The Daily Judge
© 2005 Burton Randall Hanson
       Archives - 12.18.2005 - 12.31.2005
"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."

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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 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, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

    Credibility of Junkanoo judging system questioned. "Some Junkanoo fans, upset over the results of the 2005 Doyle Burrows Boxing Day parade, are calling for foreigners to judge the event, saying Bahamians who naturally tend to have an affinity for a particular group, cannot be objective. The Valley Boys were declared the winners of the parade followed by One Family, Roots, the Saxons, the Prodigal Sons and the Music Makers...." More (The Nassau Guardian 12.30.2005). Comments. a) While we have no personal knowledge of where the bona fides lie in re the Junkanoo judging system in use at the Boxing Day Parade, we here at the International Headquarters of The Daily Judge applaud all efforts to extend The Rule of Law beyond its traditional confines to institutions as deserving and as diverse as The Family, Junkanoo, Carcass competitions, and Platform Diving. b) Earlier this week we posted an entry titled PA Supreme Court, under fire, will hear judicial pay-raise lawsuits. In the Philadelphia Inquirer story to which we linked it was said: "Almost immediately, questions were raised about the potential conflict of interest with a court that benefitted from the July pay raise and would stand to benefit from its decision. Some experts said the court would likely apply a legal standard that says if all judges eligible to hear a case have a conflict, the necessity for a decision prevails over the conflict of interest." And now, serendipitously, as if dropt into our blawg from Judicial Heaven (where presumably Holmes reigns Supreme), we find the solution to the PA Supreme's quandry: Switch places with the Judges of the 2006 Doyle Burrows Boxing Day parade -- let them decide the PA judicial salary-raise cases, and let the PA Supremes travel to the Bahamas to judge Junkanoo. (Sometimes we amaze ourselves.)

    Hi ho, hi ho,/ it's off to court I go,/ to judge, to judge,/ tra la, tra la.... "A Kingston judge faces censure by a state committee after appearing in court as a lawyer and judge while drunk. The state Commission on Judicial Conduct, in a ruling issued Thursday, found that Judge James Gilpatric, an alcoholic, had abstained from drinking for 10 years before a relapse on Sept. 1, 2004. On that day, he appeared in court as an attorney and later as a judge. An intoxicated Gilpatric was unable to preside in court and was relieved of his duties...." More (Newsday 12.30.2005). "The commission pointed out cases of judges who have been removed for being drunk on the bench, but one had been belligerent and the other used vulgar, racist and sexist language and brandished a knife." Source (Times Herald-Record 12.30.2005). Comment. We don't mean to make light of a serious illness or of the judge's temporary lapse in judgment, which he followed by immediately entering a 21-day treatment program. Indeed, we think the judge's "sin" on the day in question was, on the grand scale of "judicial sins," pretty minor. Two of the members of the commission, thinking perhaps like us, said they thought he ought not be publicly disciplined. We remember with great affection a doctor we knew who, on his day off, responded to a call to help out in an emergency. He did so while technically under the influence -- and, or so a nurse who was present was said to have said, he performed more skillfully than most doctors do when they are sober. Which reminds me of the day I caddied in a golf tournament in a foursome that included one of MN's greatest amateurs. He carried booze with him and the more he drank, the farther and more effortlessly he hit the ball. I later had the privilege of working with him after he quit drinking. Whereas he was brash and cocky that day on the course, in my presence he was subdued and kind and gentle and modest and fatherly. Both men of whom I have spoken are among the "fathers of my spirit" and the examples of both are among the many reasons I am hard on some sins but soft on sinners.

    Internat'l disputes funneling into S. FLA courts. "A financial feud between members of Guatemala's prominent Gutierrez family underscores a growing trend: South Florida is emerging as a choice venue for international legal disputes, especially for cases involving the neighboring Latin American and Caribbean region. Lawyers link the trend partly to South Florida's role as a financial and business hub for the Latin region...." More (Sun-Sentinel 12.30.2005).

    Clarke County, AL courthouse is insured against attack by foreigners. "Clarke County [Alabama] buildings and property will be insured in 2006 against foreign terrorist attacks by groups such as al-Qaida or the Palestine Islamic Jihad, county commissioners decided on Tuesday. Several commissioners in the sparsely populated county questioned whether the $7,000 annual premium was the best use of public funds, but ultimately they cast a unanimous vote to purchase the insurance...." More (AL.Com 12.29.2005). Comment. This apparently-true story reminds me of the satirical "news story" in The Onion dated 10.03.2001, Security Beefed Up at Cedar Rapids Public Library, reporting on Cedar Rapids, Iowa Library Director Glenda Quarles' expression of concerns about foreign terrorists attacking their library: "As caretakers of the most prominent public building in the second largest city in Iowa, this library can no longer afford to take chances."

    Quote-of-the-day. "The responsibility of a judge is justice, not pleasing governments." - a statement in 1984 by Herbert J. Stern, the former federal federal prosecutor and then federal judge "who was appointed yesterday to monitor the finances of the University of Dentistry and Medicine of New Jersey...." More (N.Y. Times 12.30.2005).

    Family court judges have become 'quasi-legislators.' "Family courts are accused of promoting 'institutional injustice' in a report today from the think-think Civitas. Its author, Martin Mears, says the Human Rights Act has 'made the courts into quasi-legislators'...'In particular cases the justice applied by the courts would not be recognisable as such to anyone else,' Mr Mears continues...'There is a deep pro-wife bias, with every single presumption in her favour...' [Morover, 't]he costs of matrimonial litigation are wholly disproportionate and occasionally, as even the courts admit, outrageous.'" More (Telegraph UK 12.30.2005).  

    Best judge is she who... "Do you know who is the best judge ? The answer to this tricky question was provided by Patna High Court Chief Justice J. N. Bhatt while addressing the law students on the Patna University campus here on Thursday evening. Amidst laughter Bhatt said the best judge was one who is least known and who speaks the least...." More (Times of India 12.30.2005). Comment. As with all "truths," there are exceptions and countertruths. One of the best trial judges I ever saw in action was the late Judge Stanley D. Kane, of Hennepin County, MN District Court, who managed to take charge of the courtroom without ever becoming bossy or obnoxious. He always spoke firmly but gently, calmly, reasonably. People knew he'd listen to them but he wouldn't listen to nonsense. I never witnessed him raise his voice. He never had to raise it. And then there is...Judge Judy. I don't know if she usually says more than the litigants or if it just seems so as the result of editing by TV people who know that people tune in to watch her shout at people. I'd like to see a TV judge sometime who realized that quietly giving a liar/perjurer a little rope makes for true entertainment when the liar/perjurer proceeds to hang himself with it. Judge Bhatt's truism reminds me of a similar truism from sports, where the best refs are those who, like Judge Kane in his courtroom, don't always insinuate themselves into the game or "take it away from the players" but who, by the same token, never let things get out of hand.

    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.

    Judges sanctioned for DUI.  a) "Superior Court Judge Donald R. Alvarez was admonished Tuesday by a state judicial agency for failing to report a drunk-driving conviction last year...Alvarez said he intended to notify the agency after meeting the conditions of his probation and apologized for the incident, according to a commission report...." More (L.A. Times 12.29.2005). b) "A panel of state appellate judges reprimanded Ohio Supreme Court Justice Alice Robie Resnick on Wednesday, saying her drunken driving conviction violated the state's judicial code of conduct...." More (Akron Beacon Journal 12.29.2005).

