The Daily Judge
© 2008 Burton Randall Hanson
      11.01.2008 - 11.14.2008
"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.

Complaints? If you feel we have made a factual error or been unfair in expressing our opinion, please contact us (see, infra) and give us an opportunity to correct the perceived wrong.

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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 most recent postings. a) 11.08.2008: Remembering Dr. R. Galen Hanson (08.04.1939 - 11.08.2004). b) Bonus Headline-of-the-Day: Judge mugged near Obama's house Monday. c) Headline-of-the-Day: Determined Texas woman, 92, votes in ambulance after election judge, worker climb aboard. d) Current Question: Who will be President Obama's first appointment to the Supreme Court? e) Hanson, tallest prof at Harvard Law, wonders if we're all just volleyballs. f) Judge who retired gets hands knuckled for expressing impatience, irritation. g) Profile of a gentle judge who presided with courtesy and lubricating humor. h) Top court reverses convictions, awards new trial because Judge Dodd nodded. i) Why a few GOP judges in one TX county survived Democratic tornado that swept most from office. j) Is Harvard Law now in direct control of two branches of our Government? k) Federal judge overturns conviction of GA magistrate judge. l) Gail Chang Bohr wins election to open seat on district court in MN. m) Voters in Michigan unseat Chief Justice Taylor. n) Juror in Stevens trial who said dad died lied. o) Quote-of-the-Day. p) Of rat-infested temporary courthouses and new courthouse construction delays. q) Judicial candidate gets attacked by pit bull. r) Federal district judge files brief criticizing prosecutors in pending appeal. s) 'Supremes Court,' by 2-1 vote, upholds stopping in the name of luv. t) Do I sense a cause célèbre in the making? u) Do law students cheat even more than hoi polloi students at elite U? v) Judge's secretary is indicted on drug charges. w) The opera caucus at SCOTUS goes bonkers over Leontyne Price. x) Judge who booted his wife and was booted from bench for preaching to women, dies. y) Ex-Mayor Michael Henchard's will. z) Whether judge is an 'activist' -- does it depend on whose ox is being gored? aa) Lawyer argues ex-judge facing misconduct hearing is victim of 'witch hunt.' bb) Did judge escape prosecution because she was 'bewitched'? cc) Cool-headed courthouse employees act fast, save popular Waco attorney's life. dd) New courthouse says goodbye to 'stay away fortress-style' architecture. ee) Montaigne and courthouse security. ff) Is Philippines Supreme Court 'subservient' to President? gg) Panel recommends removal of judge over two years' delay releasing inmate. hh) The voters weaken conservative governor's 'judicial juggernaut.' ii) Chief Justice speaks out on judicial corruption, reform. jj) Judge is ambushed, shot; his security guard is wounded. kk) Judges testify in support of a fellow judge charged with insurance fraud. ll) ABA Chief, a 'Bamian, decries AL's judicial elections, urges 'summit.' mm) It's 'Sweeps Month' for local TV 'news' shows -- judges are targets. nn) 'Quirks, oddities and wit: a continuing saga of the common law.' oo) Ex-probate judge gets three years in prison. pp) Committee short on funds to light up courthouse. qq) Minnesotan wins national judging championship! rr) The judicial news out of MI. Three (count 'em!) stories of interest today: i) SCOMI splits 4-3 on ending another perk. ii) Judge-elect was disciplined for signing clients' signatures on affidavit, lying to board. iii) Retired judge is charged with embezzling from estate. ss) Judicial news out of Illinois (or why real Minnesota-style judicial elections are better than fake, retention elections).

 The judicial news out of MI. Three (count 'em!) stories of interest today:

 a) SCOMI splits 4-3 on ending another perk. "A sharply divided Michigan Supreme Court voted Thursday to close satellite offices in Detroit and Traverse City that are used by justices who live outside the Lansing area...[The court maintains satellite offices at Cadillac Place in Detroit for...Justices [Robert Young,] Maura Corrigan and Marilyn Kelly, and in Traverse City for Justice Elizabeth Weaver...[T]he judiciary pays $265,000 a year for its Detroit office space, $62,000 in Traverse City and $100,000 a year for support services for both...." More (Detroit Free Press 11.14.2008). Comment. One is free to question why the majority chose to decide the matter now rather than leave the decision to the newly-reconstituted court in January. I don't pretend to know the answer, but if I were writing a fictionalized account of the decision, based on my experience with how appellate courts operate, I know how I'd write it. In any event, the decision could be reversed come January when the newly-elected chief justice, Judge Diane Hathaway, takes office, replacing Chief Justice Cliff Taylor, whom she soundly defeated despite being considerably outspent by Taylor and his supporters. (click here). Taylor was a part of the majority in this matter and has been with the majority in many other controversial 4-3 splits. Earlier. Links to many of my postings on the fractured, fractionalized court may be found at Voters get a choice for chief of SCOMI (The Daily Judge 10.04.2008).

 b) Judge-elect was disciplined for signing clients' signatures on affidavit, lying to board. "Detroit 36th District Judge-elect Brenda K. Sanders was suspended as a lawyer for forging her clients' signatures on an affidavit, then lying to the legal watchdog group that investigated her misconduct. When running for the bench this year, Sanders, who also is running for mayor, answered 'no' and 'not applicable' on a newspaper candidate questionnaire when asked whether she'd ever been disciplined...." More (Detroit Free Press 11.14.2008). For an article dealing with Ms. Janders' candidacy for mayor in the upcoming election to replace the disgraced former mayor, see, Judge can't be Detroit mayor, too (Detroit Free Press 11.11.2008) ("Sanders said she filed to run for mayor Oct. 14 as her Plan B in case she lost the judicial race. 'There was no way I could tell whether I was going to prevail on Nov. 4,' she said.").

 c) Retired judge is charged with embezzling from estate. Retired Clinton Township judge is a defendant - William Cannon charged with embezzling from an estate (Detroit Free Press 11.14.2008). Update. Further details (Detroit Free Press 11.27.2008).

 Judicial news out of Illinois. "A Cook County judge[, Marcella Lipinski, 66,] has submitted her resignation after she was issued a disorderly conduct citation following a recent traffic incident in which police said she used racial slurs...." More (Chicago Tribune 11.14.2008). Earlier. Judge charged with disorderly conduct after traffic incident (Southtown Star 11.06.2008). Comment. The Southtown Star's story states that when she was up for a yes-or-no retention vote two years ago, the Chicago Bar Association did not recommended retention. The association said that she "does not possess the necessary temperament and demeanor to serve as a circuit court judge." The paper quotes the Chicago Council of Lawyers as "[saying] at the time that 'Most lawyers interviewed say that she is short-tempered and gets flustered easily on the bench.'" Lipinski won the retention election in 2006 (as candidates in one-party elections the world over almost always do -- and as did all of the over 70 judges in the Cook County circuit who were up for retention this year, several of whom were rated by multiple bar screening committees as "not qualified" or "not recommended."). In MN, with our tried-and-true safety-valve system of real judicial elections rather than fake elections, a system that allows attorneys to challenge sitting judges, a real live attorney at least might well challenge a judge with questionable qualifications, thereby giving the voters a real live choice.

 'Quirks, oddities and wit: a continuing saga of the common law.' "Since 1991 I have been writing a fortnightly column in these pages about unpersuasive advocates, injudicious judges, legal entertainment and unusual litigation. A collection of those pieces, I Have to Move My Car, edited to remove repetition, inaccuracy and plain stupidity, has now been published...." David Pannick, QC (UK Times 11.13.2008). Comment. Pannick is a "practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbencher in the House of Lords." The linked to piece is "an edited version of the introduction to I Have to Move My Car, published last week by Hart Publishing (£10.99)." I discovered his columns relatively recently. I look forward to reading and reviewing the collection when/if it is published in the U.S. Another UK Times law columnist worth reading is "Professor Gary Slapper[,] Director of the Centre for Law at the Open University...[who] writes a weekly column...The Law Explored, elucidating the complexities of British law." This week's column focuses on "An American woman [Christina Downs, 24, from Dover, New Hampshire, who recently] lost a challenge to a speeding conviction after cross-examining police and peppering them with 96 questions...." More (UK Times 11.13.2008).

