The Daily Judge
© 2006 Burton Randall Hanson
       Archives - 03.11.2006 - 03.22.2006
"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.

    Minnesota's he-said/she-said controversy: Is somebody necessarily lying? Craig Westover, writing today (03.22.2006) for the Pioneer-Press, opines, with reference to MN's "Johnsongate": "Somebody is lying. There simply is no other, nicer way to say it. Either [Sen.] Johnson is lying about having a conversation with a member of the court, and by doing so compromising the personal integrity of state Supreme Court justices and the judicial system, or one or more of the justices is lying, in which case there has been a significant breach of judicial ethics that compromises the legislative process." More. Meanwhile, Republican Gov. Pawlenty, whose wife is a district court judge, says people ought to forgive Johnson, a Democrat, for his "big mistake" and the parties ought to move on to other issues. More. Comments. Two points. a) Sometimes people "forgive" not as a simple act of forgiveness but as part of an indirect way of placing blame and of resolving a disputed issue to one's own benefit. Perhaps Pawlenty is not being magnanimous but pragmatic: perhaps he wants to avoid further inquiry into who, if anyone, said what, if anything, and perhaps he feels the Republicans have gotten as much mileage out of the issue as possible and that prolongation of the controversy might backfire. b) In making his argument that someone is lying, Westover is echoing the Republican line. Is it necessarily so that someone is lying? Legislative leaders talk to many people in the course of a day, thousands in the course of a year. Speaking hypothetically and rhetorically, one may ask: Might someone other than  former Chief Justice Blatz or a current member of the court but someone closely connected with the justices have said to Sen. Johnson that he or she had spoken to or knew the thinking of some justices and there's no way the court would touch the same-sex marriage issue? And might the senator, who is a minister and a general besides being a respected legislator, have remembered the remark as having come from the one unidentified justice to whom he now refers? Or, to take a different angle, might Johnson, who presumably is a gentleman, have seriously regretted betraying one or more actual confidences in his taped statement and might his subsequent partial retraction and mea culpa have been the gallant act of a gentleman? On the other hand, might Chief Justice Anderson, a man who as chief is widely respected, be telling the truth as he believes it but still be mistaken? His version, after all, is based on self-serving hearsay statements from seven other people. We should presume the truthfulness of those seven other people, just as we presume the innocence of those who are charged with wrongdoing, but it is not beyond the realm of possibility that one of them at a minimum has a bad memory or that he/she said something that Johnson misinterpreted. Not every dispute among people of presumed honor and integrity can be resolved by simplistic either/or thinking. In other words, in my opinion, perhaps no one is "lying." Perhaps some people of honor, all acting in good faith, just have some different versions of reality and we won't ever know "the truth" with any certainty. Earlier. Here are links to our earlier postings on this controversy, in reverse chronological order: The chief tries again -- did he do any better? (03.21.2006 posting) - The latest on what, if anything, MN's Supremes told a senator (03.18.2006 posting) -  What, if anything, did one or two or three supreme court justices say? (03.17.2006 posting). Updates. "Saying they doubted they could force state Supreme Court justices to testify, members of a Senate ethics panel Friday agreed to dismiss a complaint against Majority Leader Dean Johnson, averting an inquiry that would have pitted the credibility of the court against that of the senator...."Details (Minneapolis Star-Tribune 03.25.2006). On Monday Johnson apologized to his colleagues for making an "inaccurate" statement to ministers and reiterated he received no "commitments" from any supreme court judges on how court would decide same-sex marriage case. But we also have learned that "Johnson's lawyer...Ellen Sampson said if the special subcommittee on ethical conduct pressed on, Johnson was prepared to call witnesses who would testify to discussions he had with justices. 'If the committee tells us to name them, we will name them and we will call the witnesses who were in those meetings and heard those conversations,' Sampson said during a closed portion of a hearing held by the panel...."More (Minneapolis Star-Tribune 03.28.2006). To the same effect, see, St. Paul Pioneer-Press (03.28.2006) ("[Johnson's apology for making an 'inaccurate' statement at the ministers' meeting] does not clear up who is telling the truth about conversations Johnson has claimed to have had with Supreme Court justices about the 1997 law. The senator maintains that he had some conversations about the subject, and last Friday his lawyer said several of those conversations had witnesses...."). Today we learn that two senators on the ethics panel are saying Johnson's claim he has witnesses is plausible: "GOP Sen. Tom Neuville of Northfield and DFL Sen. Wes Skoglund of Minneapolis said they couldn't dismiss the possibility that conversations [with justices] took place...'I think it is possible he had a meeting and the topic came up,' said Sen. Thomas Neuville, R-Northfield. 'If push had come to shove, I think (Johnson) would have had witnesses. I didn't sense he was gaming or bluffing.'" More (Grand Forks Herald 03.29.2006). "Two attorneys -- a Minnesota House member [Rep. Tom Emmer] and a crusader against state Supreme Court rules [Greg Wersal] -- filed separate ethics complaints Friday...with the Board on Judicial Standards and the Lawyers Board of Professional Responsibility, question[ing] whether [one or more] justices violated the [court's rules] by [allegedly] talking to Johnson about the 1997 state law that bans gay marriage...." More (St. Paul Pioneer-Press 04.01.2006). Senate committee rejects proposed constitutional amendment banning same-sex marriage (KARE-11 04.04.2006).

