the victim's and defendant's sexual orientation -- both were gay -- and talked about a juror fainting over grisly crime-scene photos days before Omar Loureiro's March 27, 2007 conviction for first-degree murder...By speaking up, [Alu, depicted right] said, she has faced ridicule, ostracism and character assassination...." Judge Gardiner and Mr. Scheinberg deny any wrongdoing. More (South Florida Sun-Sentinel 10.14.2008).

 Just another day in court. "'This is ridiculous. I assume you actually went to Law School?' Her Ladyship is obviously upset and with good reason. The affidavit is poorly drafted; wrong pronouns, bad grammar and innumerable spelling errors. It's as though the lawyer made a conscious effort to break as many rules of grammar as he could and pointedly ignored the squiggles Microsoft is so kind to provide with Word...." - From Rookie Lawyer Blog (This Day - Nigeria 10.14.2008).


 Herein of 'sifting judges.' "In Scots law there is no legal right of appeal, so once the grounds have been formally lodged it is down to a 'sifting' judge to decide whether to allow a full hearing to go ahead before a panel of five judges." Source (BBC News 05.02.2001). Comes now a news story out of Scotland that more "sifting judges" are to be appointed, these with the role, apparently at the early stages of litigation, of sifting out "frivolous compensation claims that are clogging up Scotland's civil courts." More (The Scotsman 10.13.2008).
Comment. I can't say for sure, because I'm not an expert in Scottish legal procedure, but at first glance it appears that at the appellate level a single "sifting judge" decides whether to allow a full hearing. Interestingly, three "sifting judges" are required at the Victoria Livestock Show's "Junior Commercial Heifer Show and Sale":

Due to space limitations, the total number of pens (exhibits) will be limited to 65 or less. Therefore, if more than 65 pens are entered at tag-in date, a sifting rule will be implemented. At show time, judges will be asked to sift any pens of heifers that do not meet quality or condition to make suitable replacement females. All heifers passing the sift standards must be present for sale. Those heifers not passing the sift standards must be removed from the Victoria Livestock Show grounds upon completion of the sifting program. Three sifting judges will be used, with each judge having 1 white chip (signifying pen approval) and 1 black chip (signifying non approval). Sifting judges should refrain from discussing pens while making their decision. Each pen of heifers must receive 2 or more white chips to gain approval to enter the show and sale. Each pen of heifers receiving 2 or more black chips does not pass the sift test and declares them ineligible for the show and sale.

More (VictoriaLivestockShow.Net).

 An observation by a judge who's done his share of 'sifting.' "I see a vast number of appeals from sheriffs because I see about a fifth or a quarter of all the appeals in Scotland as a sifting judge, a sifting appeal judge, or as a judge sitting in the Criminal Appeal Court. I am not satisfied. I do not have the same confidence in the sheriffs and temporary sheriffs that the noble and learned Lord the Lord Advocate expresses. One sometimes finds that people who occupy temporary judicial office seek to impress someone by being rather macho in their sentencing. One gets this impression from time to time. It is an impression which I have discussed with my colleagues in the Criminal Appeal Court, some of whom rank even higher than I in the judiciary, and it is not a matter upon which there is much disagreement." -- Lord McCluskey, comments on 03.06.1997, opposing a bill giving a temporary sheriff the authority to impose the same sentence as a permanent sheriff (Lord Hansard's Home Page at Publications.Parliament.UK).


 Quote-of-the-day. "[L]et this be a lesson to those of you in high office with dreams of firing others for personal or political gain. It's not what you do but the way that you do it. Anyone can fire an employee who serves at their pleasure. But it takes a special cocktail of panache, spin, deceit, and denial to completely bungle the job, and still skate away unharmed." -- Dahlia Lithwick, Skategate -- Sarah Palin could teach Alberto Gonzales a thing or two about avoiding political scandal (Slate 10.11.2008).

 DWI judge drivers her BMW into trooper's car, is charged with DWI. Judge Curtissa Cofield, 59, is presiding judge of the Hartford community court. She frequently presides over DWI cases. And she's engaged in judicial outreach, lecturing school kids on such matters. Late the other night she drove her BMW into a state police Ford Crown Victoria that was parked on the right shoulder in a construction zone. Now she stands charged with DWI. More (Hartford Courant 10.12.2008).

 Judge sues top judges for 10 million. "Cape Judge President John Hlophe wants R10-million [as of today, one U.S. dollar = 9.48533 South African Rands] in damages from South Africa's top judges. Judge Hlophe is adamant the Constitutional Court and its justices must pay up for publicly claiming he had lobbied them for pro-ANC president Jacob Zuma rulings -- a move his lawyers say was 'deliberate and aimed at injuring our client's rights and forcing him to resign as a judge.'" But the top judges' lawyer says the controversial judge doesn't have a proverbial leg to stand on. More (IOL 10.12.2008). Further reading. Click here for links to some of my many postings relating to Judge Hlophe.


 Ex-judge is derided for referring to time on supreme court as 'expensive hobby.' The Supreme Court of Arkansas appointed members of a committee called "The Arkansas Judicial Compensation Committee." The committee's role, according to a report in the Arkansas Democrat-Gazette (10.12.2008), is to "evaluate the compensation of Arkansas judges and decide whether to recommend that the state increase their pay." The committee is "composed of attorneys, bankers and businessmen" and it "plans to lobby the Legislature for a pay raise in January." But now a state senate leader, Steve Faris, has released a letter deriding the proposal, using as ammunition a statement to the committee by a former SCOARK justice, Don Corbin, that his judicial career had been "an expensive hobby" and that he's paying for his kids' education out of an inheritance. In a letter to Corbin (but really to voters, since he provided the press with the letter), Faris said: "I would suggest you be more appreciative and mindful of the benefits and salary you are currently receiving." According to the Democrat-Gazette, justices "earn $139,821 per year, can retire after 25 years at 80 percent of their salaries and are allowed taxpayer-funded support staffs and work space." Faris says that, as paraphrased by the Democrat-Gazette, "almost any private-practice attorney would envy that job." Corbin now says he meant to say that it was his time as a legislator, not as a judge, that was "an expensive hobby." He also says he'd have been better off keeping his mouth shut and that he "realizes that his salary and benefits are much higher than the average Arkansan's." Comment. A cynic might say that the committee's role is not so much to figure out what fair compensation for judges should be but to legitimize a legislative lobbying campaign for a pre-existing belief that judges deserve a significant pay increase. Putting "attorneys, bankers and businessmen" on the committee sounds also like "stacking a committee," but then we're familiar with that in MN. See, my essay titled Annals of judicial selection: stacking appointment commissions. For a critical analysis of the standard arguments used by the judicial establishment in seeking pay raises (arguments that members of the media rarely subect to careful scrutiny), see, a) 'I could be making lots more if I were Michael Jordan' (BurtLaw's Law and Judicial Economics at BurtLaw's Law and Everything Else); b) Ten out of 10 pundits agree: Chief's Report on paltry pay was appalling (with links to other postings) (The Daily Judge 01.02.2006); c) The Chief Justice's annual harangue about his paltry pay (The Daily Judge 01.01.2007). Memo to judges. This is not a good year for well-paid judges to be pleading poverty and begging for pay raises.