    Danes give money to 'Nam for judicial reform. "The Danish Government pledged to grant around 6.5 million USD to help Viet Nam carry out the third phase of its legal and judicial reform project...[B]y accelerating the participation of local people in the law making process, the third phase of the project will help improve the capacity, quality and efficiency of the National Assembly Office, the People's Supreme Court, the People's Supreme Procuracy and the Bar Association under the Justice Ministry...." More (Viet Nam News Agency 12.29.2005). Comment. Apropos of nothing, a) there's a township near my hometown that was settled by the Swedes, the Norsks, and the Danes, and it's called "Swenoda," and b) there was a joke question that circulated in my hometown in the 1950's: "Are you Norsk, or Dansk or Skunks?" If the Danes' initiative becomes wildly successful and Denmark in effect colonizes Viet Nam, the new name for Viet Nam might be "DaNam."

    Using text-messaging to get offenders to pay up. "A pilot scheme which sent threatening text messages to fine dodgers persuaded most of them to pay up, it has been disclosed. Magistrates' courts in Staffordshire sent texts which read "Pay up or get locked up" to offenders who had defaulted on fines...." More (This is London 12.29.2005).

    Yes, they have courts in the Cayman Islands. "The Governor, Mr. Stuart Jack, learned first-hand how cramped are the environs in which the hard-working and dedicated personnel of the Cayman Islands Courts function on a daily basis. At the invitation of Chief Justice Anthony Smellie, Mr. Jack toured the Courts premises on Thursday 15 December...." More (Cay Compass 12.29.2005). Comment. We here in Minnesota at the International Headquarters of The Daily Judge are thinking of the Cayman Islands as a possible site of our winter headquarters. Might there be some tourist development funds available to lure us there? We might be willing to run a one-inch by one-inch block text ad for the Cayman Islands in exchange.

    Probate courts under scrutiny. On 12.05.2005 we posted a link to a story at MySanAntonio.Com titled Probate courts in Texas come under scrutiny about a costly guardianship battle pitting New Jersey and Texas against each other, as well as brother against sister, with aged wealthy mother being held hostage in the middle in a state where she reportedly says she doesn't want to live. Yesterday, 12.28.2005, the NYT published a detailed report on the case that prompted the earlier story. It's worth a read. Today we learn: "In a sharply worded order that spanks the warring children of Lillian Glasser, the 85-year-old New Jersey woman mired in a nasty Texas probate struggle, U.S. District Judge Fred Biery took over a chunk of the complex case Wednesday...Calling the dispute a 'legal fratricide' between sibling rivals that has already consumed millions of dollars in attorneys fees, Biery's order said 'the end the creation of a Glasser chess game in which Mrs. Glasser has become a pawn.'" More (MySanAntonio.Com 12.29.2005). Comment. Thus far, at least according to the Times story, litigation over the guardianship of the woman, who has a fortune estimated at $25 million, has cost $3 million, about 12% of the value of the estate. Looks like a lot more of it may be eaten up before the thing is resolved. It's been 135 years since Charles Dickens died, yet some of the sorry stuff that he wrote about -- fortunes getting eaten up by legal fees in protracted legal disputes over guardianships, settlement of estate disputes, etc. -- still is happening. When I ran for statewide judicial office here in MN in 2000 I said I wasn't particularly proud of my profession, the legal profession. Nothing has happened to change my opinion since then. But I think the courts as well bear responsibility when this sort of thing happens. The federal judge's order yesterday focuses blame on the siblings. Methinks the entire legal system shares in the blame.

    Arlen is for judicial independence, BUT... Speaking to reporters in the very courtroom where Saddam et al. are being tried, Arlen Specter, Chmn. of the U.S. Senate Judiciary Committee, said he thought the trial judges ought to hold Saddam in contempt and, if needed, banish him from the courtroom. "'I have been disappointed the way the court has permitted Saddam to dominate the proceedings, and I respect Iraqi sovereignty, and I respect judicial independence, but it's also a fair comment to evaluate what is going on,' Specter said before a meeting with the trial judges. 'The evidence is there to portray to the world exactly what has happened here,' Specter said. 'You have a butcher who has butchered his own people, a torturer who has tortured his own people...And that evidence ought to be presented in a systematic way.'" More (Buffalo News 12.28.2005). Comment. In other words, he's really saying, "Judges, start following the script we gave you for the show, ah, er, fair trials. He's guilty. Let's get a leg on." One should never be shocked at the arrogant clumsiness of Americans abroad, which is why so many people justifiably dislike this country. Earlier entry. Is trial of judge charged with presiding at show trials itself a show trial?

    Arizona becomes a sunshine state in re judicial complaints. The Maricopa County County Attorney's Office asked the Arizona Supreme Court to make public all complaints filed against judges, even transparently meritless ones that are dismissed, with the names of judges included. The Court agreed, in part: early in 2006, probably after its meeting in March, the state's commission on judicial conduct will post almost everything on its web site, including dismissed complaints, but it will delete judges' names from dismissed complaints. "Most complaints [83% of the 308 filed in 2004] are dismissed because the issues really belong in appellate court rather than before the commission...The Web site will...contain all of the scanned documents pertaining to all discipline handed out [which heretofore has been publicly available]. Those will include the names of judges...." More (East Valley Tribune 12.28.2005). Link to commission's website. Comment. Congratulations to Arizona. This is in line with what I have been long urging. Instead of giving us real openness, some courts have been pushing a sort of managed openness, which is an oxymoron. One way they do this is through the hiring of "court information officers." We're not sure of the mandated role of these "information officers." But in many states, the supreme courts have hired them to serve primarily a "p.r." role. I have opposed that as a waste of taxpayers' money. If the courts were serious about providing real information to the public, they would strive for real openness, not faux openness, which sometimes goes by the name of "judicial outreach." In a 2001 piece titled Government records online (scroll down), I argued for greater transparency/accountability, on the internet, of expense-account spending by judges & other matters:

In Minnesota the court system is spending millions of dollars (I think too much) to develop a state-of-the-art statewide computer system that, I think, holds great promise for openness in government, provided the ordinary people -- you and I -- insist that the system be used for it. I foresee, for example, citizens demanding that the court put its financial books and accounts online -- specifically, the detailed budget, not just the "lite" version the public and legislators are shown. This would include the name and salary of every court employee, the unit-by-unit amounts spent on this or that, the expense-account filings of each judge, the daily calendar of each judge, etc., etc.

See, also, my 2000 essay, BurtLaw on Judicial Independence and Accountability as well as other entries that are scattered throughout this blog and BurtLaw's Law and Everything Else.

    PA Supreme Court, under fire, will hear judicial pay-raise lawsuits. Last July the PA Legislature enacted a controversial pay raise for legislators and judges. Chief Justice Ralph J. Cappy came under fire for playing a role in drafting the legislation and for vigorously defending the raises. The raises, along with judicial expense account revelations, led to a campaign against the two justices who were up for retention in November. One of them lost. Now the Court has agreed to decide two lawsuits, one challenging the raises, another by lower court judges challenging repeal of the raises. Cappy is recusing. "The [one] case will examine constitutional questions in the [pay-raise] act that have been the subject of lawsuits before, including whether the pay-raise law reflected the bill's original purpose, that legislation be brought before a committee before it goes before the full chamber, and that bills pertain to a single subject and be considered on three separate days...[The second case concerns] a state law that says judges' salaries can't be cut unless the salaries of all state officers are reduced at the same time...." More (Philadelphia Inquirer 12.28.2005). Earlier. For many of my earlier entries, see, Justice loses retention election and embedded links.

    Some judges using ankle-bracelet alcohol intake detectors. "A few judges around South Florida are using new technology to monitor problem drinkers -- an anklet that detects alcohol consumption 24 hours a day. It's only been used a handful of times involving drunken driving and domestic violence cases since this summer, but the monitoring system shows promise. It can help provide greater scrutiny than random alcohol testing, advocates say...The anklet, called SCRAM for Secure Continuous Remote Alcohol Monitor, tests the sweat every hour. The monitor also includes tamper-detection circuitry...Once a day, the monitor sends a radio signal to a modem attached to a phone line, which transmits 24 hours' worth of data to the system's Web-based software program...." Details (Sun-Sentinel 12.28.2005).