    Judges' chauffeurs' perks. "Chauffeurs for Federal Court justices were accustomed to certain comforts back when they were housed in the Supreme Court of Canada. Private bathrooms, kitchen facilities, lockers, phone lines, a car wash. So when they moved a few blocks to a downtown building three years ago, the Federal Court made sure they got the same kind of digs...." More (Canada.Com 03.22.2006). Comment. Instead of focusing on the chauffeurs' perks, maybe taxpayers ought to focus on the fact that the judges have chauffeurs. Do judges really need chauffeurs?

    Annals of 'judicial outreach.' "A local judge who believes unruly kids can become unruly adults has a unique way of teaching civility: She takes them to high tea. The tea session feels like the 1950s -- the hats, the gloves, the soft-spoken youth. Judge Mary Terrell believes high tea can be the antidote to the outlandish behavior that she said is beginning to take root in American culture...." More (NBC4.Com 03.22.2006). Comment. As long as it's on the judge's own time and at her own expense, I guess I have no problem with it, but....

    Judge, under investigation, resigns. "A judge who was demoted after becoming the subject of a police investigation has resigned. The resignation of David T. Fritts this month leaves the 15th Judicial Circuit short a judge and effectively ends an investigation by the state’s judicial inquiry board...No criminal charges have been filed as of Tuesday. Fritts, 57, was chief judge for the 15th Judicial Circuit until early January. He resigned that post after meeting with the other judges from the circuit...." More (Rockford Register Star - Illinois 03.22.2006).

    Judge's chambers burgled. "The chambers of the judge, who nullified the impeachment of the former Governor of Oyo State, Senator Rasidi Ladoja, has been burgled by unknown persons. Justice M.O Bolaji-Yusuf’s chambers was said to have been burgled on Sunday night and her laptop computer, some vital files, were carted away by the burglars...." More (Sun News - Nigeria 03.22.2006).