 Book of stories from the Islamic courts. The book is titled Narratives of Truth in Islamic Law. It's edited by Baudouin Dupret, Barbara Drieskens & Annelies Moors. The reviewer, Khaled Ahmed, says: "This is a book that will interest someone who is studying the process of the Islamic courts in detail. The compilers have dug up old 19th century records from the courts in the Middle East and Maghreb to see how the case was legally built up, how the legal narrative was constructed out of the statements given by implicated parties, and how the court finally arrived at its verdict and got it implemented." More (Daily Times - Pakistan 10.12.2008). Compare and contrast. The late and prolific Yiddish writer, Isaac Bashevis Singer, who won a Nobel Prize for Literature, wrote a book I like about his father, a Rabbi, titled In My Father's Court - A Memoir (1966). I suspect it would be interesting to read the two books together.

 Held, sphinxy judicial decisions are not acceptable. "Observing that 'failure to give reasons amounts to denial of justice,' the Supreme Court has asked all High Courts to adduce reasons in their judgments. 'Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity with objectivity,' said a Bench consisting of Justices Arijit Pasayat and Mukundakam Sharma. 'The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx,' it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision." More (The Hindu 10.12.2008). Comment. Well-put.

 A Danish for breakfast at SCOKO? "The president of the Danish Supreme Court Torben Melchior will visit Seoul Monday for five days to share ideas with his Korean counterpart on judicial reform...He is visiting Korea at the invitation of Supreme Court Chief Justice Lee Yong-hoon, who visited the Danish court in September...." More (Korea Times 10.12.2008).


 Campaign contributions and judicial recusals at SCOWVA. "The justice system in West Virginia is broken and the United States Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court's attention...." The basic issue: Should SCOTUS decide whether due process may require a state supreme court justice in a state with contentious and expensive judicial elections -- i.e., a state unlike Minnesota -- to recuse in a case involving someone who made a significant campaign contribution. Full story (NYT 10.12.2008). Comments. a) The main case is Caperton v. Massey. We've posted a number of pieces relating to the facts and the controversy underlying the case. See, Chief loses primary election; controversial vacation photos did him in; Those darn vacation photos (with links to other postings). b) Amanda Frost of Slate weighed in the other day on the petition for certiorari: "[S]tates are not about to scrap judicial elections, nor should they necessarily. The problem is not that judges are elected; it is that states insist on treating elected judges as if they are immune to the conflicts of interest that come with running for public office." Amanda Frost, 'One Dollar for Every West Virginian' - The crazy judicial corruption case that the Supreme Court should hear (Slate 10.10.2008). Frost writes further:

To many legal observers, Caperton v. Massey is the poster child for scrapping judicial elections...But there are some good reasons to elect state court judges, starting with the fact that state court judges (unlike federal judges) are actually charged with making state law. State courts are 'common law courts,' meaning that the judges in those courts can shape the rules that govern disputes over contracts, torts, and property, at least when state legislatures have not passed legislation in those areas. As with any other lawmaking body, it makes sense to ensure that the state judiciary is accountable to the people subject to those laws. In any case, the many states that have elected their judges for centuries are not about to abandon that method because the ABA tells them to.

Frost proposes, inter alia, that "even if [states] don't go the public financing route, states should put an end to the current practice that leaves it up to an elected judge to decide whether he or she can be fair. c) The best way for judicial candidates to "stay pure" and avoid even looking impure is to "stand" for the office of judge rather than "run" for the office. When I ran for chief justice of SCOMN in the general election in 2000 against the well-financed appointee to fill the vacancy created by the former chief justice's early retirement (in MN judges typically retire before their term is up, thereby giving the governor the first chance at selecting a replacement), I refused all endorsements and contributions and limited my campaign's expenditures to under $100. See, my 2000 position paper on Endorsements and Contributions. d) Supporters of abandoning judicial elections in MN love to point to nasty big-buck elections in other states. They keep saying it's only a matter of time before the sky falls in MN. They must be disappointed because, as in previous years and as I predicted, this year's judicial races have exemplified "MN nice." As Minnesota Lawyer Blog reported last week, "There have been no political party endorsements, no big influx of special-interest money and no nasty attack ads. No appellate candidate reports raising or spending more than $40,000, which is low for an appellate seat even by Minnesota standards." More (Minnesota Lawyer Blog 10.03.2008). Perhaps the judicial establishment's real idea of an unfair judicial election in Minnesota is any one which the incumbent loses.


 Fun facts. From the "Fun Facts" segment of the 10.10.2008 episode of The Late Show with David Letterman: a) "There are a dozen custom gavel shops within a mile of the Supreme Court." b) "Tom Cruise has vowed to never return to Applebee's after being offered a child's menu." From the Letterman Archives:

a) Top 10 Questions about David Souter - 07.27.1990: "10. Can he lift a gavel?...7. Will he do everything in his power to change America's terribly restrictive speed limits thus allowing our most beloved television personality to drive as fast as he wants?...3. Why are he and Batman never in the same room at the same time?"

b) Top 10 Ways Souter Celebrated His Confirmation - 10.03.1990: "9. Bought Sandra Day O'Connor robe from Victoria's Secret. 8. Marched into judicial supply store and announced, "The gavels are on me!" 7. Cruised by Bork and Ginzberg's places with Aerosmith blasting...5. Made paper hat out of U.S. Constitution, filled it with beer, put it on...4. Paid his college dope-smoking buddies rest of hush money."

c) Top 10 Little-Known Facts About Clarence Thomas - July 10, 1991: "9. Once reprimanded for using gavel to tenderize veal...4. His legal writings make frequent reference to special episodes of Kate & Allie. 3. Has named his nine poodles after Supreme Court justices. 2. Designs his own robes."

d) Clarence Thomas' Top 10 Pick-Up Lines - October 9, 1991: "10. 'How about a little affirmative action?' 9. 'This robe is big enough for the two of us.' 8. 'The other judges don't understand me.'...6. 'How about a peek at exhibits A and B?' ...2. 'That's not a gavel.'"