    'Get me Beltrami!' - Beltrami judges his 50 years. "'Get me Beltrami.' It is a phrase which, over the past half century, has been uttered in just about every jail cell in Scotland. From the worst murder to the simplest breach of the peace, thousands of accused have called upon the services of the criminal defence lawyer. Now 73, and still working in Glasgow, Joe Beltrami will next month celebrate 50 years in his profession. During that time, he has saved a dozen clients from the hangman's noose, winning for one of them the only royal pardon for a man convicted of murder in Scotland in the twentieth century...." This is from a well-written piece by William Tinning, Beltrami judges his 50 trying years, in The Herald (12.27.2005) -- it merits reading in full. Beltrami says the Scots' criminal justice system is better than ours:

The criminal justice system in Scotland, he says, remains one of the finest in Europe and is streets ahead of the U.S., shining above others "because we really believe in the presumption of innocence not being diluted." He adds: "The fact the criminal record of an accused is not made known to the jury before the verdict, unless he sets himself up wrongly as being a man of good character, and that we are the only country in the world with the verdict of not proven, should be a safeguard against the awful spectre of an innocent man going down. "Against that, we regretfully still allow dock identifications to take place. However, we are working on this clear blemish to our system."

For further evidence of the sublime majesty of the Scottish criminal justice system, here's an entry we posted in 2001 at BurtLaw's Law and Everything Else:

 Slopping out may be on the way out. Nelson Mandela, who knows of what he speaks, has said that "no one truly knows a nation until one has been inside its jails." Article 3 of the European Convention on Human Rights, which went into effect in 1999, provides that no one should be subject to inhuman and degrading conditions. One such practice that, surprisingly to me, still exists in prisons and jails in certain European countries is the practice known as "slopping out." For example, in a number of Scottish prisons or jails (call them what you wish), inmates are confined to their cells 23 hours a day and have no access to toilet facilities in the cells. Instead, they are provided with buckets, which are "slopped out" every morning. England ended the practice in 1997, but Scotland has been slow to do so, balking (in stereotypical Scottish fashion) at the cost of providing inmates with adequate access to  toilets. Relying on Article 3, Scottish courts this year have been ruling in individual cases that the practice is inhuman and degrading. Now 60 inmates at one prison have filed a "joint action" seeking compensation and transfer. Faced with the likelihood that more inmates will file claims and faced with the likelihood of having to both pay damages and modernize the prisons and jails, Scotch government officials finally may have gotten the message. [Link to article in The Scotsman expired] (08.15.2001) For some of my views on punishment and prisons, click here.

Slopping out update. Slowly but surely the Scots seem to be "cleaning things up a bit": "The Scottish Prison Service (SPS) now expects to pay out up to £44m and has set aside a contingency liability fund. Several hundred inmates still have to use chamber pots instead of toilets in Scottish jails...." More (BBC News 08.02.2005). Here's a link to the results of a Google search confined to three words, "Scotland," "slopping," and "out."

    'Judicial murder' in Korea? "Over 30 years after [eight activists were executed], the [Supreme] Court finally issued a retrial order yesterday to probe what has been dubbed a 'judicial murder' carried out by the government under military dictator Park Chung-hee. Eight college students were executed on April 9, 1975 by the Park administration, 18 hours after being sentenced to death and having their appeals rejected by the Supreme Court. It is now three years since [the] relatives requested that one of the nation's worst cases of democratic oppression from the 1970s be retried. The retrial order follows an announcement earlier this month by the National Intelligence Agency that it fabricated charges of conspiracy and treason against the eight men...." More (Korea Herald 12.27.2005).

    Judge by day, crime-fighting prosecutor by night? Edgardo Cubas, sentenced to death by Judge Jan Krocker in 2004 after being convicted in a series of robberies, rapes and killings, is arguing for a new trial because Judge Krocker was contemporaneously "participating" as a prosecutor opposing a federal appeal by a man she put on death row as prosecutor in 1987. "Krocker intervened in [the inmate's] appeal by filing written statements from herself and witnesses she contacted. [The inmate's] attorneys and the Texas Attorney General's Office, which was defending the conviction, objected to Krocker's involvement." Details (Fort Worth Star-Telegram 12.27.2005).

    And all through the courthouse, not a gavel is pounded. "You'd think it was snowing. Out-of-state witnesses don't want to come to town for trial. Fewer jurors are summoned to court. Half the secretaries in the public defender's office are out on break. It's holiday time at the Broward County Courthouse...." More (Sun-Sentinel 12.27.2005). Comment. Interesting story on why and how a courthouse goes relatively quiet as the year draws to a close. When I worked at the state supreme court in St. Paul and our kids were still kids, I typically took off the work days between X-Mas Day & New Year's Day. It was a way of getting a ten-day break (from work-work as opposed to the sometimes more exhausting home-work) at the "cost" of only a few vacation days. Then, when the kids no longer "needed" me & my marriage crumbled, I found I enjoyed volunteering to be the attorney/person on duty in the office in the week between X-Mas & New Year's. Working in a quiet or relatively-quiet court ain't bad, which is one reason why when flex-time was allowed (most of the time I was at the court), I began my work day very, very early.

    Dogs convince woman of need for judicial reform. A woman named Annette Dunlap has a piece in today's Charlottle Observer titled Dogs convinced me of need for judicial reform. She recounts how her husband, after learning from neighbors that two stray dogs had killed seven of their nine hens and after being unable to locate the dogs' owner, "did what farmers do" on farms, "where [her husband] learned that protecting one's livestock and property was given precedence over stray dogs." The dogs' owners called the sheriff after learning what happened and deputies "arrested [her husband] and [he was] charged with two felonies: grand larceny for the theft of the animals and cruelty to animals." Apparently a TV got wind of it all and played up the story. "In the prevailing environment, where 'animals (dogs, not chickens) are people, too,' my husband's only viable option was to agree to plead guilty to a misdemeanor," says Ms. Dunlap. Generalizing, she perorates, "The theory behind our adversarial judicial system is that the truth will emerge from an airing of both sides' evidence in a court of law. That ideal does not take into account political pressure and cultural legal practices...Advocates for reform are becoming increasingly vocal in their call for a review of our judicial practices. We need to heed them...." Comment. Curiously, Cat (sp?) convinced me of the need for judicial reform, but that is another matter. Speaking straight to the topic, I remember my Grandpa Otto Herfindahl and my Uncle Melvin Larson telling stories about lying in wait with their .22 cal. rifles in order to shoot the occasional fox in the habit of leaving the slough and raiding the nearby chicken coop. And it was true that many farmers (I don't know about Otto and Melvin) would kill dogs, including their own, if the dogs couldn't be trusted not to eat the chickens. Me? I'm for dogs (because "Dogs rule!") but I'm also for chickens and for people -- even cats. "Can't we all just get along," I plaintively ask, biting into a drumstick, chicken gravy dripping down my Scandinavian chin onto the floor, where one of my dog-friends -- Mathilda or Jane or Alice -- slurps it up.

    A Christmas prayer. Here's my Christmas gift -- it's for hard-hearted judges & lawyers & people -- for "the Scalia" in each of us. It's a common prayer I remember from my youth, based upon Ezekial:

Lord. Please take away my heart of stone and make it a heart like yours, a heart of flesh. Amen.

    Merry Christmas -- and, oh yeah, we're worst 'Judicial Hellhole.' In a case of interesting timing, The Monitor in McAllen, TX, has chosen its Christmas Day issue to report that in an annual report issued 12.13.2005 the American Tort Reform Ass'n "has named the Rio Grande Valley as the country’s worst 'Judicial Hellhole' for 2005...." More (The Monitor 12.25.2005).