    The chief tries again -- did he do any better? For the second time, Minnesota's new chief justice, Russell Anderson, has tried to end the controversy raised by the public release of a secretly-made audio-recording of a statement made by Sen. Dean Johnson about assurances he said he'd received from justices of our supreme court that the court wouldn't touch the issue of same-sex marriage, which is barred by state statute. Specifically, the chief said: "[N]o member of this court or my predecessor, Kathleen Blatz, ever made a commitment to Senator Johnson about this matter or any other likely to come before us. Contrary to Senator Johnson’s original assertion, and any speculation by commentators since then, there have been no discussions by former Chief Justice Kathleen Blatz or any current member of the Supreme Court with Senator Johnson about the Defense of Marriage Act, let alone any assurances given in regard to that law." Full text (KSTP 03.20.2006). Comments. a) This statement apparently was released in connection with a conference call the new chief, who is on a "family vacation," conducted with reporters. The idea of using the conference call format proved to be a bad one, in my opinion. I heard a clip from it on a couple local TV news shows. The sound quality is poor -- it sounds as if the chief was talking from an echo chamber. A friend of mine laughed when he heard it, not because of the content but because it made the chief sound so bad. b) Despite the chief's saying that Sen. Johnson has apologized for the statement that was taped, there remains still a gap between what Sen. Johnson said in his last statement on the matter (he said he talked with one justice, not three) and the chief's statement that no one ever discussed the matter with Johnson. As today's Pioneer-Press puts it, "The justice's comments keep the controversy alive because they directly contradict every version of Johnson's retelling of his interaction with members of the Supreme Court" -- i.e., the controversy remains alive because of this "gap" to which I referred. The average citizen might wonder, "Who do I believe, Sen. Johnson, who is a minister, or Chief Justice Anderson, a man highly respected by definition? It's a classic he-said/she-said issue." The Pioneer-Press quotes state Republican Chairman Ron Carey as saying at a Capitol news conference that "Somebody is lying." The viewpoint of the Republicans, who are trying to make political hay of the matter, is that Johnson is lying. The Democrats are sticking by Johnson as leader and saying that "the continued differences between what Johnson and Anderson have said about discussions the senator had or didn't have with Supreme Court justices 'are for them to work out.'" c) Will this end the matter? I'm not sure it will end it -- or should end it. Minnesota reporters are awfully deferential toward supreme court justices, which suggests they might not pursue the matter. But if I were a reporter I would not be satisfied with the chief's use of the conference-call format instead of a face-to-face press conference, nor would I be satisfied with the chief's speaking for the other justices. The latter is a little like a mother, in response to being told that her kids have done something wrong, saying she's spoken to them and they all said no, they have not. In other words, a good reporter would want to talk face-to-face with the individual justices and, perhaps, with other people associated with the court who sometimes or often are in contact with legislators on court budgetary matters, etc. In any event, it's not just up to the reporters. Ultimately, it's all up to the people senators and justices alike serve, i.e., all of us. This is a great public relations crisis for the court as an institution and for each of the justices. If I were a justice and I had not talked with legislators, I'd have doubts that the chief and the court's p.r. people have handled the matter effectively. d) In his statement, the chief justice also said, "This incident has served as a timely example of the dangers posed by a politicized judiciary." I would put the matter differently. I would say that it arguably serves as an example of the risks of the court's so-called "community outreach" efforts of recent years. I go into this development in some detail in my formal essay titled BurtLaw on Judicial Independence and Accountability. When I joined the court as a trusted adviser in 1970, long before all the judicial outreach efforts had begun, the chief justice was the curmudgeonly, somewhat forbidding Oscar R. Knutson, possibly the greatest chief justice in the court's history. No one would have believed it possible that Chief Justice Knutson or any of the associate justices on that court would have talked outside the court with anyone about any case, past, present or future -- or about much of anything else, for that matter. That some people believe it at least possible these days may have something to do with that trendy development called "judicial outreach." Most don't agree with me on this, but it's my firmly-held opinion. Earlier. Here are links to our two earlier postings on this controversy, in reverse chronological order: The latest on what, if anything, MN's Supremes told a senator (03.18.2006 posting) -  What, if anything, did one or two or three supreme court justices say? (03.17.2006 posting).

    Ailing supreme court justice keeps in touch via webcasts of oral arguments. "When the Supreme Judicial Court began broadcasting oral arguments on the Internet last May, proponents predicted that the webcasts would be must-see viewing for appellate lawyers, law students, and court buffs with a taste for something besides the latest sensational murder trial. It turns out that the webcasts have also proved vital to helping an ailing justice continue her duties. Justice Martha B. Sosman, who was diagnosed with breast cancer in mid-2005, has relied on the webcasts to view oral arguments she has missed at the John Adams Courthouse, said Joan Kenney, a spokeswoman for the court...." More (Boston Globe 03.21.2006). Here's a link to an archive of the webcasts. Comment. This is real, rather than faux, judicial openness, the kind I approve.