 Lawyers and judges working together to drain your wallet? "Baldwin... argu[es] that American family law is a system of lawyers and judges working in cooperation to drain the wallets of divorcing couples -- an industry that preys on the vulnerabilities of the already vulnerable. 'To be pulled into the American family law system in most states is like being tied to the back of a pickup truck and dragged down a gravel road late at night,' he writes. 'No one can hear your cries and complaints, and it is not over until they say it is over.'" Alex Kuczynski, Divorce American Style, reviewing Alec Baldwin (with Mark Tabb), A Promise to Ourselves -- A Journey Through Fatherhood and Divorce (NYT Sunday Book Review 10.05.2008). Comment. Walter Olson, of the Manhattan Institute, whose Overlawyered was possibly the first must-read law-related blog, wrote an excellent piece in 1993 titled At Law: Divorce Court New York Style for City Journal in which he summarized some of the abuses, mostly by attorneys, that he believed were making divorce such a horrible, expensive experience for so many couples. He said:

The biggest culprit, the [Green] report says, is New York's vague equitable distribution law, passed in 1980. It broadened judges' discretion to consider a great range of factors in splitting up a divorcing couple's property.  That gives the two sides plenty of handles to litigate. "The vast amount of money that can be made because of this new law has become an inside joke among lawyers," notes the report. "Court Referee Steve Liebman said a divorce that would have cost $6,000 in total fees for both sides before 1980 now runs 'easily' $50,000."

"Most lawyers will prefer to leave no stone unturned, provided, of course, they can charge by the stone," Deborah Rhode of Stanford Law School has commented. "Tracing" assets requires elaborate inquiries into bank and business records. Both sides can call in forensic accountants, value-of-a-professional-degree appraisers, and other pricey expert witnesses, along with child psychologists and social workers to help with the equally vague new legal standard on child custody ("best interests of the child" -- as if anyone could agree on what that meant). As this area of the law has become "hot", big law firms have launched divorce departments; some play marital splits like any other high-stakes litigation.

I suspect the $50,000 figure would have doubled or tripled or quadrupled by now. The experience can be just as bad in courts in other states -- yes, including Minnesota, particularly in the metropolitan counties, especially Hennepin. In my own case, the divorce process, which was very expensive (and not just in monetary terms), dragged on for nearly five years, with the only issue being distribution of assets. A former judge told me that in a different county, Olmsted, where the Mayo Clinic is situated, the divorce would have been decided in six months. The 1992 report referred to as the Green Report was by Mark Green, Head of the N.Y. Dept. of Consumer Affairs (later defeated by Michael Bloomburg in his bid to be Mayor). In it Green had proposed treating divorce as a "consumer product" & regulating it. As Olson pointed out: "[I]t's no surprise to see Consumer Affairs taking an interest: For many families, divorce turns out to be the most expensive 'product' they ever buy. What's more, the customer dissatisfaction rate is undeniably high..."

If I remember correctly from reading it a few years ago, Green's report recommended considering the appointment of a court trustee/receiver of a couple's assets at the start of divorce proceedings as one way of dramatically cutting back on some of the abuses by lawyers that tend to drag out divorces and up the costs. One of the wisest lawyers I know, a former legislator, has long believed this. But then he's long been ahead of the curve.

Judge Learned Hand wrote, "I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death." Learned Hand, "The Deficiencies of Trials to Reach the Heart of the Matter," 3 Lectures On Legal Topics 89, 105 (1926). Based upon my personal experience as well as my nearly 30 years working for the judiciary, I believe that Judge Hand's "dread" was justified. But I regret to say that I don't think there's much hope for any significant improvement in "the system" as it relates to divorce. I don't think most lawyers and judges really realize the magnitude of the problem and the devastating consequences of the utter failure of lawyers, judges and our policy makers to deal with it in a meaningful way.


 Judge Martin Clark's latest 'thriller.' "[Clark] knows the law. He knows his people, how small-town life can be a solace and a cell, how the past informs and haunts, how men will never stop finding new ways to wound one another, family especially...[He] embraces the cupidity and stupidity of human nature, the innate complexities and contradictions, the fact that when times are at their worst, we are often not at our best. And how, at those times, it pays to know a good lawyer...." Allison Glock, Remain Silent, a review of Martin Clark, The Legal Limit (NYT Sunday Book Review 10.05.2008). Comment. I can't vouch for this one because I don't read books until they're "remaindered" or in a stack at the neighborhood library's twice-annual used-book sale. But I liked Judge Clark's The Many Aspects of Mobile Home Living (2000).

 Grand jury declines to indict judge who's suing sheriff. April Jill Walker is a part-time Houston municipal court judge; she's also African-American. Early on New Year's Day she called 911 to report suspicious activity in her neighborhood. Sheriff's deputies who showed up arrested her for impersonating a public official after she identified herself as a judge. The charge was dropped, and she joined a federal lawsuit against the sheriff's office. Then last summer deputies arrested her again, claiming she sped away from an investigation they were conducting and failed to stop after being signaled to do so. She claims they physically abused her when they arrested her and that the arrest was retaliatory. The deputies deny the allegations. Now a grand jury has declined to indict her. More (Houston Chronicle 10.10.2008).


 Judicial demographics and John Roberts. "The youngest [SCOTUS] Justice ever appointed was Joseph Story, 32 at the time of his appointment in 1812; the oldest was Horace Lurton, 65 at the time of his appointment in 1909...The youngest Justice appointed in recent memory was Clarence Thomas, 43 years old at the time of his appointment. However, the youngest Justice currently sitting is Chief Justice Roberts, who turned 53 in January 2008. The oldest current Justice, John Paul Stevens, turned 88 in April 2008. The oldest person to have served on the Court was Oliver Wendell Holmes, Jr., [who was 60 at the time of appointment and] who stepped down after turning 90." Demographics of SCOTUS (Wikipedia 10.10.2008). Esquire magazine, in a feature titled 75 Most Important People of the 21st Century (what a ridiculous idea for a list), includes Chief Justice John Roberts, classifying him as, relatively speaking, a "child jurist." Comment. Nixon & Sons have been especially adept at naming alumni of the Federalist Society Summer Judicial Camp to the federal bench, the cynical reasoning being that, given life tenure, if the President appoints 'em when they're young, the President's influence on the ideology of the bench likely will last longer. As for Roberts, he was technically impressive in the way he parried the Senators' questions during the confirmation hearings (hey, every class at Harvard Law School has a dozen or more who could impress in that way), but as C.J. he has yet to show any evidence that he's even fit to be, say, Justice Holmes' judicial valet.