 Ex-probate judge gets three years in prison. "Montgomery County Circuit Judge Charles Price sentenced Covington County's former probate judge[, Sherrie Phillips,] to a 10-year split sentence with three years' imprisonment Wednesday morning, despite arguments by her attorneys and friends that she wouldn't benefit from incarceration...." She is free on bond pending appeal. More (Andalusia Star-News - AL 11.13.2008). Comment. We typically urge less-harsh treatment of everyone from Minnesota kids who bring plastic Nintendo guns with them to school to judges who veer slightly off the boring straight-and-narrow path they are expected to follow. See, e.g., my comments on a judge's conduct at Judge charged with reprising Michael Douglas' role in 'Traffic'? As to the boy with the plastic Nintendo gun & our schools' stupid zero-tolerance policies, see, entry dated 04.27.2002 titled "Zero-tolerance nonsense" (scroll down) at BurtLaw's Law & Kids. We even urged probation with home-confinement rather than prison for MN Judge Roland Amundson when he was convicted of a property offense -- see, entry dated 06.08.2002 titled "Wish list" (scroll down) at BurtLaw on Crime & Punishment, an opinion that subjected us to national ridicule (a slight exaggeration) by an extremely popular conservative blogger (whom we nonetheless like). (We can take it -- & we can dish it out.) I've held these views all my life and I've never been ashamed of them, although I've not always been free to express them. Here's a link to a campaign position paper on Crime and Punishment I posted on my campaign website in my 2004 anti-Iraq-war primary campaign against entrenched incumbent Republican Congressman Jim Ramstad, who didn't seek re-election this time around.

 Committee short on funds to light up courthouse. "For the 60th anniversary of the holiday lighting of the courthouse, Jay Barker wanted to do something special. But the money didn't come in like it has in past years. Now, there is a chance not everything will be lit up. The committee has collected $15,900, which is $2,850 short of the $18,750 it takes for the lighting portion of the project...." More (Newark Advocate 11.13.2008). Comment. Sounds like the germ of yet another BurtLaw "treatment" for a heart-warming made-for-TV Christmas movie.
For examples of my movie "treatments," see, 'Hard Times at Christmas' (The Daily Judge 02.17.2005), 'Food Courts of Madison County' (The Daily Judge 08.03.2006), 'Horror in the Courtroom' (09.08.2005), 'The slippery slope and the courthouse cat' (The Daily Judge 11.30.2007), and 'Ex-judge looks forward to return to politics after release from prison' (The Daily Judge 10.14.2006). And read on....

 Minnesotan wins national judging championship! "A southeastern Minnesota native led her dairy products judging team to a national championship. Abbie Wirt, 21, a Lewiston native, placed first overall in the 2008 National Collegiate Dairy Products Evaluation Contest, held Oct. 22 in Newark, Ohio. Her South Dakota State University team also placed first overall. A total of 42 undergraduates and 16 graduate students from 15 schools competed...." More (Agri News 11.11.2008). Comment. If I were to produce a movie version of this unlikely but inspiring rise of a modest Minnesotan to national fame (and perhaps fortune?) in the area of judging, I would want theme music similar to that used in this movie. As the award was being announced and the music and applause reached a Wagnerian crescendo-beyond-comprehension, I think I'd project on a backlighted screen behind our winner pictures of Minnesota's incomparable triumverate of SCOTUS judges, ghost-like figures of judicial magnanimity and ease, welcoming her to the inner sanctum of Minnesota judicial greatness, The Minnesota Judicial Hall of Fame. The triumverate? -- I refer, of course, to Pierce Butler, Harry Andrew Blackmun, and Warren Earl Burger.

 Judges testify in support of a fellow judge charged with insurance fraud. "A state Supreme Court justice. A retired major general who served as a commander at Guantanamo Bay and worked with the CIA. The president judge of the Pennsylvania Superior Court. Those were three of the witnesses called by the defense yesterday to bolster claims by former state Superior Court Judge Michael T. Joyce that he was injured after an August 2001 slow-speed car accident. He received insurance payouts for the accident totaling $440,000. The U.S. attorney's office has charged Mr. Joyce with money laundering and mail fraud, alleging that he was never really injured and continued to scuba dive, inline skate and play golf after the accident...." More (Pittsburgh Post-Gazette 11.11.2008). Comment. I've criticized the overemphasis of federal prosecutors under Bush on "getting" state court judges and other officials, often Democrats, as well as public figures like Martha Stewart, over this and that. Moreover, it's my opinion that some, maybe many, fed prosecutors are unfair in the way they go about it even when prosecution may be justified -- as by using "perp walks," overcharging, playing tough rather than playing fair, etc. But I'm too far from this case to have an opinion. It's good for the judge's chances that fellow judges corroborate his testimony about intense pain, etc. And I'll say this, one with chronic pain that might make sitting at a chair all day and doing mental work intolerable, might, through use of pain medicines and sheer willpower, be able to force himself to do certain things like playing golf, etc., for brief periods. So, we'll see....

 ABA Chief, a 'Bamian, decries AL's judicial elections, seeks 'summit.' "The president of the American Bar Association[, Thomas Wells, Jr. of Birmingham,] says enormously expensive judicial races, like this year's $5 million slugfest for a Supreme Court seat in his home state of Alabama, threaten the public's confidence in the judicial system...At his request, the bar association is urging judicial, legislative and executive branch officials from each state to gather in Charlotte, N.C., in May for a summit...." More (Boston Herald 11.09.2008). Comments. Note the generalizing from the specific. In logic, it's called the "myth of central position." Because the sky is falling in his home state, Mr. Little -- er, Wells -- thinks the sky is falling everywhere. Alabama may have a problem. I won't presume to tell my friends there how to run their show. But have you noticed that no matter how many times the folks here in MN who are arguing for "reform" here have to cite bad elections in other states? Instead of saying the sky is falling here, which simply isn't true, they say it likely will be falling soon unless we adopt the "reforms" they've proposed. What are the "reforms" they trot out? Same old, same old -- i.e., the plan beloved by college political science profs, the Missouri Plan (or, as I call it, the Ozark State Plan), the one Missouri saw fit to adopt to counteract the corrupt machine politics of our old friend from political science horror stories, Boss Pendergast. We, of course, don't have a Boss Pendergast in MN. And there are a few other tennsy-weensy problems with their arguments. First, if our system is so in need of emulating that of the Ozark State, how come our state supreme court has been rated #5 in the U.S. and Missouri's #47? See, SCOMN #5, SCOMO #47 -- so let's adopt the Missouri Plan? (The Daily Judge 03.11.2008). Second, why are so many Missouri folks pushing to change or abandon the MO Plan? Third, why is it that despite the Chicken Little warnings, our judicial elections continue to be clean? (What'd the candidates in the two mildly-contested SCOMN elections spend this year -- a combine total maybe of $1.98?) My view is that the one thing that leads to big spending on state supreme court elections in other states is the perception by either business (the chamber of commerce types) or labor (trial lawyers, the plaintiff's bar, etc.) that the decisions are out of balance. That can happen if the legislature blows it by unfairly favoring one side in its legislation or if the court stretches legislation by interpreting it unfairly to favor one side or the other. Hey, it hasn't happened here, and I see no signs it will. Moreover, the Ozark State Plan doesn't take politics out of judicial selection any more than the MN Plan has prevented Andersen, LeVander, Anderson, Quie, Pawlenty, Perpich or Carlson from appointing their pals or supporters. What the tried-and-true MN Plan does is provide a "check" (as in hockey check) on the governor: if the governor goes too far one way or the other and appoints incompetent or biased judges, public-spirited attorneys come forward and challenge the incumbents, giving the voters a real choice (which they don't get in the fake one-candidate Soviet-style "retention" elections provided by the Ozark State Plan). Further reading. Why SCOMN's novice chief should listen to SCOWIS's more experienced chief (The Daily Judge 06.18.2008); Strib. urges longer terms for judges, no role for voters in their selection (The Daily Judge 02.05.2008); Election of judges as a check on corruption and as guarantor of judicial independence from other branches of government (The Daily Judge 04.01.2008); The Return of the Ancient Mariner -- or is it Minnesota Scariner? (The Daily Judge 04.06.2008); 'Reality check' on Missouri-Plan 'merit' selection commissions (The Daily Judge 08.23.2008); 'If you want to become a judge, go to law school with a senator' (The Daily Judge 04.01.2008); Annals of cronyism: MN's Pawlenty appoints another colleague to bench (The Daily Judge 06.25.2008); Gail Chang Bohr wins election to open seat on district court in MN (The Daily Judge 11.05.2008).