    This just in -- Irish judges tend to be Catholic. "High Court and Supreme Court judges are most likely to be male, Dublin-born, middle class, privately educated, graduates of UCD, liberal and Catholic, according to a recent survey...." More (Sunday Business Post 12.25.2005).

    Court Christmas party focus of probe. "The chief administrator of the Philadelphia courts pledged Friday to take a hard look at an allegation that offices of the Family Court system effectively closed without authorization Thursday afternoon for a Christmas party. First Judicial District Administrator Joseph Cairone was responding to an account provided to The Inquirer by social worker Linda Hsiao [who] said she was turned away from court early Thursday afternoon by a beer-drinking front-desk employee who told her the place was closed for the day. Cairone said there was a catered party for employees on court premises that was not to have interfered with normal court operations...." More (Philadelphia Inquirer 12.25.2005). Read on...

    The judge's annual courthouse Christmas party [from the archives]. "Prosecutors cannot use a toxicology report as evidence against [Pascal Marullo, son of Orleans Parish Criminal Court Judge Frank Marullo,] charged with vehicular negligent injury in an accident that was ultimately fatal, an appeal court has ruled...According to a police report on the Dec. 5 accident, Marullo allegedly admitted drinking about seven beers at his father's annual courthouse Christmas party...." The state will ask the Louisiana Supreme Court to reverse the suppression order. More (Tuscaloosa News 07.07.2005). Comment. R. 2.02, subd. 3(1)(b), BurtLaw's Practical Rules of Judicial Conduct: "A judge ought not serve liquor at his annual courthouse Christmas party." This is a specific subrule of the more general rule stated in subd. 3(1)(a): "A judge ought not serve liquor in the courthouse."

    Judge removes Pope. Really? Yes, really. "A Houston federal judge has removed Pope Benedict XVI from a lawsuit...A letter from the U.S. State Department giving the pope sovereign immunity shields him from further legal action, U.S. District Judge Lee Rosenthal ruled...." More (Houston Chronicle 12.23.2005).

    Is 'Jesus Christ' a judicial creation? On Friday, 12.23.2005, Manhattan Civil Court Judge Diane Lebedeff permitted Jose Luis Espinal, 42, of Washington Heights to change his name, effective immediately, to "Jesus Christ." Espinal is quoted as saying that "he was moved to seek the name change about a year ago when it dawned on him, 'I am the person that is that name.'" More (Chicago Sun-Times 12.24.2005). Comment. It is said that Jesus turned water into wine and "multiplied" the loaves for the legendary "Wedding at Cana." Now a judge has turned "Jose Luis Espinal" into "Jesus Christ." Next thing we expect to see is some lawyer named "John Whatever" getting his name changed to "John Anderson" so he can run for the Minnesota Supreme Court, maybe even against one of the three Anderson's now on the court. That would make for an interesting election.

    Contrarian adds spice to unanimously bland appellate court. "On more than one occasion when the partners of the hotshot Paul, Weiss Manhattan law firm sat down to vote, Robert S. Smith found himself on the wrong end of a 99-1 tally. That pattern hasn't changed much since Smith became a judge on New York's top court...Smith's arrival at the Court of Appeals [N.Y.'s highest appellate court] in January 2004 sparked a flurry of 4-3 or 5-2 decisions, bringing the number of split decisions in 2004 to 39 -- more than double the annual amount recorded since 1999. The court was on a similar pace for 2005...Chief Judge Judith Kaye[, who] values consensus...declined comment...Observers said the evolving into discernible factions. Smith contributes to that through his willingness to disagree, analysts said. It's conceivable his approach has encouraged others to dissent, some said. Or his arrival has crystallized the now divergent viewpoints at the Court of Appeals...." More (Poughkeepsie Journal 12.25.2005). Comments. a) Chief Judge Kaye declined comment "through a spokesman." That itself is worthy of comment. Since when does a judge need "a spokesman" to say "No comment"? I remember, not too long ago, when appellate courts did quite well without hiring, with our money, "spokespersons" and "court information officers." b) This is a refreshing story, worth reading in its entirety. We live in an era when appellate judges have assigned too great a weight to the amorphous supposed virtue that they refer to as "colleageality." Looked at with a bit of critical distance, some state appellate courts appear to be the Bland leading the Blind. Despite what you've heard about the crucial importance of colleageality on a supreme court, creative conflict is even more essential. An appellate court on which everyone agrees with everyone else is a calcified, dead court. To put it another way, an appellate court that is only about stability and collegiality is as bad as a court that tends to be too fluid and rambunctious and devoid of stabilizing forces.

    A plan by legislators to kidnap chief judge? "Tension has enveloped Ibadan, the capital of Oyo State [in Nigeria], as the crisis between  the state Governor, Senator Rashidi Ladoja, and his estranged godfather, Alhaji Lamidi Adedibu, has taken another turn for the worse. It was learnt on Saturday that spirited  plans were being made by the pro-Adedibu legislators to kidnap the Chief Judge of the state, Justice Afolabi Adeniran, in a move to get the judge to raise a panel to investigate the governor...." More (This Day - Nigeria 12.25.2005).

    Did rapper Foxy Brown stick out tongue at judge in gesture of disrespect? That's what headlines in many papers are saying, but it's not clear from this report today at the BBC's website. Ms. Foxy Brown, a/k/a Inga Marchand, is charged with assaulting two employees of a nail salon in a dispute over payment. After setting a date of 01.23.2006 for another appearance, Judge Melissa Jackson told Foxy Brown's lawyer that she had chewing gum in her mouth. The lawyer said he didn't think so and said Brown has a hearing problem. Told what the judge said, Brown "opened her mouth and wagged her tongue as if to show her mouth was empty. Judge Jackson ordered the rapper to be handcuffed to the defendants' bench. But a row erupted with the court officer, with [Brown]complaining the bangles and bracelets on her left wrist were 'in the way.'" Brown apologized after being threatened by the judge with contempt and a fine. Comment. We don't know the facts. Did Ms. Foxy Brown stick her tongue out at the judge in disrespect? Or did she merely stick it out, as little kids do to their mommy-judge-accuser, to show an empty mouth -- in other words, was there a break-down in gestural-cultural communication? Might we someday need gestural-cultural interpreters at court hearings and trials? Perhaps another major sensitivity task force -- with concomitant endless hearings, long-winded sanctimonious reports, explanatory press conferences, etc. -- is in order.

    A mess of allegations, including over judges and their lawyer spouses. We won't try to sort it out in detail. Here's a bare summary: There's a feud going on between Michigan Republican Attorney General Mike Cox and a lawyer named Geoffrey Fieger, a Democrat,who represented Dr. Jack Kervorkian. Cox stunned everyone in November by publicly announcing he'd had an affair a couple years ago and claiming he was letting everyone know because an associate of Fieger had threatened to go public with the info if Cox didn't call off an investigation into possible campaign funding violations by Fieger in an attempt to unseat Supreme Court Justice Stephen Markman. More (Detroit Free Press 11.17.2005). Cox recently appointed an independent prosecutor, a Democrat, to conduct the campaign funding investigation. More (Michigan Live 12.19.2005). Now "[o]ne of Fieger's attorneys has criticized the hiring of Kathleen Markman and Lucille Taylor [lawyer spouses of supreme court justices] and [a $34,000] contribution Cox['s political action committee] made to Stephen Markman[' campaign]. 'It's a signal of solidarity," Richard Steinberg [a Fieger attorney] said recently. 'You have this whole incestuous thing where the Cox 5200 PAC gives money to Justice Markman, his wife gets a job in the attorney general's office.'" But in an interview reported today, 12.24.2005, Cox defends hiring the women and points out that two other female lawyers in his office, wives of lower court judges, were hired by Democratic Attorney General Frank Kelley, who left office in 1998. "We live in a modern world," Cox is quoted as saying. "Sometimes spouses are in the same field." He also defends their qualifications. More (South Bend Tribune 12.24.2005). Comment. We make no comment on the Michigan mess. As we have noted previously, there are numerous ethical issues raised when a judge is married to or romantically allied with another politician/government employee, robed (another judge) or unrobed (a non-judge running for judicial office or a candidate for or holder of an executive or legislative office). It would be difficult to formulate rules dealing with all the possibilities. Minnesota's Governor, Tim Pawlenty, is married to a district court judge: she did not participate in his campaign in 2002 and has been careful not to cross the ethical line in her other role as First Lady. One of the earliest and still one of the best articles on ethical issues raised by a judge's spouse's activities is by a revered Harvard Law School teacher of mine, Prof. Andrew L. Kaufman, "Judicial Ethics: The Less-Often Asked Questions," 64 Wash. L. Rev. 851, 862 (1989). See, also, "When good relations can be a potential problem" at Court Gazing II at BurtLaw's LawAndEverythingElse.Com (scroll down).