 Traveling judicial dog'n'pony show rolls into OshKosh. "The Wisconsin Supreme Court is on the road in Oshkosh Tuesday and Wednesday...." More (WKBT 10.10.2008). Comment. They call it "Justice on Wheels" in Wisconsin.  I think the idea originated, or at least was popularized by, SCOMN. One retired judge characterized it, appropriately in my view, as a "traveling dog'n'pony show." For some of my views on judges going on the road with their "traveling dog'n'pony show," see, my comments and embedded links at Holding court in the great hall at Heidelberg College.



 Judge Karisma Kapoor insists she'll be honest, fair. Bollywood beauty Karisma Kapoor, who will be one of the judges on the upcoming season of the reality TV dance competition, Nach Baliye, insists she'll be both honest and fair. More (OneIndia 10.10.2008). Comment. Some are honest, some are fair, few are also beautiful. Karisma is -- I think you know it's true -- all three.

 Judging typos. The Boston Globe reports that Federal trial judge William Ditter, noting that attorney Brian Puricelli's paperwork was riddled with errors and typos, has denied Puricelli's request for $180,000 in fees for his work in connection with a successful federal civil rights suit, awarding him instead $26,000. More (Boston Globe 10.08.2008). Earlier. A different federal judge reduced Puricelli's fees for the same reason back in 2004. See, Adam Liptak, Judge Finds a Typo-Prone Lawyer Guilty of Bad Writing (NYT 03.04.2004). Comment. Without naming names, I recall that back in the 1990's a fairly prominent Twin Cities firm fairly regularly submitted carelessly-edited appellate briefs to SCOMN containing obvious typos and grammatical errors. Some so-called Super-Lawyers aren't as super as you might think.

 Dostoevsky and the redemption of the damned. "No sooner had the Soviet Union imploded than there reappeared, in full view, the [Russian Orthodox church], seemingly strengthened by its torments -- just as in Dostoevsky's novels murders and drunkenness, child-molestations, suicides and blasphemies actually quicken the faith of indelibly drawn, mired but redeemed characters." -- From A. N. Wilson, The Archbishop's Dostoevsky -- Why Rowan Williams is the best man for the job -- of appreciating the greatness of Dostoevsky (Times Literary Supplement 10.08.2008).

 An oldie-but-goodie -- from way before the 'Oldie-But-Goodie Era.' Genesis 4:13-15: "And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth; and from thy face shall I be hid; and I shall be a fugitive and a vagabond in the earth; and it shall come to pass, that every one that findeth me shall slay me. And the Lord said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the Lord set a mark upon Cain, lest any finding him should kill him...."


 The latest syndrome -- FAS. "False Apology Syndrome -- which is not yet found in the Diagnostic and Statistical Manual of the American Psychiatric Association or the World Health Organization's International Classification of Diseases, tenth edition -- is a...rich but poisonous mixture of self-importance, libertinism, condescension, bad faith, loose thinking, and indifference to the effects it has on those who are apologized to...." -- Theodore Dalrymple, False Apology Syndrome -- I'm sorry for your sins (InCharacter 10.08.2008). Further reading. On a syndromic trait of mine, see, my discussion of what I call MDGS, a/k/a "Masochistic Deferred Gratification Syndrome," in a Secular Sermon of mine titled "Dr. BurtLaw on 'ASN' & other disorders" (BurtLaw's Secular Sermons for Lawyers and Judges 01.11.2002) (scroll down).

 When the judge talks too much. "A Baltimore man's armed robbery convictions were overturned this week after the state's second-highest court said the judge tipped the trial in the prosecution's favor by asking too many questions of witnesses -- more than 125 of them. 'The trial judge, in our view, overly injected himself as an inquisitor through the testimony of the witnesses, the result of which was to unduly give the perception that he favored the State's version of the factual presentation,' the Court of Special Appeals wrote...regarding Antwan Derrell Smith's convictions...." More (Baltimore Sun 10.09.2008). Fuller report (MD Daily Record 10.07.2008).

 Group criticizes burning of judge's official residence. "A non-governmental organisation, the Access to Justice, has criticised the burning of the official residence of the Judge of High Court of Edo State, Justice Roland Amaize by unknown arsonists. The group added that the action must be investigated, saying that the development had strengthened the need to protect judges handling election cases...." More (PunchNG 10.09.2008). Comment. We here at the International Headquarters of The Daily Judge are also bold enough to criticize the burning of the official residences of judges; we, however, "also" (to quote Sarah Palin) condemn the firebombing of their unofficial residence. Other news about Nigeria/Nigerians. "An unidentified gunman has shot a Nigerian, Dube Egwuatu, in a London street for wearing a shirt with the image of United States Democratic presidential candidate, Senator Barack Obama." More (PunchNG 10.09.2008).


 Complaint is filed against SCOWIS' newest member. "The Wisconsin Judicial Commission has filed a complaint against Justice Michael J. Gableman for an ad that ran during the 2008 Supreme Court race...The complaint alleges Gableman released a television ad [during the campaign that] seemed to directly link the actions of his opponent, Justice Louis B. Butler Jr., to a sexual assault committed by one of Butler's former clients...." More (Wisconsin Law Journal 10.08.2008). Comment. We posted our views on the campaign in some detail (with links to other relevant postings) at Pointing fingers after Wisconsin's recent judicial election (The Daily Judge 08.05.2008).

 The judge may need the services of Rosemary Boxer and Laura Thyme. In June we noted that the gardener of Sir Richard Tucker, "for years one of the country's most senior judges, [was] heading for court in a row with his former gardener over poisoned plants...Police charged his former gardener with causing £500 worth of criminal damage to the garden, with the case set for full trial in August. The case has divided opinion in the picturesque village of Stanton, Gloucestershire...." More (UK Telegraph 06.29.2008). It was natural, I guess, for Sir Richard to suspect the former gardener, Edward Hancock, 45, because he had "sacked" him a few weeks earlier, "following years of tension with Lady Tucker that led her to tell her husband: 'It's either him or me.'" Now the gardener has been found not guilty in magistrates court: "They decided that Mr Hancock, who had worked for the judge for 24 years, had not intended to cause damage and had not been reckless. Mr. Hancock said that the only time he went back to the property after his sacking was in a secret attempt to fix the lawn after moss killer he had sprayed at Sir Richard's request turned it 'bluey.'" More (UK Telegraph 10.08.2008). Comment. As I said in June, one could "rip" an episode of Rosemary and Thyme from the bare events and allegations of this nonhomicidal dispute, adding a bit of imaginative fictional homicide to the brew to make it suitable for mystery-hungry PBS viewers. In case you haven't watched it, Rosemary and Thyme is an atmospheric British mystery series that follows two green-thumbed sleuths on their forays into the crime-infested gardens and estates that apparently litter the British countryside.