 It's 'Sweeps Month' for local TV 'news' shows -- judges are targets. "If you are called into court for any reason, you could end up in jail if you leave the judge waiting. But the same rules don't apply to the judges. In fact, we discovered in Nashville's courts that some judges leave people waiting and waiting for justice. So where are the judges? That was the question behind a NewsChannel 5 investigation, more than three months in the making. To find out, our NewsChannel 5 Investigates team took to the air, set up surveillance on the ground, even took hidden cameras inside the courthouse...." More (NewsChannel 5 - Nashville 11.10.2008). Comments. a) One of the judges targeted was Gale Robinson, one of Davidson County's General Sessions Court Judges. Here's a brief excerpt to give you the flavor of the I-Team's report on him:

Come to [Judge] Robinson's courtroom late, and the judge just may lay down the law...The judge who was supposed to hear [Mike] Baker's case was Judge Robinson himself. But on this day, the judge wasn't on the bench. In fact, Robinson was nowhere near the courthouse. Instead, we tracked him across town to a Belle Meade church, where we spotted the judge working a second job as a funeral director. That's right -- collecting his judge's salary of almost $150,000 a year -- while making even more money for his family-owned business... Our hidden cameras were there, as Robinson's courtroom turned into a waiting room. While people waited to be taken to another judge and a man phoned his boss to beg for more time to report to a new job, Robinson was taking the wheel of a hearse -- one of the duties of his second job....

b) Speaking specifically, we know nothing about Tennessee's approach to moonlighting or daylighting at other jobs by judges, nothing of Judge Robinson's work habits, nothing of the fairness of the story. But, if we remember, we'll check tomorrow for the web's written report on tonight's installment of this investigation. :-) c) Speaking more generally, we do know that many, many courts throughout America are scandals "waiting to happen," especially now that so many chief judges are publicly complaining about how hard they're working and how they're underpaid and courts are underfunded. All it takes in an individual case is a tip from an insider and a little footwork by an I-Team reporter. They're scandals waiting to happen because the courts don't have policies in place designed to prevent them from happening. The simple preventative for this type of scandal? Require all judges to fill out timesheets in the same way as other court employees and report as "vacation time" or "sick leave," to be subtracted from allotted vacation and sick leave, all unofficial time away from the court during their regular work hours. Judges who properly think of themselves as "professionals" and who regularly take work home at night and otherwise give the public good weight -- and they are in the majority -- don't like the idea of such a requirement. But they're foolish not to insist on such a requirement. These kinds of exposés are nothing new. To take just one of many examples, back in 1998 a San Jose Mercury News investigation "revealed a group of jurists routinely took off Fridays to hit the links -- with little evidence they were doing so on vacation time...." (San Jose Mercury News 07.24.2005, referred to in Daily Judge posting titled Dept. of Judicial Dangers: Golf). The key words there are "evidence" and "vacation time." It's all right for a judge to go shopping or play golf during normal working hours so long as she does it in the right way, reporting it on a timesheet and subtracting it from allotted vacation time. A judge who does it in the wrong way is playing Russian roulette with her own career. Related reading. a) Since 2000 I've been publicly advocating that courts ought to post judges' trips, their expense account reimbursement requests, their timesheets, etc., on court websites. See, my 2000 essay Judicial Independence and Accountability. b) For some of my thoughts on local TV "news" businesses and their sweeps "journalism," see, my mini-essays/comments at Another I-Team-type report: Judge caught on tape away from bench! (The Daily Judge 03.01.2006); More on the judge caught playing hooky (The Daily Judge 02.13.2006); Annals of TV 'sweeps' and judges 'caught on camera' (The Daily Judge 02.21.2006); What he found on a visit to Jeddah's general court (The Daily Judge 07.21.2007).

 Whether judge is an 'activist' -- does it depend on whose ox is being gored? "A High Court judge with a "hatred of free speech and the popular press" is bringing in a privacy law to the UK 'by the back door' a national newspaper editor has claimed. Paul Dacre, editor-in-chief of the Daily Mail, cited rulings by Mr Justice Eady in favour of the Formula One boss, Max Mosley, against the News of the World and an unnamed celebrity who had an affair with a married woman as examples of the erosion of freedom of expression. He claimed the judge had 'a virtual monopoly of all cases against the media' and was therefore able to use the privacy clause of the Human Rights Act to thwart attempts to defend public decency by shaming those in high places found to have committed immoral acts...." More (UK Independent 11.10.2008). Want to read summaries of selected decisions of the 'privacy law judge'? Click here (BBC News 11.10.2008). Compare, Polly Toynbee: Judge Dacre dispenses little justice from his bully pulpit (UK Guardian 11.11.2008) (criticizing the Daily Mail editor). Comments. a) Many times during a career, a common law judge, especially at the appellate level, will find himself facing a case in which different but equally important constitutional provisions are seemingly in conflict and it is his task to somehow resolve the conflict. I dealt with how judges resolve such conflicts in my essay entitled, "The Voices of a Judge -- The Judicial Opinions of Chief Justice Peter S. Popovich of the Minnesota Supreme Court," The Judicial Career of Peter S. Popovich (MN. Justices Series No. 10, 1998) (detailed citations omitted), excerpted at BurtLaw on a Supreme Court Justice's 'votes,' where I said, in part:

One of the things required is the recognition that life isn't always a simple matter of choosing good over bad, that there are complexities, gray areas, conflicts of good versus good. "Anybody can decide a question if only a single principle is in controversy" (Justice Felix Frankfurter), but the world of truth is contradictory. "Mad contradictions flavor all our dishes" (Ralph Waldo Emerson). For every truth, there is a counter-truth: individual rights and majority rule; freedom and order; fifty states and one indivisible nation; religion and secularism; change and stability; privacy and knowledge; new truths and old ones; discretion and rule; mercy and justice; and so on. If "the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function" (F. Scott Fitzgerald), then one of the tests of a first-rate appellate judge, when these "great antinomies...present themselves like gladiators for our favors," is the ability to "discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms" (Professor Paul Freund). Robert Frost said, "Life sways perilously at the confluence of opposing forces" such as Justice and Mercy or Change and Stability. One might also say that life is even more perilous if one is interested only in Change or Youth, on the one hand, or Stability or Age, on the other. As in the case of any antinomy, it is when the two opposing concepts are in tension with each other that creative thinking and acting occur.

b) Brit courts have an expanded notion of the right of privacy and have extended it to protect even public figures from some types of adverse publicity relating to "private" matters, publicity that would not even be deemed defamatory in the U.S., much less actionable. In other words, in many more instances the Brits are inclined to hold that an individual's privacy rights "trump" free speech/free press rights. My view is that while it's harder to prevail in the U.S., it's still too easy to use defamation suits as a form of legalized extortion or to harrass, and I believe the cause of action 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 (The Daily Judge 10.12.2005). See, also, Bill to protect American authors from 'libel tourists' (The Daily Judge 07.14.2008), and More on ILL justice's big defamation award against paper that criticized him (The Daily Judge 11.20.2006). c) One judge having "a virtual monopoly of all the cases against the media"?  If true, it's a bad idea. As regular readers of The Daily Judge know, I'm generally against specialized courts and against specialization by trial or appellate judges. In most instances, the "cons" outweigh the "pros," in my opinion. What the system supposedly gains in consistency, efficiency, and other values associated with specialization, it loses in narrow-mindedness, rigidity, and other assembly-line values associated with "experts" and bureaucracies. For the ABA's views, see, Concept Paper on Specialized Courts (ABA 06.25.1996). On a typical multi-member state appellate court, assignment of cases ought to be before arguments and/or decisional conference by a random rotation method, not assignment by specialty, area of interest, or any other criteria. Any appellate judge, of course, is free to develop over time special areas of interest -- as by extra reading, directed thinking, etc. -- and to bring his extra knowledge and experience (and outlook) to bear during the decisional process, and the other judges, including the judge to whom the case is assigned, ought to be free to express their views, including by circulating memos during the process and by specially concurring or dissenting in writing from the circulating opinion. Common law judging is, and ought to continue to be, the last refuge of the generalist whose main expertise is in the art of common law judging. Stated differently, any good common law judge, despite maybe having areas of special interest, is at heart a generalist who knows how to address each case with an open mind, reading the briefs, record and transcripts himself, educating himself anew about the relevant law, listening to his colleagues, etc., then applying the law as he sees it to the individual case as it stands. Further reading. On the importance of appointing highly qualified people of diverse backgrounds to multi-member appellate courts, see, my essay titled A 'farraginous' Supreme Court (The Daily Judge 06.23.2005).