    Ye olde Christmas shift at night court. "This Christmas General Sessions Court Judge Leon Ruben will mark his 35th consecutive year to preside over Night Court on Christmas Eve and Christmas Day. Ruben will work from 7 a.m. to 3 p.m. on both days...Commissioners, who are granted the same power as judges, preside over night court in eight-hour shifts. 'I enjoy it because I can let the commissioners off to be with their families,' Ruben said...Ruben began the tradition as an attorney, when the court would ask for Jewish lawyers to stand in on Christmas Eve and Christmas Day. After he was appointed a General Sessions judge in 1981, Ruben continued to fill in at Night Court for the holiday...." More (Nashville City Paper 12.23.2005).

    Jessica Simpson wants different judge in her divorce case. The judge assigned to the case is Los Angeles Superior Court Judge Michael P. Linfield. Ms. Simpson's attorney filed papers claiming Linfield "is prejudiced against petitioner and/or petitioner's attorney or the interest of petitioner." But it appears "the court papers [are] a formality -- a first step in the ex-couple's plans to have a private judge hear the case." Details. (NBC4.TV 12.23.2005). Comment. Give the judge a tee shirt saying, "I was rejected by Jessica Simpson."

    Are British judges increasingly 'irked' and 'furious'? "[Salford Magistrates Court Judge Jonathan Finestein] launched a scathing attack on the probation service after a high profile case had to be adjourned because a report was not prepared...Judge Finestein said the situation was a 'shambles.'" Judge's fury at court 'shambles' (Manchester Evening News 12.23.2005). See, also, Judge: 'Putting up' with jailers' 'incompetence' for 'years.'

    Judge reassigned after criticizing colleague.  "Orange County Judge Alan C. Todd -- already in trouble with judicial watchdogs for insensitive statements he made from the bench -- recently made a series of disparaging comments in open court about fellow county Judge W. Michael Miller. Todd repeatedly told defendants [at arraignments] that they should avoid Miller's courtroom because he wouldn't give them the same kind of justice and legal considerations that Todd grants...After listening to digital recordings of Todd handling these and other arraignments Dec. 9, Ninth Judicial Circuit Chief Judge Belvin Perry on Thursday removed Todd from misdemeanor criminal cases and transferred him to a civil-court division. Now he will handle matters such as landlord disputes. 'I am personally appalled at the comment,' Perry said..." More (Orlando Sentinel 12.23.2005). Comment. After Social Security is "privatized," then we can "privatize" the courts. Competition'll be good for them. The "magic of the marketplace." Then what Judge Todd did won't be unusual. Indeed, judges who wanna stay in business will have to cut commercials luring defendants to their courtroom: "Christmas Special!! 25% reduction in prison time, conjugal visits, and NO fine!!"

    Judicial immunity will be on ballot in SD next year. "Secretary of State Chris Nelson says he has verified enough signatures to place a proposed constitutional amendment on next year's ballot that would strip judges of immunity from lawsuits over decisions they make...." More (KELOLAND.Com 12.23.2005). For my take on this initiative, see, Maker of livestock-feed grinders wants J.A.I.L. for judges.

    Close encounters of the judicial kind. "Two days before Robert Durst violated parole [in connection with conviction of bail-jumping and evidence-tampering] with a trip to Galveston County last Friday, the New York millionaire had a close, strange encounter with the judge who presided over his sensational murder trial two years ago [which resulted in a surprise acquittal]. State officials say Houston's Galleria wasn't on parolee Durst's list of approved stops Dec. 14, when he ran across state District Judge Susan Criss of Galveston...Criss said she didn't know what to say to Durst, so she said the obvious. 'How ya doing, Bob?' she said. 'He said he was doing fine.' The two then discussed the current activities of attorneys Dick DeGuerin, Mike Ramsey and Chip Lewis, who represented Durst in his murder trial. DeGuerin now represents U.S. Rep. Tom DeLay, R-Sugar Land, and Ramsey and Lewis are preparing the defense of former Enron Chairman Ken Lay. 'I can't believe you stopped to talk to me,' Criss quoted Durst as saying. 'What was I going to do?' Criss said. 'Run away and scream?'" Details (Houston Chronicle 12.23.2005).

    Judges on secret spy court to get White House briefing. "[U.S. Judge Colleen Kollar-Kotelly, t]he presiding judge of [the] secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources...[The briefing will be by] top-ranking officials from the National Security Agency and the Justice Department...." Details (Washington Post 12.22.2005). Earlier. Federal judge resigns in protest from secret court Bush bypassed. Comment. Ex parte meetings of "judges" on an American "secret spy court" with "top-ranking officials from the National Security Agency and the Justice Department"? -- an oxymoronic poisonous confection consisting of layer upon layer of self-contradictory terms. While I admire the one judge for resigning, I don't admire him or any of the others for having agreed to serve on such a "court." I would have refused if I had been in their position on the ground that such service would constitute a violation of my oath to uphold the Constitution and a betrayal of my employers, "We the People."

    Judge apologizes for using court stationery. "Superior Court Judge Ernest B. Murphy yesterday publicly apologized for using official court stationery to write a letter demanding that the publisher of the Boston Herald pay him $3.2 million to end the judge's libel suit against the newspaper...The code of conduct is clear about the use of official court stationery for personal business. It warns judges to 'distinguish between proper and improper use of the prestige of office in all of their activities' and says that 'judicial letterhead and the judicial title must not be used in conducting a judge's personal business.'" Details (Boston Globe 12.22.2005). Earlier. Newspaper attacks $2 million libel verdict awarded trial judge.

    Federal judge resigns in protest from secret court Bush bypassed. "A federal judge [Judge James Robertson], has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources. [The judge,] one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John Roberts Jr. late Monday notifying him of his resignation without providing an explanation. Two associates familiar with his decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the work of the FISA court...." Details (Chicago Tribune 12.21.2005). Comment. Here's what the President said in one of those carefully-orchestrated Q. & A.'s, in Buffalo, N.Y. on 04.20.2004:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Source: Timothy Noah, Whopper: George W. Bush - The President crosses his fingers behind his back (Slate 12.21.1005) (Noah compares this statement with the President's most-recent statement, at a press conference on 12.19.2005, and offers the President's press secretary's heroic but unconvincing attempt to reconcile the two statements).