 Annals of romance-based revenge and the law. "A spurned wife who poisoned her cheating husband escaped jail today after he pleaded with a judge to show her mercy. Successful businesswoman Linda Lees, aged 45, laced her husband Paul's food with dangerous doses of tranquilisers three times and tried to kill herself while he was unconscious in her car. She used her anti depressant tablets to poison two takeaways and even fooled a waiter at an Indian restaurant into letting her lace his curry...." More (UK Daily Mail 10.08.2008). Comment. "Omnia vincit amor et nos cedamus amori" ("Love conquers all, therefore let us yield to Love") -- Maro Publius Vergilius Maro (10.15.70 BC 09.21.19 BC), later called Virgilius, and known in English as Virgil or Vergil. And see: "Hir mouth ful smal, and ther-to softe and reed;/ But sikerly she hadde a fair forheed./ It was almost a spanne brood, I trowe;/ For, hardily, she was nat undergrowe./ Ful fetis was hir cloke, as I was war./ Of smal coral aboute hir arm she bar/ A peire of bedes, gauded al with grene;/ And ther-on heng a broche of gold ful shene,/ On which ther was first write a crowned A,/ And after, Amor vincit omnia." Geoffrey Chaucer (1340 - 1400), Canterbury Tales, The Prologue (Lines 153 - 162).

 Judge Coffey revisited. "Six months after resigning as a New Hampshire Superior Court judge for shielding her husband's assets from state creditors, Patricia Coffey is once again the subject of judicial reprimand. The state Supreme Court's Judicial Conduct Committee says that Coffey most recently violated the judicial code of conduct by drawing a salary from a private company while she was collecting full judicial pay while suspended and under investigation...." Judge Coffey apparently has agreed she did wrong and is subject to censure. More (Nashua Telegraph - NH 10.07.2008).


 What's in a (committee) name? Recently, Kristyna Colleen Ryan, won the Democratic primary for a judgeship in ILL. She's unopposed on the general election ballot, apparently because GOPers knew they couldn't win even if they fielded a candidate in that district. Roy E. Hofer, a past president of the Chicago Bar Association, is irked -- and says so in an op/ed piece in the Chicago Tribune (10.05.2008) -- because Ryan ignored the bar associations by not seeking their evaluations/endorsements. He says Ryan would have been embarrassed by the results of the bar association review process. He seems especially irked because "[Ryan] and three equally unqualified wannabe judges devised a scheme to give themselves public credibility. They formed their own political action committee, called it 'Citizens for an Independent Judiciary,' and endorsed themselves. In Ryan's case, the ruse worked! Despite all the negative bar association evaluations, not being endorsed by the Chicago Tribune, and spending less than $6,000 on her campaign, Ryan pulled off the improbable by narrowly winning against two opponents, one of whom was an African-American woman found qualified by all but one bar association." Comment. Maybe I'm missing something, but why would she have submitted to a review process by the bar folks if it was clear to her, as it seems to be to Mr. Hofer, that she'd have been found to be unqualified? As for calling one's committee the "Citizens for an Independent Judiciary," why not? This is, after all, a game everyone can play -- not just the members of the judicial establishment, which is good at using such grand names for its own political committees or commissions, its own favored methods of judicial selection, etc. See, a) The 'Citizens Committee on the Preservation of an Independent Judiciary; b) Those 'blue-ribbon commissions' and 'task forces'; c) 'Reality check' on Missouri-Plan 'merit' selection commissions; d) Is ABA plotting a 'judicial coup'? e) 'Merit selection' in FLA; f) 'Blue Ribbon Commissions' all over the place, singin' the same tune. Hmmm; g) Law prof weighs in against plan to deprive voters of role in judge selection; h) Pal of judicial establishment questions motives of opponents of Quie's plan.


 Are female applicants more likely to get appointed judge in the UK? "Three women have been told they will become High Court judges over the coming year, the Judicial Appointments Commission has announced...Two other women QCs...are about to be sworn in. That will bring the total of new women High Court judges this year to five. Since only 11 applied, their success rate was 45 per cent. By contrast, men had only a 14 per cent chance of success, with 17 appointed from among 118 applicants...." More (UK Telegraph 10.06.2008).
http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3144959/Women-better-at-becoming-judges-than-men.html

 Annals of judicial secretaries -- paying the boss' gambling debts. "When the Judicial Council of the 5th U.S. Circuit Court of Appeals effectively suspended District Judge Thomas Porteous last month, it quietly shuttered his chambers and laid off his staff of five, including a secretary who played an integral role in the financial history of the disgraced judge. Rhonda Danos, described in private conversations as fiercely loyal to Porteous, lost a post she held in his front office for 24 years. Beyond the usual trappings of a secretary's duties, she paid some of Porteous' gambling and credit card debts and, according to testimony from one witness, delivered money to the judge from lawyers who had a case in his court...." More (Times-Picayune 10.05.2008). Further reading. Here are the results of relevant Google searches pointing one toward some of our many postings on judicial/legal secretaries: a) postings at Law and Everything Else; b) postings at The Daily Judge. See, among the many postings, BurtLaw's Legal Secretaries.