 Lawyer argues ex-judge facing misconduct hearing is victim of 'witch hunt.' "Richard Sasso, who resigned as municipal court judge in Bridgewater, Warren, Bound Brook and Watchung earlier this year, is the victim of a witch hunt. That's the argument his lawyer, Anthony Vignuolo, will be making tomorrow (Nov. 10) when Sasso faces a hearing on judicial misconduct charges...." More (New Brunswick Home News Tribune 11.09.2009). Comment. If you like to read People or Us magazine, then you'll like reading this detailed summary of the events, claims, etc. Interested not just in judicial 'witch hunts' but in 'bewitched' judges? Read on....

 Did judge escape prosecution because she was 'bewitched'? "A Senior military judge has escaped prosecution for attempting suicide because some of the SA National Defence Force's top brass allegedly believed her claim that she had been bewitched...At least two senior officers claim that Nomoyi escaped sanction after some top brass accepted her explanation that she was 'bewitched' when she tried to kill herself...." More (The Times - South Africa 11.08.2008).

 Cool-headed courthouse employees act fast, save popular Waco attorney's life. Courthouse employees scramble to help save life of Waco attorney Mike Roberts who collapsed (Waco Tribune 11.08.2008).

 New courthouse says goodbye to 'stay away fortress-style' architecture. "Daylight is everywhere. If you're a judge, for example, your private chambers are housed in a diamond-shaped annex at the rear of the main courthouse. To get to your courtroom in the main building, you walk across a glass bridge, perhaps an ironic play on the Bridge of Sighs in Venice on which, long ago, condemned prisoners walked from court to prison. At Springfield the walk is delightful and psychologically renewing, as you experience a view of sky and treetops before you move on to your courtroom... The response to the threat of terrorism, which has turned many government buildings into fortresses, is here almost invisible. You have to look to notice that the handsome garden walls are car-bomb barriers, and the glass of the façade is made blast-proof by columns...." From an interesting review by Robert Campbell of the new "delightful as a garden pavilion" federal courthouse in Springfield, MA designed by Moshe Safdie, a well-known Cambridge-Somerville-based architect (Boston Globe 11.09.2008). Comment. As readers of The Daily Judge know, I'm not a fan of fortress-style courthouse architecture. I think, in general, too many courthouse architects think their client is just the judiciary and the other courthouse regulars. While courthouses shouldn't be the judicial equivalent of glass houses, they also shouldn't be concrete SuperManic armed fortresses of solitude, hidden from the sunlight. Although it's a cliché, courthouses belong to all the people, not just to judges and attorneys, and therefore, above all, courthouses ought to welcome people and promote all the civic virtues such as equality before the law, fairness, openness, freedom, liberty, and, yes, security. Instead, too many of the new ones seem to say only "Stay away!" -- with the first person any visitor sees being less-than-friendly uniformed security guards. I personally know nothing of the new courthouse in Springfield, MA. I hope it's as open and sunny as the Globe's reviewer suggests and that it "works" in all the other ways. Further reading. See, Building courthouses with security in mind, Another soul-less public building? Judge Simon Brown is Master of the Inner Temple Garden, Airports, subways, museums and courthouses, Clint Stephens, courthouse custodian -- and more, Might Mr. Stephens' flowers lead to better government? and How about a courthouse surrounded by & filled with flowers?

 Montaigne and courthouse security. One can argue that increased courthouse security and fortress-style courthouse architecture may make things worse. There are certain troubled folks who focus their obsessive wrath on the too-well-protected, and if they can't get by metal detectors they can just wait outside. I still think the best prophylactic for a judge is to treat all people who come before him with the greatest respect and court-esy. Sound naive? So be it. As authority, I offer this from Emerson's Essay on Michel de Montaigne in his Representative Lives (1850):

In the civil wars of the League, which converted every house into a fort, Montaigne kept his gates open and his house without defence. All parties freely came and went, his courage and honor being universally esteemed. The neighboring lords and gentry brought jewels and papers to him for safekeeping. Gibbon reckons, in these bigoted times, but two men of liberality in France, -- Henry IV and Montaigne.

Further reading. Montaigne (Wikipedia); Montaigne's Essays (Oregon State).

 Is Philippines Supreme Court 'subservient' to President? "A constitutionalist on Friday said that if recent decisions of the Supreme Court on controversial cases are used as indicators, then majority of the justices are not independent. This was the opinion of Fr. Joaquin Bernas as he talked to reporters during the re-launching of the Supreme Court Appointments Watch (SCAW)...During the forum, Bernas expressed concern over the looming prospects of a Supreme Court which would be filled by appointees of President Gloria Macapagal Arroyo before the end of 2009. 2009 is the year when seven out of the 15 justices are due to retire...." Details (GMANews 11.07.2008).

 Panel recommends removal of judge over two years' delay releasing inmate. "A three-judge panel made the rare recommendation Friday to remove a sitting judge [Marion Superior Court Judge Grant Hawkins] from the bench, saying disorganization in his court left an Indianapolis man languishing in prison for two years after DNA evidence exonerated him...." More (Indianapolis Star 11.08.2008). Comment. One wonders if any appellate judge has ever been disciplined for negligent delay in writing an opinion assigned to him after his colleagues and he have firmly decided either to reverse some poor fellow's conviction outright on the ground of insfficient evidence or to release some fellow from prison early after shortening his sentence. One guesses that negligence of this sort never comes to the attention of the disciplinarians. Is the disparity, if there is one, the judicial version of the disparity, if there is one, in the number of disciplinary petitions filed against solo practitioners as compared with petitions filed against lawyers in silk-stocking law firms?

 The voters weaken conservative governor's 'judicial juggernaut.' "[Former MI Gov.] John Engler spent 12 long, patient years as governor placing nearly 200 judges -- including three Supreme Court justices -- onto state courts who supported his conservative judicial philosophy. But a little-known Wayne County judge toppled one of those justices from his seat on Tuesday, sending shock waves through business and Republican groups and foreshadowing what could be a substantial weakening of the judicial juggernaut Engler created...." More (Chicago Tribune 11.08.2008). Comment. As the story points out, the court is involved in Congressional redistricting. The seven-member court will go from one with five GOP justices, but one of whom often sides with the Democrats, to one with four GOP justices, one of whom is a swing vote, and three Democrat justices. Further reading. Our 11.05.2008 posting, Voters in Michigan unseat Chief Justice Taylor, contains links to some of our detailed previous entries on the fractured, politicized supreme court in Michigan.

 Chief Justice speaks out on judicial corruption, reform. "Two retired judges were suspected to be corrupt, Chief Justice Tan Sri Zaki Azmi said a convention on 'Integrity, the Catalyst for Sustainable Development' [in Kuching]...On the judges still serving the judiciary, he said there were 'one or two' who were not doing their work...He also [said he] wanted the judges to write shorter and simpler judgments to reduce the backlog of cases. 'One judge at the Commercial Court Division wrote 500 judgments within two years. How was it that this judge could, but the others could not?'" C.J. Zaki pointed out that a system with unreasonable delays tempts those in a hurry to offer bribes. More (New Straits Times - Malaysia 11.08.2008). Comment. C.J. Zaki submitted to an interview at the Palace of Justice. Here's a brief excerpt from one of his responses on the need for good organization:

[W]hen I was the president of the Court of Appeal, in a matter of two and a half months I sorted out 50,000 files (volumes) and reduced the number of clerks assigned to handle the files from 13 to only two. Now, you can get a file from the Court of Appeal in three to five minutes. Previously, 13 people looked after 13 stacks of files and each one of them had his or her own system. But this (change) could only be brought about with the support of the staff. If the staff had not given their support, I would not have been able to do it....

More (Bernama.Com 11.08.2008). Compare. Not quite judicial renaissance yet, says Anwar (Malaysian Insider 11.09.2008); Malaysia judge frees blogger arrested under controversial security act (Jurist 11.07.2008).