    Eugene McCarthy on 'A Good and Becoming Exit.' In an essay titled "A Good and Becoming Exit," included in his 1975 collection, The Hard Years (at pages 100-103) -- and apparently included in his last book, Parting Shots from My Brittle Bow : Reflections on American Politics and Life (2005) (Table of Contents) -- Eugene McCarthy said that "[t]here are at least eight courses of action open to political officeholders who find themselves dissatisfied with the policies of their government." These are: a) keep one's mouth shut; b) present one's views from within; c) murmur one's protesting views at cocktail parties; d) disagree publicly; e) quit and keep one's mouth shut; f) quit and speak under cover of privilege to columnists and friends; g) quit and bide one's time before writing about it when the Administration is out of power; h) quit with a flourish. The last, he said, "is the way least used in American politics." McCarthy's essay gives examples of each course of action and concludes:

A man in public office is not wholly free to keep private his views on vital public matters. He must accept the fact that there are times when the public good overrides personal considerations and when loyalty to party or to an office or even to a President must be given a secondary position, a time when, in fact, resignations with explanation are both right and necessary to the public good.

Earlier. Clean Gene McCarthy (1916 - 2005) (BurtonHanson.Com).

    Newspaper attacks $2 million libel verdict awarded trial judge. Last February a Suffolk County, MA jury set damages at just over $2 million dollars after finding that the Boston Herald had libeled Superior Court Judge Ernest B. Murphy in a series of stories in 2002 that "portrayed him as a lenient judge who had made inflammatory and insensitive remarks about two crime victims." Recently Judge Murphy has attempted to freeze the paper's assets pending appeal. In resisting that, the paper's attorney filed with the trial court a number of letters to the paper's publisher, Patrick J. Purcell, handwritten by Judge Murphy, in which the judge "proposed a face-to-face meeting with Purcell and a representative of the newspaper's insurance company and urged Purcell not to inform the lawyers at the [paper's] principal law firm, Brown Rudnick, that the meeting was taking place...Using his Superior Court stationery, Murphy also wrote the Herald stood ''ZERO chance' of success on appeal and warned that Purcell would be making a ''BIG mistake' to show one of the letters to anyone except the insurance company lawyers...." Details (Boston Globe 12.21.2005). Text of Judge Murphy's letters - page 1 and page 2; Photocopies of letters - copy 1 - 2 - 3 - 4 (Boston Herald 12.21.2005). Comment. I know nothing about the merits of Judge Murphy's case under existing law. But I believe the cause of action of defamation ought to be eliminated as inconsistent with First Amendment values. I express my views in greater detail at Court upholds dismissal of judge's libel suit against TV station.

    Another case of judge charged with viewing porn on court-owned computer. "The agency that oversees the state's judges has charged Pinellas [County FLA] Circuit Judge Brandt Downey with habitually viewing pornography on his office computer, harassing two female attorneys and concealing evidence that a juror slept during a murder trial. The charges come nearly eight months after the allegations first surfaced. Downey, who announced Friday that he will retire in 2007, could face a fine, reprimand, suspension or removal from office....Downey, 60, is accused of 'habitual viewing' of pornography on his chambers computer over a three-year period. The viewing was so frequent that Downey's computer contracted viruses that threatened to gum up the entire courthouse's computer network...." More (St. Petersburg Times 12.21.2005). Comment. For my presumably minority viewpoint on removing judges found to have viewed porn on court-owned computers, see Judge removed for viewing porn on court-owned computer.

    Report requested by judges supports judges on courthouse security. Judges and the sheriff's dept. have been pointing fingers of blame ever since the shooting spree that occurred in the Fulton County Courthouse in Atlanta resulted in the killing of four people, including a judge. The judges requested a security audit. It was conducted by the Nat'l. Center for State Courts (VA) and the Public Agency Training Council (IND). Their report has been released. "[It says] there are too many unsecured guns, too many unlocked doors and not enough surveillance cameras at the downtown Atlanta courthouse. The report also [says] there was not enough cooperation between the sheriff's department and judges...The report recommends adding a security manager who answers to the judges and not the sheriff's department. But Sheriff Myron Freeman has insisted the job of protecting the courthouse is his responsibility, and has criticized judges for undermining security by giving deputies extra tasks such as running errands...." More (Columbus Ledger-Enquirer 12.20.2005).

    Annals of judicial cyber-dating and 'judicial hellholes.' George Moran, Jr., 57, has been a Madison County Illinois State Judge since 1977. Madison County is notorious for being a so-called "Judicial Hellhole," that is, a venue thought to be overly favorable to class-action lawsuits filed by plaintiffs' lawyers. More. On 12.11.2005 the St. Louis Post-Dispatch published a story in which Judge Moran was said to have claimed that "trial lawyers who have lost in his courtroom [were] conspiring with the county's Democratic party to force him off the bench." According to the article, Moran said that a "party member, whom he refused to identify, said the plan would involve publicly accusing the judge of shirking work to take Spanish classes and belittling him over his profile on a dating Web site. On the site, Moran is pictured in judicial robes and as indicating a preference for 'skinny dipping' and 'erotica.'" The article quoted Moran as saying: "If the worst they can come up with about me after 28 years is that I have an Internet dating site, that I like women and I took some Spanish, I think voters are smart enough not to pay attention to that." (For more on the cyber-dating aspect of this matter, click here.) Moran reportedly claimed that some of the big plaintiffs' lawyers and Democratic party contributors had "turned on him" because he had dismissed or transferred some class-action suits. The Post-Dispatch's story, which contains responses, is worth reading in its entirety, but the following is worth excerpting here:

As a son of a former state appellate judge and personal injury attorney, Moran's judicial career has followed the classic Madison County trajectory that favors Democratic trial lawyers and their sons and daughters. Now, the system that created him has apparently turned on him.

Anyhow, the upshot of all of this is that today's Belleville News-Democrat reports that Judge Moran has withdrawn his name from the March retention ballot. Moran's statement: "After reviewing the political environment and what is best for me and my family, I have decided not to seek retention to the bench." More (Belleville News-Democrat 12.20.2005). Further reading. Q & A with Judge Moran (Madison Record 05.20.2005).

    Annals of judicial cyber-dating, part II. The Post-Dispatch quotes Judge Moran as saying in an interview that he began using the dating service "two years ago, after his third divorce." It says that the picture of the judge at his website profile shows him in his judicial robes, around 1977, the year he became an associate judge, three years before he became a circuit judge. In the profile Moran states, "I am a sitting circuit judge in Madison County, Illinois" and "I am slender, well-groomed and look like my picture." In the preferences section he states that his "turn-ons" (a term used in a web questionnaire) include: "erotica, skinny dipping, flirting, power, money, dancing and long hair." His listed "turn-offs" include "body piercings, sarcasm and tattoos." Moran told the reporter that he had "had some good luck with that site. I've met some beautiful women. I dated a former Miss Alabama." Moreover, the judge was candid in admitting why he took night classes in Spanish, saying he took them "because there are pretty women there. What's wrong with that?" More. Note. For the benefit of our readers, we have included thumbprint-size copies of two photos, which when clicked will link to the larger photos, the current one (left) from the news story, the older one (right) from the court's website. Comment. We don't believe the judge did anything amounting to judicial misconduct in posting the "profile" on Match.Com, the leading internet dating business. Judges are not required to be eunuchs or to take a vow of chastity and should be free to use lawful means to pursue their romantic inclinations, so long as they don't inappropriately take advantage of their position in doing so or inappropriately bring disrepute to the judiciary. The only thing Judge Moran did that appears questionable is using an old photo, but that is standard behavior on internet dating sites. Further, Judge Moran may have actually believed he "looks like his picture" -- who of us past 40 doesn't occasionally delude himself into believing he still looks ten years younger? And query: How many judges around the country post old photos of themselves, taken when they were younger, on court websites? Or put them in campaign brochures? Or provide such photos to the press? But, you say, surely it was improper to show himself wearing a robe? We think not, unless one believes he should have concealed from the women the fact he is a judge. Further reading. Bill McClellan, a columnist for the Post-Dispatch, wrote a column on 12.14.2005 awarding his annual "Guy of the Year Award" to Judge Moran. He says that the "tipping point" that prompted him to pick Judge Moran over the other two "finalists," whose misdeeds he summarizes, was that "His photo for the dating Web site is from 1977."