    Plot to bomb courthouse. "A Spanish judge has indicted 33 suspected Islamic extremists in a failed plot to attack the National Court in Madrid, which tries terrorism cases, with a truck bomb...The plot aimed to pack a truck with 500 kilograms (1,100 pounds) of explosives and ram it into the National Court building, where nearly a thousand people work daily, including judges, prosecutors, lawyers and police officers, according to the 23-page indictment...." More (CNN International 03.21.2006).

    Ex-judge charged with sexually assaulting autistic man. "A former municipal judge in Dunn County [Wisconsin] is charged with sexually assaulting an autistic man. A criminal complaint says former Colfax judge Eugene Dunagan fondled the man and performed a sex act at Dunagan's home last year...." More (WBAY 03.21.2006).

    Judge apologizes to man wrongly held in prison for 18 years. "A man imprisoned 18 years for a Dallas-area rape he says he did not commit has been freed based on DNA-testing technology, a report said. Gregory Wallis, 47, briefly shed tears Monday when District Judge John Creuzot granted him immediate freedom. 'I don't know how to apologize,' the judge said. 'I don't know where to start, but I'll start with me and I'm sorry.'" More (UPI 03.21.2006).

    Gorgeous, feisty, blond judge strides to the dais, her robes billowing.... "[Judge] Cate [Fante] strode to the dais, her robes billowing theatrically, making her feel like an actress playing a role. Someday she'd feel like she belonged in this costume, but today wasn't the day... 'All rise!' the deputy boomed, his voice echoing in the crowded courtroom." - From Lisa Scottoline, Dirty Blonde (2006), reviewed in New judge finds bench unexpectedly thrilling (Bergen.Com 03.20.2006).

    Judges fare better than legislators in poll. "Judges fared much better and lawyers somewhat better this year in Leger Marketing's annual survey of the most trusted occupations, while politicians lost even more ground in public confidence. Seventy-eight per cent of respondents said they trusted judges, up six percentage points from last year to put the judiciary eighth of the 22 occupations included in the poll. Politicians were down two percentage points, dead last on the list yet again with the trust of only 14 per cent of Canadians surveyed by the Montreal-based polling firm in its annual 'profession barometer.'" More (Globe and Mail 03.20.2006). Comment. If the story is accurate, I infer that the results may have been affected by referring to members of Parliament, etc., as "politicians" rather than, say, "legislators" -- or, to put it differently, by not referring to judges, say, as "judicial politicians." The poll suggests that "lawyers" have the trust of 48 per cent or about half of respondents, just a point behind "journalists" but a whopping 24 points behind "bankers." Frankly, I'm surprised that many trust "lawyers." The most-trusted? "Firefighters," "nurses," "farmers," "doctors," and "teachers." Next to politicians the least trusted were "car salespeople." From my dealings with car salespeople, I believe they ought to be at the bottom of the list along with "marketers," "ad people," and other assorted sales types. It is almost impossible these days to find a headline offer involving a consumer product that isn't qualified in multiple ways by the fine (often unreadable) print. Sometimes I can't help thinking we have become a nation of scam artists, with nearly everyone in the marketplace out to try to "cash in" on everyone else.

    Retired judge says Australia is heading toward 'autocracy.' "Australia was among the Western powers to have financially backed terrorist regimes, and its tough new sedition laws leant towards autocracy, former Federal Court judge Marcus Einfeld said last night...The anti-terrorism bill -- in particular its anti-sedition laws -- was, 'a Pandora's box of possible abuses if used incorrectly.' He added: 'This is the hallmark of a society leaning towards an autocratic framework, one in which nationalism, homogeneity and a warped and misinformed concept of 'the other' are thrown together into a heady and volatile cocktail.'" More (The Age 03.20.2006).