 Judge is ambushed, shot; his security guard is wounded. "A Regional Trial Court judge in Negros Oriental was wounded while his security escort was killed in an ambush staged by unidentified men early Saturday in Guihulngan City...RTC Branch 64 Judge Mario Trinidad was on his way home driving a multicab when he was waylaid by two armed men at around 12:30 a.m...Trinidad's civilian bodyguard, Dolfo Guzman, who was driving a motorcycle behind the judge's multicab, was killed...." More (Inquirer - Philippines 11.08.2008).

 11.08.2008: Remembering Dr. R. Galen Hanson (08.04.1939 - 11.08.2004). Today, 11.08.2008, is the fourth anniversary of my incredibly-talented and -accomplished brother's death. Here's a link to a photographic tribute I posted on the occasion of his death. See, also, my untitled posting dated Thursday, 11.18.2004 (BurtonHanson.Com) (scroll down); the one dated Thursday, 08.04.2005 and titled Remembering a man who should have run for office -- unlike me, he might've won (BurtonHanson.Com) (scroll down); and the one dated Tuesday, 11.08.2005 and titled A Boy's Will (BurtonHanson.Com) (scroll down).

 Bonus Headline-of-the-Day: Judge mugged near Obama's house Monday. "The night before Election Day, a Cook County judge was mugged just blocks from Barack Obama's home in the Kenwood neighborhood. Judge Eileen Brewer, a highly rated Harvard Law grad like Obama, lives a few streets away from the president-elect. The robbery happened Monday night, hours before voters would elect Obama president and retain Brewer as a judge. 'He really beat me up,' Brewer said of her attacker. She had just dropped off her son's tutor and was on her front porch when he struck...After fighting unsuccessfully to hang onto her purse, Brewer chased the mugger down the block, shouting...." More (Chicago Sun-Times 11.07.2008).

 Headline-of-the-Day: Determined Texas woman, 92, votes in ambulance after election judge, worker climb aboard. "Betty Owen is 92 and after a stroke four years ago, needs a feeding tube and can't walk. But she was determined not to miss Tuesday's election. She arrived at her polling place on a gurney in an ambulance, where an election judge and support worker climbed aboard with an electronic voting machine and let her cast her ballot...." More (Baltimore Sun 11.07.2008). Comment. In November of 1952, my then-97-year-old great-grandmother, Britha Eriksdatter Hanson, who was born 05.01.1855 and lived to 100 and whom I got to know well, was in the Swift-County Benson Hospital suffering from pneumonia. One of my grandfather's brothers, her son, wanted to let her die. Dr. Tobias Eberly, M.D., would have none of that. He saw her through the crisis and, as I indicated above, she lived another three years, lucid and engaged until her last breath. As a sign of how engaged she was, a) she insisted on voting, and if my memory is correct did (by absentee ballot), and b) in the middle of the night after the polls were closed, she woke up and her first words were, "Did Ike win?" Yeah, Britha, he did.

 Current Question: Who will be President Obama's first appointment to the Supreme Court? These are the favorites, with their percentages, among the respondents to the Harvard Law Record's poll thus far: Elena Kagan 38%; Cass Sunstein 17%; Sonia Sotomayor 17%; Kathleen Sullivan 0%; Larry Tribe 4%; Seth Waxman 4%; David Tatel 0%; Merrick Garland 0%; Someone else 21%. More (Harvard Law Record 11.07.2008).

 Hanson, tallest prof at Harvard Law, wonders if we're all just volleyballs. "The ordinary Harvard Law School chair lecture does not necessarily feature a cast as diverse as a Fellini film, Alan Greenspan, or Wilson, the anthropomorphic volleyball from the 2000 movie Castaway. That is perhaps a testament that Jon Hanson, who was appointed the Alfred Smart Professor last Wednesday evening, is no ordinary HLS professor. Hanson has defined himself as a pioneer in the interdisciplinary study of law and mind sciences. He is also, as Dean Kagan joked, probably the tallest member of the faculty 'and the only Smart Professor of Law.'" From Chris Szabla, Hanson wonders if we're all just volleyballs (Harvard Law Record 11.07.2008). Comment. Is it only at HLS that "chair lectures" are delivered to a "packed" venue? Or is it only when a tall smart prof named Hanson gives one? Anyhow, Hanson's lecture was handsomely/hansonly attended. During it, he "took on the notion, enshrined in law by free market ideology, that individuals are truly free to make choices, and that the market is calibrated to respond to those choices in turn. Instead, Hanson suggested, law ought to take into account situational forces that affect human decision-making." Riffing on the current Alan Greenspanian/Ayn Randesque financial crisis, Hanson engaged in an "extended discussion of [the movie] Castaway's 'Wilson,'" as played by a volleyball, pointing out that Wilson "not only [was] personified by [Tom] Hanks in the film, but came to be seen as a human figure by the audience as well -- the reason a scene in which Wilson floats away from Hanks is one of the most moving in the film." Hanson "implored the audience to not just unmask Wilson's true nature [as a volleyball], but our own. We ought to ask, he suggested, whether we are all volleyballs." And the answer to that question is, I think, that we are not "all volleyballs" any more than we are, in John McCain's immortal words, "all of us Georgians." It is more accurate to say that each of us may be thought of as a person inside of a volleyball, with enough free will to enable each of us to shift his weight around a bit in order to affect the course of the volleyball as it's bandied back and forth. But some of us may also be thought of as having broken out of the volleyball and morphed into "players," so that we are able to actually and directly participate in the game -- maybe even occasionally "spiking the ball for a better St. Paul," as a volleyballer named Spike Hanson argued he could do in his campaign literature for some city office back in the 1970's (I'm not kidding -- I think I still have a copy of his poster or handbill). And some of us? Well, we're able to walk away from the game and, following the old virtues, find relative peace doing so by avoiding as much as possible the tired old games people play. Cf, Styne, Comden, Green, 'Time, I'm just taking my time,' Subways Are for Sleeping (Original Cast Album 1962) (a song I listened to before leaving my dorm room for every final exam at S.M.U. in Dallas in the spring of 1962 -- hey, I got an "A" in every one of them). Further reading. Click here for a list of his provocatively-titled publications. Hanson's Blog: The Situationist (HLS Project on Law and Mind Sciences).

 Judge who retired gets hands knuckled for expressing impatience, irritation. "A state watchdog agency rebuked a former Orange County Superior Court judge [Judge John M. Watson, now retired,] Thursday for behaving rudely on the bench, including one case in which he repeatedly mocked attorneys and told them their case was a waste of his time...It was the second time the commission had publicly admonished Watson. In 2006, the commission scolded Watson for using his taxpayer-funded courtroom clerk to help with secretarial tasks involving the day-to-day management of two rental properties he owned. Twice previously, the commission had sent Watson cautionary letters about his behavior...." More (LAT 11.07.2008). Comment. Might some lawyers and their clients need to hear what the good judge said, i.e., that their squabbling was a waste of everyone's time and money? Further reading. Do the Marquis of Queensbury Rules apply in your courtroom? (The Daily Judge 08.26.2007).

 Profile of a gentle judge who presided with courtesy and lubricating humor. Two fine fellows connected with Maine were Supreme Court Justices, according to a piece titled Maine's Legal Eagles (Maine Today 07.07.2005), one being the relative unknown, Nathan Clifford, the other being the well-known Melville Fuller, who became Chief Justice. "With dignified good looks, long white hair and a full mustache, he was something of a Mark Twain look-alike. Twain is said to have been stopped on the street once by someone seeking the chief justice's autograph. The humorist obliged by writing, 'It is delicious to be full, but it is heavenly to be Fuller.'" In 1953 Justice Felix Frankfurter wrote a delightful "talk" titled Chief Justices I Have Known (reprinted in The Supreme Court Historical Society Yearbook 1980), from which the following currently-relevant lines are extracted:

Fuller came to a Court which wondered what this little man was going to do. There were titans, giants on the bench. They were powerful men, both in experience and in force of conviction, and powerful in physique, as it happened. For myself, I think all Justices of the Supreme Court should be strong, big, powerful-looking men! Certainly those whom he met there, who welcomed him courteously but not hopefully, were as I've described them. Believe it or not, there's ambition even in the breasts of men who sit on the Supreme Court of the United States. There's a good deal to be said for the proposal of Mr. Justice Roberts that no man should ever be appointed to the Chief Justiceship from the Court....