    Annals of judicial cyber-dating, part III. Last summer, shortly after Judge Roberts was appointed by President Bush, we posted this piece, which we reprint here, for obvious reasons:

    Which judge named to Supreme Court was a computer dating pioneer? This is a trick question, because although he was named by President Reagan on 10.29.1987 to succeed the retiring Justice Powell, he was never confirmed. Instead, NPR's Nina Totenberg & The Washington Post's Al Kamen reported that in the 1960s & 1970s, including while he was a professor at Harvard Law School, he had smoked marijuana, & -- puff! -- the nomination went up in smoke. See, Judge Douglas Ginsburg's Marijuana Use in "Media Frenzies in Our Time" in the Washington Post. I'm speaking of the man who is now the Chief Judge of the U.S. Circuit Court of Appeals, on which the recently-nominated John Roberts also serves as judge. I refer to Judge Douglas H. Ginsburg (no relation, that I know of, to Justice Ruth Bader Ginsburg). If you look at his curriculum vitae, you will see under "Employment," among other jobs, the following: "Compatibility Research, Inc., Cambridge, MA, Vice President, Marketing for 'Operation Match' computer service, 1965 - 1968." Operation Match was the original computer dating service in the United States, starting during the 1964-65 school year. See, The Originals - Matching them up (Harvard Magazine March-April 2003), Have You Met Your Miss Match Yet? (Harvard Crimson 04.and Operation Match (Harvard Crimson 11.03.1965). You might say my two children, both adults now, owe their lives to Douglas Ginsburg & his fellow pioneers in computer dating, because I met my wife of nearly 30 years (now ex-wife), their mother, then a Wellesley student, through participating in Operation Match during the 1965-66 school year at Harvard Law School. Did I ever use pot? No, my life has been too boring to have done that. Do I think it should have mattered that Judge Ginsburg used pot? No. Is it likely that Judge Roberts ever used pot? I tend to doubt it, although it likely wouldn't hurt him if it turned out that he had. Now it seems more relevant, at least to some, whether he was ever a member of The Federalist Society. According to yesterday's New York Times (click here), "[Roberts] has no memory of ever joining or paying dues to the Federalist Society,' Mr. McClellan [President Bush's press secretary] said, while conceding that the nominee had taken part in events sponsored by the society." (Transcript of press conference). It sorta sounds as if some people think having been a card-carrying member of The Federalist Society is akin to having been a card-carrying member of the KKK or the Communist Party. Not so, of course. In fact, I rank the Harvard Law chapter's provocative law review, The Harvard Journal of Law & Public Policy, as one of the top ten law reviews.

    Obituary for retired judge who was 'wordsmith,' passionate college alum. Retired Judge John Walter, 72, who sat for two decades on the county bench in Lebanon County, PA, died after a brief illness. The obit. headline says, "Ex-judge showed flair on two courts," referring to his "eloquence and flair for language" in court, out of court, and as a "longtime announcer at Lebanon Valley College basketball games, [where he] was recognized for his colorful play-by-play. His trademark description of a trip to the foul line for two shots was that the player 'earned a trip to the charity stripe, where he will attempt a brace of benevolent buckets.'" President Judge Robert Eby is quoted as saying, "John was a wordsmith. He prided himself on his use of the language." An example: "'Like a bearcat' was Walter's favorite response to 'How are you?' Eby recalled." As an undergrad and JV player, Walter proposed to his wife kneeling on the basketball court at "LVC" and his memorial service will be held at LVC. More (Patriot-News 12.20.2005).

    Judge: 'Putting up' with jailers' 'incompetence' for 'years.' Judge Ronald Moss of London's Harrow Crown Court was understandably irked when "[Wormwood Scrubs] prison officials resent yesterday's defendants to today's session," prompting him to refer to the matter as "Groundhog Day," in reference to the 1993 Bill Murray movie of the same name, in which Murray, playing a TV weatherman, relives the same Groundhog Day over and over again until he finally learns the right way to live and love. After being told it all was a result of a computer glitch, the judge said, "I have been putting up with this for years. Then there was privatisation and I thought that might be an end to it, but no." More (Channel 4 News UK 12.20.2005).

    Judge named newsmagazine's Person of the Year? You may have thought you heard that Time magazine's Person of the Year cover story is devoted to The Geeks (Gates & wife) and The Rocker (Bono), and I'm not saying you're wrong. But "up nort'" in Canada Time publishes a Canadian edition. Its Person of the Year cover is graced by Justice John Gomery, who oversees a commission that has been inquiring into a so-called "sponsorship scandal." According to today's The Globe & Mail, "The magazine chose Judge Gomery because of his work 'under the public glare, for renewing a modicum of faith in democratic accountability at a time of unprecedented anger toward politics and politicians, and for handling a complicated and supercharged inquiry with authority, charm and passion.'" More. Comment. The article says that Time quotes the judge as having said that "the appointment to oversee the commission was 'the opportunity of the lifetime,' and that 'every judge dreams of doing a commission of inquiry like that.'" I think there are many people in the U.S. who would disagree with that sort of thinking. Justice Robert Jackson was criticized for taking a leave to serve as Chief United States Prosecutor at the Nuremberg Tribunals. For an interesting lecture by Chief Justice Rehnquist devoted to Justice Jackson and his role at Nuremberg , see Remarks of the Chief Justice American Law Institute Annual Meeting - May 17, 2004 (Supreme Court Information). Chief Justice Earl Warren was criticized similarly for "agreeing" to serve on and as head of the Warren Commission to investigate President Kennedy's murder. According to one critic, Warren was "blackmailed" by President Johnson into "agreeing":

Johnson asked Warren if he would be willing to head the commission. Warren refused but it was later revealled that Johnson blackmailed him into accepting the post. In a telephone conversation with Richard B. Russell Johnson claimed: "Warren told me he wouldn't do it under any circumstances...I called him and ordered him down here and told me no twice and I just pulled out what Hoover told me about a little incident in Mexico City...And he started crying and said, well I won't turn you down...I'll do whatever you say."

For Chief Justice Warren's different recounting of his initial refusal and of what LBJ said to persuade him to serve, see Earl Warren Oral History 09.21.1971 (LBJ Library Oral History Collection).

    We wish you a Southern Baptist Supreme Court Christmas. "Picturesque scenes from the nation's capital have long graced Christmas cards from the Ethics and Religious Liberty Commission of the Southern Baptist Convention...The photograph on [this year's] card depicts the Supreme Court building and a solitary figure walking past holding a red umbrella. The inside greeting says: 'May your Christmas be full of Promise, Joy, and Blessing.'" Details (Washington Post 12.19.2005).

    Not just any judge. "[Miramichi, New Brunswick Judge] Drew Stymiest is not just any judge, but a man whose influence reaches deep into the place he calls 'The River.' The Miramichi region is a cluster of small towns stretching along a mighty river known for the salmon in its waters and the thick forests that line its banks. For 20 years, Stymiest was justice in The River, the man most often found behind the high, carved wooden bench in the old stone courthouse on the hill. Outside court, Stymiest helped build a playground for toddlers and an old-age home for elderly neighbours. He joined a group that set up summer camps for teens...." The list of his community activities goes on and on. But now he "stands accused of systematically defrauding the [local] health-care system of hundreds of thousands of dollars...." More (Toronto Star 12.19.2005).