    The cost of a judge's running court past 5:00 p.m. "County Judge Judith Goldman ran her courtroom past 5 p.m. for only eight hours in December. The same month, bailiffs attributed more than 133 hours of their overtime to her courtroom. The sheriff's office has blamed Goldman for a quarter of the $215,000 paid by taxpayers for bailiffs' overtime over the past two years...The way they attribute overtime to judges is inaccurate, [Goldman] said, and the reason they're doing it is to try to convince the county that they need more than the 49 bailiffs they have. 'I think they are frustrated and want more staff,' she said. When a judge runs court late, as many as 10 bailiffs have to stay late, too, Sarasota County Sheriff's Office officials said, protecting the judge, guarding prisoners and securing the front door...." More (Sarasota Herald-Tribune 03.20.2006). Comment. I'm not sure why but as I was reading the part about 10 bailiffs having to stay late when a judge runs court late, the old "W.P.A. jokes" that I heard growing up in small-town Minnesota in the 1950's came to mind. People of my parents' generation, who came of age during the Great Depression, told these jokes. Despite the jokes, which poked fun at W.P.A. workers getting paid for leaning on their shovels, etc., I developed a very favorable view of the W.P.A. -- everywhere I went about town I saw evidence of the W.P.A.'s work on the town's infrastructure, in the letters "W.P.A." stamped on the cornerstone of the town swimming pool, on each slab of the sidewalks on which I walked, etc., etc. Curiously, if one does a Google search for "W.P.A. jokes," one turns up very little.

    The courthouse dog -- or, what are dogs up to? "[Delaware County Juvenile Court Judge Kenneth Spicer] has come up with a way to help ease the concerns and tension for upset youngsters who come into his chambers to talk about grown-up things such as custody battles or child abuse. The judge's big yellow Labrador retriever[, Buckeye,] helps make the courthouse and the judge a little less intimidating...." More (Cleveland Plain-Dealer 03.19.2006). Comments. Wallace Stevens, that rare combination of great poet and very good lawyer, wrote a terrific poem titled 13 Ways of Looking at a Blackbird. There presumably are at least 13 ways of looking at Judge Spicer's having Buckeye in court with him. One is that maybe he always wanted to take her along to court but not only couldn't figure out how to justify it but wasn't sure it was allowed. Then, perhaps, he had one of those eureka moments brilliant judges have: "I'll simply call her a "courthouse comfort dog for kiddies" and, voilà! -- I can have her with me all day!" But this is pure supposition on my part. Indeed, from the outside looking in, one is free to wildly impose any number of motivations on the good judge -- or, for that matter, on the dog. Knowing that some dog-behavior theorists believe dogs got where they are by very cleverly manipulating human beings, a suspicious slippery-slopeist might ask, "Is it possible Buckeye and dogs like her all across the country are getting their paws in the courthouse door as part of some greater plan to advance their agenda of extending constitutional rights to dogs?" Using this thought as a taking-off point, might not our suspicious slippery-slopeist speculate that if gays are allowed to marry each other, that will not only lead to legalizing ploygamy, as some opponents of same-sex marriage have argued, but will lead to dog marriages -- and then, God forbid, inter-marriage between dogs and humans -- and then, oh perish the thought, dog-pack marriages!?#* Read on....

Is it right that dogs can run naked on the beach but women can't? Some law schools, including Harvard Law School, have started to offer courses in animal rights law. Some so-called "animal-rights lawyers" (another new specialty) argue that, at a minimum, chimps and other primates are "persons" entitled to equal protection of the law, due process, etc. One question is: How make the courts recognize this right? One approach would be to amend the federal constitution. Animal-rights lawyers are more likely to try persuade the U.S. Supreme Court to interpret the federal constitution (perhaps by a 5-4 vote) to include chimps, etc., as "persons." Failing that, animal-rights lawyers presumably will try get individual state supreme courts to interpret individual state constitutions to "cover" chimps, etc. It has been argued, at least rhetorically, by some folks that most citizens are "chimps." If they are, does it follow, as the night follows the day, that chimps therefore are entitled to citizenship? H.L. Mencken deflated this argument somewhat: he opined that while most citizens aren't chimps, many or most politicians are. If most politicians are chimps, then at least the law might recognize that chimps may run for public office, thereby legitimizing existing practice. Animal rights lawyers advocating chimp rights, many of whom are "pro-choice" on the abortion rights issue, are keeping their fingers crossed that abortion-rights advocates won't point out the irony of arguing that while a human fetus is not a "person," a chimp is one. I'm more concerned about dogs than chimps. I believe that if any animal gets rights, it should be the domesticated dog, especially the Australian shepherd. But let's not rush into this. I'm not sure I want Mathilda threatening me with a lawsuit if I fail to take her on her daily walk. And, speaking for her, I'm not sure she will want the responsibilities and expectations that go with citizenship. I doubt she'd want to be told to wear a bathing suit at the beach. Then again, if dogs can run around in public naked, as we know they can, is it fair that female homo sapiens can't?