*     *     *

They looked upon him, as I've indicated, with doubt, suspicion, but he soon conquered them. He conquered them and they soon felt that the man who presided over them justly presided over them. He had gentle firmness. He had great courtesy. He had charm. He had lubricating humor. Justice Holmes was fond of telling a story. In his early days, he said, "I'm afraid my temper was a little short." And there could hardly be two men more different than Mr. Justice Holmes who wielded a rapier, and Mr. Justice Harlan, who wielded a battle-axe. A rapier and a battle-axe locked in combat are likely to beget difficulties for innocent bystanders. Justice Harlan, who was oratorical while Justice Holmes was pithy, said something that seemed not ultimate wisdom to Holmes. Justice Holmes said he then did something that isn't done in the conference room of the Supreme Court. Each man speaks in order and there are no interruptions, no cut-ins or cuts-in, whichever the plural is –because if you had that you would soon have a Donnybrook Fair instead of an orderly proceeding. But Holmes said, "I did lose my temper at something that Harlan said and sharply remarked, 'That won't wash. That won't wash.' "Tempers flared and something might have happened. But when Holmes said, "That won't wash," the silvery-haired, gentle, small, Chief Justice said, "Well, I'm scrubbing away. I'm scrubbing away."

He presided with great gentle firmness. You couldn't but catch his own mood of courtesy. Counselors too sometimes lose their tempers, or, in the heat of argument, say things, and there was a subduing effect about Fuller. Soon these men, who looked at him out of the corner of their eyes, felt that they were in the presence of a Chief whom they could greatly respect. I have the authority of Mr. Justice Holmes, who sat under four chief justices in Massachusetts before he came down to Washington, and under three in Washington, that there never was a better presiding officer, or rather, more important in some ways, a better moderator inside the council chamber, than this quiet gentleman from Illinois.

 Top court reverses convictions, awards new trial because Judge Dodd nodded. "A pair of drug traffickers could not have received a fair trial because a judge fell asleep for up to 20 minutes at a time during their trial, the High Court has ruled...." More (Sydney Morning Herald 11.06.2008). Comment. We've come across lots of reports of sleeping going on during trials -- e.g., sleeping by defendants, sleeping by judges, sleeping by jurors -- also highly impermissible yawning by jurors. We've also seen stories about people who use the courthouse as home, sleeping there. And we posted a piece about judges who take naps in chambers -- we're for it, if it helps make them better judges. The judge in this case was an Aussie named Ian Dodd, dubbed "Judge Nodd, the sleeping judge." He retired after his sleeping during trial became a public matter. It turned out he suffered from sleep apnea. Generally, we favor treatment and understanding in such cases, with forced or nudged retirement being the option of last resort. BTW, we recall a judge who had a way of listening with his eyes closed; he appeared asleep at times but really heard every word you said, as he demonstrated by his responses time and again. It's BurtLaw Rule of Thumb #164: "You can't tell if a judge (or anyone else) is asleep by merely looking at her eyes; she may well be very much 'in the moment.'" I often fall asleep at night with the radio on, tuned to BBC News, and wake to it. It's not unusual for me to recall news stories "heard" while I was asleep. Some of us geniuses can actually do two things at once. Holmes, e.g., typically wrote letters to his pen pals while listening to arguments -- the letters are among the best in the language and are collected in volumes every lawyer and every judge should read. See, e.g., The Holmes-Laski Letters. BTW, the allegation that SCOMI Chief Justice Cliff Taylor may have been guilty of NWP (nodding while presiding), an allegation he denied, was used against him in the recent contest that resulted in his defeat. See, Voters in Michigan unseat Chief Justice Taylor.

 Why a few GOP judges in one TX county survived Democratic tornado that swept most from office. "Jurists have a few theories on why some Republicans made it through, including the possibility that some voters simply didn't complete their ballots. But the most common one is that voters were wary of Democrats with complicated or unusual names. The GOP judge with the highest percentage of votes was civil Judge Sharon McCally, whose opponent was Ashish Mahendru. Other Democrats who lost were Mekisha Murray, Andres Pereira and Goodwille Pierre. They lost to incumbents Mark Kent Ellis, Patricia Kerrigan and Joseph Halbach, respectively...." More (Houston Chronicle 11.06.2008). I note in another source that Indian-American R. K. Sandill, a Democrat, defeated incumbent Republican Judge Sharlyn Wood, so TX voters didn't reject everyone with a "complicated or unusual names." More (Express India 11.08.2008). Comment. I think the final body count in Harris County was 22 GOP judges ousted by Democratic challengers, with four surviving challenges. Unlike MN, Texas judicial candidates are identified by party. The result is that straight-ticket voting can affect judicial candidates. In the past, when the GOP was ascendant in Harris County, the GOP judges benefited. "Such is life" or "Those who benefit by being Republicans sometimes are hurt by being Republicans." We commend to our good friends in Texas the historically-tested tried-and-true Minnesota Plan, which is much better than either the TX Plan or the Missouri Plan. The MN Plan provides voters with a say in judicial selection but doesn't allow for identification of candidates by partisan affiliation on the ballot. I discuss some of this in my essay, Why SCOMN's novice chief should listen to SCOWIS's more experienced chief (The Daily Judge 06.18.2008). For an in-depth argument supporting the "Minnesota Way" (political favoritism in appointments by governors, but safeguard that allows challenges by other lawyers in real nonpartisan elections with no ballot identification of affiliations of candidates, some of whom accept endorsements from various groups/parties and some who do not) over the extreme polar-opposite approaches in Texas (political appointments and wildly partisan but real elections) and Missouri (fake nonpartisan selection plan with fake elections), click here.

 Is Harvard Law now in direct control of two branches of our Government? Senator Obama's election as our 44th President means that for the first time in our history graduates of Harvard Law School, known in Cambridge, MA as "The Law School," will directly control two of the three Branches of Government, the Supreme Court and the Executive Branch. a) HLS's domination of SCOTUS. Currently, five of the nine Justices of SCOTUS (Chief Justice John Roberts, and Associate Justices Antonin Scalia, Anthony Kennedy, David Souter, and Stephen Breyer) are graduates of HLS, and a sixth, Ruth Bader Ginsburg, attended HLS before transferring to Columbia Law School when her husband took a job in NYC. b) HLS's only POTUS. While the relationship of HLS to SCOTUS, like that of HLS to LEIA (Legal Education In America), borders on being an example of Freudian domination-submission, the relationship of HLS to POTUS has been more indirect. The only HLS graduate before Obama to be elected President was Rutherford (a/k/a Rutherfraud) Birchard Hayes. Hayes, you may remember from one of your American history courses, lost the popular vote in the Election of 1876 and couldn't muster a majority in the Electoral College. Indeed, his opponent, Tilden, was just one vote shy of winning in the Electoral College. But Hayes shamelessly snatched victory from Tilden by using his Harvard-learned skills to negotiate the notorious "Wormley House Agreement" (a/k/a "Compromise of 1877"). That selling-of-one's-soul agreement assured Southern Democrats that in exchange for his getting the Presidency, Hayes would end military occupation of the defeated Southern States by Union troops and end Reconstruction. c) Why no POTUSES from HLS since then? Here's a simple answer that maybe has a grain of truth: Discerning that they could use their HLS-learned skills to control the Executive Branch without going through the mess Hayes went through, Harvard Law grads thereafter became notorious in Washington and elsewhere as mild-mannered behind-the-scene aides, wielding power through persuasion and through letting others serve as the public face of power, as "goodwill ambassadors," etc. During the FDR years, for example, Justice Felix Frankfurter, the renowned Harvard Law prof and FDR adviser (later member of SCOTUS), recruited large numbers of HLS acolytes -- his "Happy Hotdogs" (see, Time Magazine 01.16.1939) -- to advise FDR, run his many newly-created federal administrative agencies and commissions, etc., i.e., to run the Executive Branch indirectly. Indeed, just to give you an example, my class at HLS alone has had top advisers inside the White House during the Nixon, Ford, Carter, Reagan, Bush (I), and Clinton Presidencies. I don't think any of my classmates have advised Bush II -- which just goes to show what can happen to a President who ignores the best HLS has to offer. (Hey, Alberto Gonzales wasn't a classmate of mine.) d) HLS in direct control of SCOTUS and POTUS -- the new paradigm? The ultimate point of this meandering mini-essay is that HLS now will not just have indirect control of the Executive Branch and direct control of the Judicial Branch but, for the first time in our nation's history, direct control of both of them. Stated differently, this was an historic election in more ways than one. Huzzah! Selah! You heard it here first. e) What next -- HLS control of all three branches of government? Maybe so. But consider this possibility: with control by HLS of all three branches of government at least in striking distance, wouldn't it be ironic indeed if President Obama were to dilute HLS' control of SCOTUS by his appointments? Further reading. a) Harvard Law on the rise again (Boston Globe 10.19.2008). b) Interview: Ogletree on Obama (Harvard Law Record 10.30.2008). c) Obama first made history at HLS (Harvard Law Bulletin November 2008). d) HLS Faculty react to Obama victory (Harvard Law School News). e) Michelle Obama's commitment to public service began at HLS (Harvard Law School News). f) Obama's quiet Harvard roots (Harvard Crimson 11.02.2008). g) BurtLaw's Harvard Law School (LawandEverythingElse.Com 03.07.2003). h) Barack Obama's peroration (Sometimes Left, Always Right at BurtonHanson.Com 02.12.2007). i) Norwegians are giddy over Obama victory (Norway Post 11.05.2008).