    World Bank loans big bucks for judicial reform. "The World Bank’s Board of Directors approved a loan in the amount of $130 million for the implementation over the next 4 ½ years of a Judicial Reform Project (JRP) in Romania. The Judicial Reform Project is a natural corollary of the changes introduced by the government to improve the overall legal framework as part of EU commitments.
This project supports the country’s objectives to increase efficiency of the Romanian courts and improve the accountability of the judiciary, resulting in reduced corruption and a more transparent justice system...." More (Reporter.GR 12.19.2005). Comment. When we think of Romania, we think happily of Nadia Comaneci, the great Olympic gymnast, spouse of U.S. Gymnast, Bart Conner, but we also can't help thinking of the sickening middle-of-the-night videotaped 1989 "trial" of Romania's President/Strongman, Nicolae Ceausescu, and his wife Elena, by a secret military tribunal, which resulted, of course, in their being found guilty of crimes against the state and their immediate execution by firing squad. On this day - 12.29.1989 (BBC News). One of the greatest developments in the history of the progress of the idea of individual liberty, including judicial independence and accountability, is the European Union, which is using membership as a carrot to get countries like Romania and Turkey to transform their judicial systems, etc., etc. Fueling it all are Capitalism and its love child, the Global Economy. If you build a good legal system, the capitalists will come; moreover, wherever capitalism goes, like Johnny Appleseed it plants the seeds of good legal systems. See, China's flawed legal system - a work in progress?

    Another judge under fire for chambers makeover, etc. "A federal appellate judge spent $79,844 remodeling his office in the federal building [in Cheyenne] before spending another $125,427 to remodel new office space in a different building nearby that he then moved into and now occupies. The new chambers for 10th Circuit U.S. Court of Appeals Justice Terrence O'Brien cost $9,725.34 a month to rent. The government agreed to a 10-year lease for that space in a deal that ultimately will cost $1.167 million in rent...." More (Billings Gazette 12.19.2005). Comment. Federal judges have life tenure so they don't need to fear loss of job at the hands of disapproving voters if they sign off on wasteful expenditure of public funds to remodel chambers, etc. But state judges? Read on....

    Annals of judicial chambers makeovers. "Will Laura Blackburne ever learn?
The suspended Queens judge who first got in hot water for lavish spending when she headed the Housing Authority -- including the purchase of a $3,000 pink leather sofa -- is at it again. Right after she was demoted last year for helping a suspect elude arrest, Blackburne spent thousands to redecorate her new chambers -- including $1,380 for [reupholstering] a couch...." Details (N.Y. Daily-News 12.18.2005). Comment. We posted a link in early November of this year to a story about a judge in PA who came under fire for a $20,000 chambers makeover: Judge's chambers gets $20,000 makeover. "Scandals" like this are common enough that we occasionally reprint, for the edification of judges around the world who read this blog, a mini-essay we wrote on this sort of thing back in 2001 at BurtLaw's Law and Judicial Economics; it's titled "Reining in those wild-spending judges," and we reprint it here:

 Reining in those wild-spending judges. Everything is relative. A simple breakfast that costs $1.99 in a small town might cost ten times that in New York City. One man's penny-pinching is another man's extravagance. A county commissioner might get upset if a judge under his fiscal jurisdiction  spends $3,500 for a new desk and chair for his chambers, whereas a United States Senator might think nothing of supporting the appropriation of $150 million for the construction of a new federal courthouse in the state, a courthouse in which each judge has his own bathroom and kitchenette. One of the beauties of American democracy is one never knows when the taxpayers and voters are going to get upset over this-or-that public expenditure. The unpredictability of taxpayers and voters helps, at least theoretically, to keep our elected representatives on their tippie-toes. Case in point: Earlier this year county commissioners in Hood County, Texas spent weeks trimming $2 million from the county budget because of revenue shortfalls. Nonetheless, perhaps because the county court's approved budget included money for new furniture for him, County Court-at-Law Judge Richard Hattox went shopping, eventually settling on a desk and chair that cost the county $3,500. The commissioners got wind of this and two of them made a fuss about it before the other three approved the purchase. One of the two who made the fuss said, "It just doesn’t feel right to me. I don’t see how a $1,000 chair will help do business any better." The judge, however, claims the two were "trying to undermine me politically." One of the judge's supporters said, "You get what you pay for. This equipment is of quality that will last the county for generations."  [Hood County News - old link circa 11.28. 2001 expired]. As I said, everything is relative. The best, most comfortable chair I own is a mint-condition classic Goodform-brand light-weight aluminum office side chair (with arm rests and upholstered cushion and back rest) made in the 1950's by General Fireproofing Company in Ohio. If I were a judge, I'd take it with me to my chambers and use it as my primary work chair. I bought it on E-Bay for $90 (shipping included). I've been worried I spent too much, but then, you know, you get what you pay for. This chair is one that not only will last for generations to come, it has already lasted a few generations. (Entry dated 11.28.2001)

As these "scandals" go, the one reported in today's Daily-News is in the "mini-scandal" category. According to the story, Judge Blackburne's "demands" for furniture "as well as her plans to knock down walls in the landmark courthouse... were scaled back by her furious boss, Queens Administrative Judge Leslie Leach, who nixed a $3,000 armoire, a new, taller toilet, desk and couch" but she "did get $1,380 to reupholster an exiting sofa...[and] also got new bookcases, file cabinets and a desk for her secretary...." Note: As we get older, the past, like "the True Church" in T.S. Eliot's The Hippopotamus, "remains below/ Wrapt in the old miasmal mist," and it takes a bit of effort for an old memory to get up out of the mud and dry itself off in the sunlight for us to contemplate. But one such memory just made it to the surface -- a memory of a rumor of a similar request by a "mere underling" somewhere in the great Common Law judicial system to tear down a wall in order to turn two smaller offices into one large enough for his or her unjustifiably-large ego. As Harry Truman said, the only thing new in the world is the history you never learned.

    'Say, Burt. How do you feel about cosmetic makeovers for judges?' We recognize that there are many judges who have an image problem in the courtroom. They do not project authority or wisdom or gravitas or experience -- whatever. Whenever one of those judges contacts us here at the International Headquarters of BurtLaw's The Daily Judge, we recommend Klara's Kut 'n' Kurl.

    Quote of the Day. "Judges are human, and as such, do on occasion err. Ultimately, it is this court's constitutional duty to separate honest errors of a judge from willful misconduct, wrongful use of power, corruption, dishonesty, or acts of moral turpitude which negatively reflect upon the judicial branch of government." - Justice Michael Randolph of the Mississippi Supreme Court in dismissing a complaint against a justice court judge who was accused of violating the Mississippi Constitution and the Code of Judicial Conduct by twice denying bail to a man accused of domestic abuse. More (Jackson Clarion-Ledger 12.18.2005). Comment. The ruling strikes us as correct. Hardly a judge is alive who has not at some point in his career issued or been party to a ruling later declared by some higher court to have been erroneous under the state or federal constitution. It strikes us that there is an unavoidable, inherent tension between the equally important principles of judicial independence and judicial accountability. Cries by judges of threats to their independence shouldn't necessarily be taken at face value without subjection to critical examination. Similarly, we need also to be vigilant against perversions of the tools and processes of judicial misconduct commissions (as well as lawyer misconduct commission). For more on my views, see my 2000 essay, BurtLaw on Judicial Independence and Accountability.

Our Motto - "Ridentem dicere verum quid vetat" Loose translation: Does anything prevent telling the truth with a smile? (Horace)

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Adv. -  In response to the "makeover craze" that's sweeping the nation, Klara's Kut 'n' Kurl announces that it will be setting aside Saturdays for judicial makeovers. Many judges, we find, have an image problem in the courtroom. They do not project authority or wisdom or gravitas or experience - whatever. Klara Fribund Kollevitz can help. For example, if you're an obviously-young judge or an older judge cursed with a Dick Klark youthful appearance, Klara can use state-of-the-art aging technology -- Gravi-Tox -- to add gravitas to your look. Judge-appropriate konfidentiality assured. Kall Klara's at Local 536 for a free konsultation.

Affiliated Web sites

   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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