More at BurtLaw's Law and Everything Else Collector's Edition Swimsuit Issue. (Note: We believe this just-referenced special edition, first published in February 2003, was the first swimsuit issue in the history of weblogging or blogging, certainly the first in the history of law blogging or blawging. Indeed, it may have been the first such issue of any legal publication in the history of Anglo-American law, nay, in the history of law! Although published in 2003, it continues to be one of the most-visited pages on any of our three weblogs. Needless to say, we're mighty proud of ourselves over this great, mind-boggling-blogging accomplishment.)

    Egyptian judges protest lack of independence. "Nearly 1,000 Egyptian judges held a half-hour silent protest Friday to demonstrate for full judicial independence and against the government's order to interrogate of six of their colleagues who criticized recent elections. The justices, wearing the red and green sashes of their profession, gathered outside their professional association, the Judges' Club, in downtown Cairo ahead of an extraordinary general assembly to discuss their grievances...." More (Houston Chronicle 03.18.2006).

    Saved by St. Patrick? "After building in intensity all week, the push by Ohio lawmakers to remove a Franklin County judge for sentencing a sex offender to probation abruptly imploded yesterday. Common Pleas Judge John A. Connor, who marched in Columbus’ St. Patrick’s Day parade as Irishman of the Year, was spared less by the luck of the Irish than by a growing backlash against the Republican-led effort to force him from office. House Speaker Jon A. Husted backed away from an effort to oust Connor, which requires backing by two-thirds of the House and Senate. A lack of Democratic support was blamed for dooming the effort...." More (Columbus Dispatch 03.18.2006). Earlier. We were harshly critical of the Republicans' efforts; see our comments at Gov. Taft seeks removal of judge for approving a plea deal by prosecutor.

    A 'culture of secrecy.' "Cuyahoga County Common Pleas Judge Nancy Russo knew the court had a problem with open records when a court official several years ago refused her access to information about foreclosure cases that had once been assigned to her. 'He told me it was none of my business,' Russo said in an interview this week. 'So it just doesn't happen to the public with open records.'...Ending that sort of government secrecy is one of the aims of Sunshine Week, which is devoted to raising awareness of the need for easy access to public records...." More (Cleveland Plain Dealer 03.18.2006). Comment. Judge Russo is quoted as referring to a "culture of secrecy" in the court. In the words of the song made popular in the 1950's by the Cowboy Church Sunday School, I say to judges and courts everywhere, "Open up your heart/ And let the sun shine in."