 Federal judge overturns conviction of GA magistrate judge. "[A] federal judge who presided over the corruption trial of a Georgia magistrate judge has overturned the jury's verdict convicting her of perjury and making false statements. U.S. District Judge Hugh Lawson ordered an acquittal of Linda C. Peterson on charges that she lied to a federal grand jury and to federal authorities investigating alleged corruption in southern Georgia's Alapaha Judicial Circuit...." More (AJC 11.05.2008). Comment. The good judge reportedly ruled the evidence presented by the feds was insufficient as a matter of law to sustain the convictions. We're happy to link to this report of his decision. The feds seem to believe they have a roving commission to clean up state government. With the federal government in such a mess, we've suggested that perhaps the feds ought to be devoting limited investigative resources to other matters, especially given that one of the basic premises of federalism is that states generally are capable of keeping their own houses in order. Further reading. See, my comments at Ex-judge is charged with mail fraud as judge (The Daily Judge 12.13.2006).

 Gail Chang Bohr wins election to open seat on district court in MN. Gail Chang Bohr has won a close race against Howard Orenstein for an open position on the district court in Ramsey County. More (St. Paul Pioneer-Press 11.05.2008). Comments. a) Gail ran a good race against a strong opponent. I knew Gail when she was a law clerk at SCOMN. She'll make a good judge. I have no idea what her views are on judicial elections in general. My view, however, is that her election is an exhibit in support of retaining the current system of judicial selection rather than adopting one of the proposals that would deprive MN voters of a role in judicial selection. These proposals would replace real elections, like this one, with fake retention elections. One of the many virtues of the current system as practiced in MN is that it has provided a safety valve of sorts, allowing a number of qualified people, who may or may not have been denied an appointment on the basis of ancestry or gender or sexual preference or some other irrelevant factor, to take their case to the people. This last March, in another context -- commenting on a 90-year-old Black probate judge who owes his judgeship to a) the Civil Rights Revolution, b) the Voting Rights Act, c) the registration of black voters in largely-black Greene County, and d) a system that allowed the voters to play a role in the selection of judges -- I wrote, in part:

Interestingly, it was the people [not the governor or some appointment commission] who selected the first, and so far only, black person to sit on MN's highest court. Some prominent judges pointed this out in a letter dated 03.28.2008 to the Minnesota Lawyer opposing the proposal to substitute Missouri's Plan, with its one-candidate "retention elections," for the populist Minnesota Way: "The current system allowed an African-American, Justice Alan Page, to win election to an open seat in the Supreme Court, the first person of color to serve on that court, and allowed Judge Susanne Sedgwick to integrate an all male bench in Hennepin County in 1974." Letter to the Editor: Judges: Retention elections will hurt Minnesota (Minnesota Lawyer 03.28.2008). See, also, Stephen C. Aldrich, Minnesota Judicial Elections: Better Than the 'Missouri Plan' (Bench & Bar Oct. 2002). As an aside, it should be noted that, like Judge Page, Judge Aldrich, who has a serious hearing impairment, was elected to the bench after trying but failing to get appointed via the then governor's committee-aided appointment process.

In case you didn't know it but as the news story reports, Gail "will become the first judge of Asian heritage in Ramsey County." Once again our candidates for judicial office have conducted themselves well and our voters, who are all above average, have proven that they are capable of choosing their own judges. b) The news story reports that some people raised questions about Judge-elect Bohr's age, pointing out that since she's 64 she "will not be able to serve out her six-year term before the judges' mandatory retirement age of 70." As readers of The Daily Judge know, I've publicly argued since 2000 that Minnesota ought to abandon its unwise, costly experiment in what in reality is invidious discrimination on the basis of age, whereby the best and most-experienced judges are forced to retire at the age when some of our greatest judges -- e.g., Holmes and Hand -- were just coming into their own. Not only is it bad policy, for multiple reasons (including, incidentally, that it tends to keep highly-qualified lawyers in their early 60's from being considered for judicial appointments), it's also "antidemocratic, depriving people of their right to elect judges of their choice." See, my 2000 Campaign Position Paper on Mandatory Retirement of Judges. Just this last March, Mark Cohen, who edits The Minnesota Lawyer, referred in his blog to Minnesota's policy of forced retirement at 70 as "an anachronism that itself ought to be retired." (MN Lawyer Blog 03.31.2008). I think it's just a matter of time before the public demands its repeal. Those who like to champion "reform" would better serve the public interest if they abandoned their effort to take away voters' role in judicial selection and to make Minnesota mimic Missouri, whose judiciary ain't half as good as ours, and if instead they directed their attention to retiring mandatory retirement. Incidentally, repeal would mean that Paul H. Anderson, who is one of the two best justices of SCOMN and who at 65 was just re-elected, would not be forced to retire before his new term expires. Further reading. SCOWIS' Chief leads the way -- herein of experienced judges, judicial elections and judicial independence (The Daily Judge 04.05.2008).

 Voters in Michigan unseat Chief Justice Taylor. "Diane Hathaway sprung a stunning upset Tuesday of Clifford Taylor, the conservative chief justice of the Michigan Supreme Court who was the target of a scathing advertising campaign from Democrats. Hathaway, a Wayne County Circuit Court judge nominated by the Democrats, is the first challenger to unseat an incumbent justice since 1984...." More (Detroit Free Press 11.05.2008). Background. Voters get a choice for chief of SCOMI (The Daily Judge 10.04.2008); More on Michigan's troubled supreme court (The Daily Judge 10.14.2008).

 Juror in Stevens trial who said dad died lied. "A juror who was dismissed from the trial of Sen. Ted Stevens (R-Alaska) after she told the judge that her father had died in California admitted in court yesterday that her excuse was a lie: She actually left town to attend a horse race. U.S. District Judge Emmet G. Sullivan declined to sanction the juror...and allowed her to return to work after a short hearing...." More (Washington Post 11.04.2008). Comment. The Post quotes her as saying she believed Stevens was guilty "like all the other politicians." The Constitution's presumption of innocence, of course, theoretically presumes "the high and mighty" are innocent just as much as it presumes ordinary Joe's are innocent. Her suggestion that she thinks all politicians are "guilty" makes one wonder if appropriate care was taken in jury selection. Do you smell "new trial" somewhere down the line?

 Quote-of-the-Day. "Poor Diane Levine. She has lost most of her arm, her livelihood, and now her whole story to the doctrine factory that is the Supreme Court. She told Tony Mauro this week, 'I thought this case had to do with me.' No ma'am. This case is so deep in the pre-emption weeds, the word guitar was never even whispered. On the one hand, draining cases of their heated emotional component is what courts do best. On the other hand, why do the court's conservatives turn so purple when they are trying to sound most dispassionate? And on the other hand, well, shouldn't the other hand matter just a little?" -- Dahlia Lithwick, Label Conscious -- The Supreme Court gets positively passionate about pre-emption (Slate 11.03.2008), her essay on the oral arguments in Wyeth v. Levine. Transcript of arguments (PDF). SCOTUSwiki preview summary of issues.

 Of rat-infested temporary courthouses and new courthouse construction delays. "Crews have been struggling to complete Santa Clara County's satellite courthouse in Morgan Hill for about four years and two months -- two years and two months too long...The courthouse is officially about $3 million over budget -- so far... Now, contractors are seeking an additional $17 million -- on top of the $50 million or so the unfinished two-story structure has already cost taxpayers...The first [satellite courthouse] the county built, in San Martin, was infested with mold and had to be abandoned in 1999, forcing prosecutors, probation officers and judges into cramped portables. Nearly 10 years later, they're still stuck in flat-roofed gray trailers, now plagued by rats and ants, torn carpets, leaking roofs and windows, and erratic air-conditioning and heating...." More (San Jose Mercury News 11.03.2008).