 An oldie-but-goodie from 'Secular Sermons for Lawyers and Judges.' Here's a secular sermon I posted on my pioneering law blog in a section titled Secular Sermons for Lawyers & Judges back in 2002:

Are drug courts just another fad? Here's a link to an interesting article [titled] "Rethinking Drug Courts" by Melissa Hostetler from Friction Magazine. The article, which is critical of the faddish creation of drug and other specialty courts,  in which the judge becomes part social-worker, prompts me to say that we live in an age when people aren't happy with who they are. Nowhere is this more evident than in the legal profession, particularly the judiciary. Who of us doesn't know scores of lawyers who wish they were doing anything but practicing law? Paradoxically, the law schools are filled with disgruntled nurses, teachers, social workers and others who want to become lawyers. No wonder, then, that many lawyers who become judges aren't comfortable being just judges. Thus, e.g., we have the not unusual phenomenon of the social worker turned lawyer turned judge turned social worker. Just focusing on judges, we see example after example of judge who wants also to be teacher, legislator, minor celebrity, author, social engineer, and/or corporate manager. Perhaps this dissatisfaction with the role of "just judge" underlies the judiciary's susceptibility to fashion and fad -- whether the fad be a) sentencing guidelines, b) mandatory continuing education for lawyers and judges, c) mandatory attendance by lawyers and judges at didactic seminars on the subject of diversity, d) mandatory contribution by lawyers to programs providing emotional and psychological support to lawyers suffering from alcohol or drug dependence or depression, e) the adoption of judicial "mission statements" (a fad that apparently began in the business world with companies like Enron, which had a very fine mission statement, indeed), f) the holding of court sessions in the public schools, g) expensive "retreats" at corporate conference centers, h) the establishment of specialized courts such as drug courts -- the list goes on. Thomas Wolfe wrote, perceptively, "She who is whored by fashion will be whored by time." There are some students of the judiciary who believe that the courts are in danger of, well, not being "whored" by fashion but let's say of being too concerned with being fashionable or "new" or "cutting edge," of forgetting why we have courts and judges. In a tribute to Edwin Arlington Robinson after his death, Robert Frost wrote: "It may come to the notice of posterity...that this, our age, ran wild in the quest of new ways to be new....Robinson stayed content with the old-fashioned way to be new." Our judges could do worse than "stay content with the old-fashioned way to be new." I hear a judge say, "What are you talking about?" I reply, "That you have to ask suggests the scope of the problem." Sometimes I think ordinary people have a better understanding of the proper role of judge than most judges do.... (03.18.2002)


 Voters get a choice for chief of SCOMI. Diane Marie Hathaway, a circuit judge for 15 years, is challenging incumbent Clifford Taylor for the chief justiceship at SCOMICH. Hathaway says that "Taylor 'needs to go' because the Republican nominee consistently sides with corporations and insurers at the expense of workers and ordinary people." Taylor denies he's "for" anyone and says he decides cases according to law. More (Chicago Tribune 10.04.2008). Comment. The court, with five of the seven justices, including Taylor, appointed by GOP governors, appears from recent public airings of their differences to be a deeply divided court. Recently, the judges came together and, in a 6-1 ruling, properly sided with Michigan constitutional "protectors" against "reformers" in keeping an outrageously-bad 19,000-word constitutional "reform" proposal off the ballot. See, SCOMICH sides with constitutional 'protectors' against 'reformers' (The Daily Judge 09.09.2008), and A coup d' judiciaire masquerading as 'reform'? (The Daily Judge 06.26.2008). But the judges have had a number of public "scuffles": See, a) Michigan Supremes are at it again -- guess the vote; b) Annals of judicial colleageality: a frictionalized, fractured supreme court; c) Calling a judge a 'jackass'; d) Latest on Michigan's fractured Supreme Court; e) What's happening at SCOMICH? Is it 'civil war' or 'insurgency'? All I can say is this: in my experience, it's unfortunate when judges on an appellate court can't get along with each other, but it's worse when they get along too well, turning a court into a Teresa Brewerian mutual admiration society. "Colleageality" among members of a large multi-judge court is thought to be a virtue. "Colleageality," like most clichés, is used as a substitute for thought. In my opinion, if it is a judicial virtue, it is an amorphous and vastly overrated one. An appellate court that overdoes the "colleageality bit," with all the judges thinking alike and erroneously, may be prone to reverse that which is right and affirm that which is wrong. In other words, "the crowd" isn't always right. In an era when many, many appellate judges have assigned too great a weight to this amorphous supposed virtue that they refer to as "colleageality" (pronouncing the word as if it's a fresh word they just coined), I find it refreshing whenever I read of a judge who puts principle, openness, and accountability above bland colleageality. Our Founding Fathers were wiser than to get suckered in by any such concept. They knew that diversity of opinion and respectful arm's-length disagreement, even among colleagues, are the lifeblood of a creative, free, democratic society. Several years ago, during a break at a CLE seminar, I overheard 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, was that even experienced students of the court's opinions were unable to discern any rational pattern to the court's jurisprudence. Another student of that court has described its opinions as "bland." And, for what it's worth, I agree.


 Should judges head 'inquiry commissions'? "There have been some 450 public inquiries held in Canada since Confederation, former Ontario chief justice Roy McMurtry told the audience yesterday. There has...been much talk of late that appointing judges to head these commissions could compromise the independence of the judiciary, and suggestions the work should instead be farmed out to legislative committees, a common approach in the United States...Associate Chief Justice Dennis O'Connor, who headed [two such]...said judges should get involved in inquiries only if there's an important public issue at stake. 'If judges are going to do it, judges should behave like judges,' he said. 'Behaving like a judge is not going out and having press conferences.'" More (Toronto Star 10.04.2008). Comment. I've posted a number of critical pieces on ex-justices serving in quasi-judicial roles. See, a) Annals of ex-judges in quasi-judicial roles -- 'special litigation committees'; b) Judge named newsmagazine's Person of the Year? c) Federal court slams judge over conduct as head of public inquiry into scandal; d) Should retired top judges be barred from doing ADR, heading commissions? e) Does ADR need reining in?


 The curious Texas institution of 'county judge.' A couple years ago I posted this excerpt from a Texas newspaper:

Yet another kind of 'judge,' Texas's 'county judge.' "While sheriffs in Texas wear cowboy hats, county judges wear a wide assortment of hats. They serve as the chief executive officer and chief financial officer for the county. They preside over a five-member commissioners court, which has budgetary and administrative authority over county government operations. County judges handle such widely varying matters as hearings for beer and wine permits and hearings on admittance to state mental hospitals. They're involved in probating wills and economic development. They can even perform marriages...." Calculating, judging, soothsaying all part of county judge's duties (Waco Tribune-Herald 02.26.2006).