 Judicial candidate gets attacked by pit bull. "Democratic judicial candidate Ken Molberg was attacked and bitten multiple times by a pit bull Saturday while walking a southeastern Dallas neighborhood as part of his party's organized effort to turn out Democratic voters...." More (Dallas Morning News 11.03.2008).

 Federal district judge files brief criticizing prosecutors in pending appeal. "A previously sealed court filing from a federal judge in San Diego criticized prosecutors for inaccurately describing the details surrounding the secret guilty plea of a figure in the Randy 'Duke' Cunningham scandal. In a highly unusual move, U.S. District Judge Larry Burns sent a 15-page brief of his own to the 9th U.S. Circuit Court of Appeals, curtly noting that the court filings of prosecutors 'mischaracterizes substantial, relevant portions' of the case...." More (San Diego Union-Tribune 11.02.2008). Judge's brief (PDF). Comment. I wasn't aware judges could do this. I don't see anything necessarily wrong with it, provided the rules allow it and provided the judge's brief otherwise accords with all court rules regarding appeals, is served on all the parties, is part of the public file, etc. Hypothetical. Would it be appropriate for a supreme court justice to agree to a request by a member of an intermediate appellate court panel to meet privately to discuss the intermediate court judge's views on the case while a petition for further review or certiorari in the case is pending before the supreme court?

 'Supremes Court,' by 2-1 vote, upholds stopping in the name of luv. "After months of deliberation, the Supremes Court, the soulful judicial body that oversees federal matters of the heart, issued a historic decision in the case of Holland v. Baby, Baby, opting to uphold the practice of stopping in the name of love by a 2-1 vote...Justice Mary Wilson [wrote,] 'The language of the Constitution is unclear on the matter, but it is the court's belief that, had the framers known of your secluded nights, they would have done anything to prevent losing you forever. Including supporting a 28th amendment to force you to stop this infatuation. Ooo'... Chief Justice Diana Ross provided the sole dissenting opinion, saying that she could not endorse a blanket decision that did not take into consideration the varying degrees of love...." Supremes Court Upholds Stopping In The Name Of Love In 2-1 Decision (The Onion 10.31.2008). See, also, History of the Supremes Court (The Onion 10.31.2008). Note: Click on thumbnail image to view the high-resolution original of the pic of the Supremes Court and to read the article in its entirety. Earlier. a) Annals of judicial internet dating (includes links to many of our earlier postings about judicial romance, judicial dating, and judicial cyber-dating). b) Results of Google search showing links to many more of our relevant postings on judicial romance. c) Oo-ee, oo-ee baby, won't you join the judgie on a nude sea cruise? (The Daily Judge 10.31.2006).

 Do I sense a cause célèbre in the making? "A Paramus eighth-grader was sent home from school today and told to change out of his costume: They deemed Jesus Christ inappropriate. Alex Woinski 'We're a little stupified by this whole thing,' said the boy's mother, Kim Woinski. Jesus Christ was 'one of the greatest men that ever lived,' she added. 'If he went as Abe Lincoln would they say he couldn't do that?'" More (North Jersey News via Obscure Store and Reading Room 10.31.2008). Comments. a) Apparently it was the crown of thorns and the beard that did him in. In our experience, that'll do it every time. Why, just the other day, when it got down to freezing, I got stopped by police for wearing the fleece-lined crown of thorns I bought over the internet from a well-known outdoor-clothing company. b) Next time we recommend Alex go dressed as that great "reverent agnostic," Justice Holmes. c) BTW, Alex's parents might want to consult the attorney who represented the woman who got a $3.1 million judgment for defamation against Target Corp. after the store "targeted" her as a counterfeiter after she purchased items using a legitimate $100 bill that Target mistakenly concluded was counterfeit. More (Greenville Online via Obscure Store and Reading Room 10.28.2008).

 Do law students cheat even more than hoi polloi students at elite U? "They go to one of the world's most prestigious universities and pride themselves on their superior intellect but almost half of Cambridge students admit they are not immune from the temptation to cheat and submit essays they find on Google, a survey suggests. The results of an anonymous online poll of more than 1,000 students conducted by the student newspaper Varsity found that 49 per cent of undergraduates pass other people's work off as their own at some point during their university career...Law students were most prone to plagiarism with 62 per cent of those questioned admitting to breaking university rules...." More (UK Times 10.31.2008).

 Judge's secretary is indicted on drug charges. "The former secretary of a county judge has been indicted on felony and misdemeanor charges for her alleged involvement in a drug distribution ring. Olga Velez, 59, is charged with complicity to money laundering, complicity to trafficking in drugs and falsification. Velez, who officially retired Friday from her job as secretary to Lorain County Domestic Relations Judge Debra Boros, is free on bond. Boros placed Velez on leave in September after her Sheffield condominium was raided as part of a crackdown on the drug ring...." Ms. Velez worked for Boros when Boros was a prosecutor and continued as her personal secretary when Boros became a judge. More (Chronicle-Telegram 11.01.2008). Comment. At this point, we presume she's innocent.

 The opera caucus at SCOTUS goes bonkers over Leontyne Price. "Justice Antonin Scalia has a reputation as an intimidating jurist who poses withering questions during arguments before the Supreme Court. But on Friday afternoon, when the soprano Leontyne Price entered the West Conference Room at the Court to attend an honorary luncheon hosted by the National Endowment for the Arts, Justice Scalia, an avid opera fan, visibly melted...[Dana] Gioia invited the court's opera lovers -- Justice Scalia, Justice Ginsburg and Justice Anthony M. Kennedy -- to serve as hosts for the luncheon; all three readily accepted. As Justice Ginsburg said, in welcoming the guests, 'When Dana Gioia asked us, I took a cue from Nancy Reagan and just said, 'May we?'" More (NYT 11.01.2008).

 Judge who booted his wife and was booted from bench for preaching to women, dies. Back in 1987 Raymond Bartlett was booted from his position as family court judge "for preaching to women and telling them to be subservient to their husbands." Two years later he was found guilty of intentionally kicking his wife in her rear end when she wouldn't tell him who she was talking with on the telephone (he claimed his foot inadvertently made contact when he lifted it while reaching down to pick up a chair she'd pushed to the floor). The judge is dead. He was 84. More (Nova Scotia Chronicle Herald 11.01.2008). Comment. God knows how many good things he did in his life, but the news stories wind up focusing on this stuff and we don't help matters by linking to the obits. Así es la vida. But we also are happy to link to the formal announcement of his death made by his family. It reveals he served in a RCAF, that he leaves behind children, grandchildren, a grandchild, and siblings, and that "he will be sadly missed." Personally, I'd rather be missed by my kids and a couple dog pals who love me despite (and maybe partly because of) my faults than to be falsely mourned by ten thousand people who didn't know me. For what, after all, is fame? Here's how a fellow named Henry Watterson answered the question: "A mound of earth a little higher graded/ Perhaps upon a stone a chiselled name/ A dab of printer's ink soon blurred and faded/ And then oblivion -- that, that is Fame!" [From an earlier piece: "'A mound of earth a little higher....' -- some notes to myself for a secular sermon on 'doing good'" - an entry dated 02.19.2001 at BurtLaw's Secular Sermons for Lawyers and Judges (scroll down) at BurtLaw's Law and Everything Else.]

 Ex-Mayor Michael Henchard's will. From T. Hardy, The Mayor of Casterbridge (1886):

"Upon the head of his bed he pinned a piece of paper, with some writing upon it," continued Abel Whittle. "But not being a man o' letters, I can't read writing; so I don't know what it is. I can get it and show ye." They stood in silence while he ran into the cottage; returning in a moment with a crumpled scrap of paper. On it there was pencilled as follows:--


That Elizabeth-Jane Farfrae be not told of my death, or made to grieve on account of me.
& that I be not bury'd in consecrated ground.
& that no sexton be asked to toll the bell.
& that nobody is wished to see my dead body.
& that no murners walk behind me at my funeral.
& that no flours be planted on my grave,
& that no man remember me.
To this I put my name.

 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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