Today I came across an interesting obit of a 93-year-old fellow named Winston Reagan, who in 50 years of public service "served two decades [1970-1990] as Henderson County's county judge." These are among the interesting tidbits in the obit about what kind of "county judge" Mr. Reagan was: a) He was a "people judge," who "always wanted to be there for the people and the employees," "would go to bat for the employees" (i.e., my kind of administrator). b) He worked to renovate the historic courthouse. BTW, respecting and saving historic courthouses is something Texas leads the nation in doing. See, my essay on historic preservation, The failed campaign to save a historic courthouse from demolition. c) "He always made sure the courthouse was neat and clean." Hey, I like a clean courthouse and like it when the cleaners get credit. On the latter point, see Clint Stephens, courthouse custodian -- and more, and my three essays that follow the posting: i) "Might Mr. Stephens' flowers lead to better government?" ii) "Longtime courthouse janitor saunters into retirement," and iii) "Justice Todd and the janitors of the world." d) He "looked out for the chickens (yes, the chickens) on the courthouse lawn": "It is unclear if the chickens were placed on the lawn by Reagan, but one thing is certain -- he didn't want anything to happen to them. A former county clerk overheard Reagan on the phone telling someone, 'You can't have those chickens, those chickens belong to the county.'" More (Athens Review - TX 10.04.2008).


 Judge gets reprimanded for having mixed baseball collecting with prosecuting. The judge in question is Matthew Thornhill, an associate circuit judge in St. Charles County, MO. Back when he was a prosecutor he and a defense attorney were negotiating a plea deal for a woman named Hart who was charged with felony forgery. Told by defense counsel that Hart's godfather was Terry Bradshaw, the Pro Football Hall-of-Fame quarterback, Thornhill a) asked defense counsel if he could have Hart get Bradshaw to autograph a baseball (not a football!) for his collection of autographed baseballs, and b) told defense counsel that if police agreed he would reduce the felony charges to misdemeanors. According to a story in today's St. Louis Post Dispatch (10.04.2008), "After Hart produced the [signed] baseball -- [the signature] later turned out to be a forgery -- the charges against her were reduced. Thornhill told [defense counsel] he didn't want the baseball and has denied it affected how he handled the case. The case later was given to another prosecutor and eventually the charges were dropped." The incident all "hit the fan" after Thornhill was elected judge but before he was sworn in. Although he immediately resigned as prosecutor, he later was sworn in as judge and continues to serve as judge. We now learn, in the above-referenced news report, that SCOMO has reprimanded Thornhill for the baseball incident.

 Two Louisiana judges get prison for bribe-taking. The judges in question are Vernon Claville, a former juvenile court judge, and Michael Walker, a former district court judge. After a five-year (!) FBI investigation, during which a government informant paid them bribes, they were formally accused of "racketeering" offenses. Claville, who was convicted of "accepting cash for reducing bonds and lifting holds," was sentenced by the federal district court judge to serve five years in prison and to pay a $165,000 fine. Walker, who was deemed more culpable, was sentenced to 10 years and a $250,000 fine. More (Shreveport Times 10.04.2008).

 High court censures retired judge, bars him from judicial office. "The state Supreme Court censured a retired Trenton Municipal Court judge for his behavior and ordered that he never be appointed to judicial office again. Lawson McElroy, who retired in April, had been a Municipal Court judge since he was appointed to the bench by Mayor Douglas Palmer in July 2000. Earlier this year allegations surfaced that McElroy had practiced law while he was a full-time judge and that he made 'disrespectful and insulting' remarks to the court clerk...." More (Times of Trenton 10.02.2008).

 Did 'judge's meddling' cost president his job? "The 'political meddling' by Judge Chris Nicholson that cost former president Thabo Mbeki his job should never have occurred. This is the contention of Jacob Zuma's prosecutors, who have slammed the judgment that declared Zuma's prosecution for corruption invalid -- and led to Mbeki's recall -- as being riddled with legal and factual errors...." More (Independent - South Africa 10.01.2008).


 Annals of biased Swede 'judges.' "The Nobel prospects of Philip Roth and Joyce Carol Oates may have been dashed after the prize's top jury member described American writing as insular and ignorant. Permanent secretary of the Swedish Academy Horace Engdahl told the Associated Press that U.S. writers were 'too sensitive to trends in their own mass culture,' which he said dragged down the quality of their work...." More (Guardian UK 10.01.2008). Comments. a) How'd you like to have a guy with his biases judging your case? But let's not overreact. Those of us in Minnesota are familiar with proud Swedes, and 'Judge' Engdahl sorta sounds like "your typical proud Swede" to me. We Norwegian-Americans always chuckle when an unjustifiably-proud Swede starts pontificating about the greatness of things European, things Swedish, etc. You see, we know "the real truth" about Sweden and the Swedes -- including Swede judges. :-) That's why we always take care to caution good folks not to confuse Norwegian judges, magistrates, etc., with Swedish ones. See, Those 'randy' Swede (not Norwegian) judges (The Daily Judge 06.17.2005). b) Our view of the Nobel Prize in Literature? The Swede judges have ignored so many great writers (like Robert Frost, Wallace Stevens, F. Scott Fitzgerald, Thomas Wolfe, etc., etc.) and picked so many duds (often writers who hate America) that about all one can say about their prize is that it doesn't have half the impact on sales as, say, a book's being picked by Judge Oprah for her Book Club readers to read and discuss. c) BTW, under my acclaimed proposal to annex (rather than invade) backwater foreign countries, Sweden -- primarily because of its attractive babes -- is in line to be our 53rd state. See, commentary at posting titled U.S. opens newest national park, in Norway. Once we've accomplished that, we aim to install Horace Engdahl in a new post created just for him, Curator, at the Stockholm Branch of the Library of Congress, of the Carl Sandburg [a Swede] Collection of Great American Literature. Further reading. "[James] English[, in The Economy of Prestige (2005 - Harvard U. Press),] interprets the rise of the [literary] prize as part of the 'struggle for power to produce value, which means power to confer value on that which does not intrinsically possess it.' In an information, or 'symbolic,' economy...[w]hat makes [words] valuable is the recognition that they are valuable. This recognition is not automatic and intuitive; it has to be constructed. A work of art has to circulate through a sub-economy of exchange operated by a large and growing class of middlemen: publishers, curators, producers, publicists, philanthropists, foundation officers, critics, professors, and so on. The prize system, with its own cadre of career administrators and judges, is one of the ways in which value gets 'added on' to a work...." -- From Louis Menand, All That Glitters -- Literature's global economy (The New Yorker 12.26.2005). Updates. a) "America should respond not by imploring the committee for a fairer hearing but by seceding, once and for all, from the sham that the Nobel Prize for literature has become...What ...distinguish[es] the Nobel Committee's favorites...is a pronounced anti-Americanism." Adam Kirsch, Nobel Gas -- The Swedes have no clue about American literature (Slate 10.03.2008). b) The winner of the 2008 prize is, you guessed it, "Jean-Marie Gustave Le Clézio, a French novelist, children's author and essayist regarded by some French readers as one of the country's greatest living writers." More (NYT 10.09.2008).


 Should we rely on judges' dress to uphold 'the majesty of the law'? "Too many of our institutions, notably parliament, have been undermined and degraded to the point where those who once held them in awe now treat them with derision. Sometimes, how you look does matter." -- From Philip Johnston, Judges' dress should uphold the majesty of law (Telegraph UK - Opinion 10.01.2008), commenting on the fact that "From today, judges hearing civil cases in the High Court and the Court of Appeal will no longer wear wigs. Furthermore, they will no longer don the scarlet robes that gave them the awe-inspiring sobriquet of 'red judge.'" Further reading. a) On courthouse fashion, see, Judges to toss wigs, get new 'Star Trek' gowns (The Daily Judge 05.13.2008); Latest developments in courthouse fashion (with included links) (The Daily Judge 01.13.2008). b) Among our postings on the purported "majesty of the law," see Have you ever 'retreat[ed] behind the figleaf of ersatz stare decisis'? (The Daily Judge 05.29.2008). c) Consider, also, this by Anatole France "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Anatole France, Le Lys rouge ch. vii (1894) (S.H. transl.) d) What actually is "The Majesty of the Law"? It is the title of yet another unrevealing book by former SCOTUS Justice Sandra Day O'Connor, The Majesty of the Law -- Reflections of a Supreme Court Justice (2003), described by Jeffrey Rosen as a "bland collection of speeches and law review articles." Jeffrey Rosen, Judicial Exposure (NYT 01.29.2006). For my views on the blandness of the majestical princes and princesses of the law, see, my comments at Jeffrey Rosen on judicial memoirs (The Daily Judge 01.29.2006). e) How "majestical" is the law? In the 1915 silent film, 'Majesty of the Law,' summarized here and here, Judge Randolph Kent's son, Jackson, takes the rap to protect Lloyd Fairfax, his fiancée's bro. Judge Kent, who apparently sees nothing wrong with presiding over his own son's prosecution, "sorrowfully...honor[s] the letter of the law" and sentences poor Jackson to the clinker. But -- and this I guess is the magical, majestical part of "the law" -- the truth eventually comes out and stern Judge Kent and his honor-loving son Jackson share a hug.


 Judge resigns because of sleep disorder. "Battling a sleep disorder that he said is progressively getting worse, District Court Judge W. Michael Ryan[, 62,] has tendered his resignation...Ryan said he suffers narcolepsy-type symptoms that have caused him to fall asleep unexpectedly during the day. Because of his illness, he has been unable to drive a car for the past five years. 'I don't want to go through another winter of taking buses,' he said... In addition to his sleep disorder, Ryan cited the recent reappointment of Judge Robert A. Mulligan to a five-year term as head of the state Trial Court as a reason for his early departure. 'It portends bad times for the Trial Court,' he said...." More (The Republican - Northampton, MA 10.01.2008). Comment. On the benefits of nap-taking by judges, see, my comments at Judicial economics (The Daily Judge 11.09.2005). See, also, this recent NYT piece on the benefits of "power naps" (NYT 09.28.2008). The research prove what my Grandpa Otto Herfindahl knew many years ago. In the winter, at least, when we humans experience "carnivore lethargy," he regularly took a "kvile ete midten," or rest (nap) after lunch. He even did this in the summer on hot days, lying on the cool floor to rest and cool off briefly after a hard morning of work in the field. See, "The Billable Nap" at BurtLaw's Law and Economics (10.31.2001) (scroll down). I learned the benefits of naps when I studied as a freshman at S.M.U. in Dallas during the 1961-1962 school year. Of the three post-secondary schools I attended (one year at S.M.U., two years at the University of Minnesota, and three years at Harvard Law School), S.M.U. was the "hardest" -- and yet, paradoxically, I did my best there. I did so by studying like a fiend and sleeping six hours a night. Every day after dinner, from 6:30 to 6:45, I'd take a 15-minute nap. I found I could fall asleep instantly, and I typically woke a few seconds before my clock radio went off. BTW, Judge Ryan says he benefited from naps but recently things have been too hectic to fit them in.

 The scoop on TV's newest judge. Her name is Jeanine Pirro and she has a controversial past. See, Tom Robbins, The Real Soap Opera Behind Daytime TV's Newest Judge (The Village Voice 10.01.2008).



 History of political campaign blogging. Some credit the Howard Dean presidential campaign in 2004 with maintaining the first campaign blog. Others cite as the first campaign blog one maintained by a congressional candidate in 2002. Actually, one has to go back earlier, to 2000. I was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000. I began planning my first law blog, BurtLaw's Law And Everything Else, one of the pioneering law blogs, in 1999, but I delayed starting it until after the 2000 general election. My 2000 campaign website,  the no-longer-extant VoteHans.Com, contained a personal campaign blog (weblog or web journal), i.e., a blog actually written and maintained by the candidate, not by some staffer. I like to think it was the first campaign blog (a/k/a weblog or web journal), although it's quite possible someone else independently came up with the idea and executed it contemporaneously in 2000 also. Because most "web archivers" were not in business in 2000, there has been no web record of my campaign website and campaign blog. For archival purposes and in the public interest, I have reproduced and reposted as near as I can, given software changes, the backed-up contents of what was VoteHans.Com as it appeared in 2000. Here are the links: Campaign Home Page; Campaign Journal; Earlier Journal Entries; Even Earlier Journal Entries; Earliest Journal Entries; Endorsements and Contributions; Mandatory Retirement of Judges; Judicial Independence and Accountability; Questions and Answers; BRH Speech; Emerson for Judges; Quotations for Judges; MN Const. Art. VI; About BRH.




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   U. Mich. L. Library's Alito links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Samuel A. Alito, Jr. They are categorized and are arranged in reverse chronological order within each category.

   U. Mich. L. Library's Roberts links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by John Glover Roberts, Jr.  They are categorized and are arranged in reverse chronological order within each category.

   Slate's list of Judge Roberts resources. Slate has created a John Roberts Roundup, a regularly-updated page of links to some of the better web postings relating to Judge Roberts. Click here.

   U. Mich. L. Library's Miers links. The University of Michigan Law Library has compiled a webpage devoted to links to information about and writings by Harriet Ellan Miers.  They are categorized and are arranged in reverse chronological order within each category.

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