    The latest on what, if anything, MN's Supremes told a senator. Speaking of the need for sunshine on a potentially devastating matter concerning an institution I love and to which I devoted 28 years of my life, the West Central Tribune, a daily newspaper in Willmar, Sen. Dean Johnson's hometown, reports today that "Supreme Court officials have refused access to the justices for interviews on the situation." The "situation," of course, is the flap raised by the public release of a secret recording made of Sen. Johnson's remarks to ministers about assurances he said he'd received from justices of our court that the court wouldn't touch the issue of same-sex marriage, which is barred by state statute. For my detailed piece on this, see What, if anything, did one or two or three supreme court justices say? Needless to say, there are no "court officials" who have the authority to refuse access to any individual justice for an interview. Each justice is a constitutional officer, independent of the others on a matter like this. Perhaps the Tribune has it wrong. Or perhaps some court spokespeople are in effect saying that all the justices have agreed with each other not to speak to the press. In any event, we stand by our statement that an investigation into precisely who said precisely what is imperative and that a failure to conduct a thorough and open one may seriously hurt the court's credibility as an institution and unfairly injure individual justices who may have done nothing wrong. As an example of the latter possibility, if the public believes Sen. Johnson's recorded remark (and disbelieves his later claim that he "embellished" the truth) -- that is, if the public believes that an "Anderson," i.e., one of "the three Andersons" on the court, in fact told Johnson that the court wasn't going to overturn the ban on same-sex marriages, but the public doesn't know which one told him that, then the public, which paints with a broad brush, may well confuse an "innocent" Anderson with a "culpable" one. As a man of honor, if I were one of the three Andersons (not to be confused with The Three Tenors) and I in fact had talked with Sen. Johnson, I would feel obliged to publicly 'fess up, so that the other two wouldn't be harmed by my conduct, however innocent.

    Judge publicly admonished for 'inappropriate' relationship with employee. "A Sedgwick County district judge received a public admonishment Friday for having inappropriate personal relations with a courthouse employee.
The state's Commission on Judicial Qualifications...found that [Judge Warren] Wilbert, 53, last summer 'pursued a personal relationship with a subordinate employee beyond the appropriate boundaries' of professional conduct...." More (Wichita Eagle 03.18.2006). Comment. We know nothing about the facts of this case. But we note that there are some who take the position that it is "too easy for women to file false claims against men in the public eye." See, "Women suing men" at BurtLaw's Law and Women. See, also, "Crying Wolf" (and the linked-to article of the same name by Christie Blatchford) at BurtLaw's Crime and Punishment. For a suggestion as to how a judge who fears being falsely accused might protect himself or herself, see Annals of law clerk-judge relations. For a refreshingly different position on this hot-button topic, see, Lisa Zeidner, Seeking Carnal Knowledge - Ban all amorous intimacy between professors and students? - There goes one of the higher forms of education (LisaZeidner.Com, reprinted from GQ November 1997). All we can say is, what's an ordinary, romantically-deprived loving judge who'd like to find a mate supposed to do? Bay at the moon? Date only other judges (he can't date attorneys without risking trouble)? Use Match.Com (that's risky -- see, Annals of judicial cyber-dating - part I & part II)? Our view: It runs against human nature to bar on-the-job romantic relationships and it is elitist to say that a judge may not "date down" or "marry down." Moreover, why do we assume that all relationships of judges with "subordinate" employees are coercive rather than voluntary? To paraphrase Justice Holmes, even a dog can tell the difference between being kicked and being tripped over -- or the difference, say, between being loved and being used. Sometimes, it seems to me, we expect judges to be other than human. What kind of judges does such an expectation produce?

    What, if anything, did one or two or three supreme court justices say? As elsewhere, so-called "religious" right-wing Republicans in Minnesota want the legislature to place a proposed constitutional amendment banning same-sex marriage on the general election ballot. Now our state supreme court finds itself involved in an indirect but potentially serious way. To understand its involvement, a bit of context is in order:

In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of federal question, 409 U.S. 810 (1972), reproduced here, Justice C. Donald Peterson, speaking for a unanimous court, held that 1) the Minnesota legislature, in using the term "marriage" in the statute governing marriage, undoubtedly used the term in its commonly-understood meaning, as "the state of union between persons of the opposite sex," and 2) the statute, as interpreted, "does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution."

Disclosure: I was Justice Peterson's law clerk at the time. Subsequent to Baker, in 1997 I think, the legislature amended the statute to reflect and show its approval of the result in Baker by expressly prohibiting marriage "between persons of the same sex," Minn. St. 517.03, subd. 1(4). There was no need to do so, but the legislature did so.

Not satisfied with that, opponents of same-sex marriage, for various reasons (you don't need a great imagination to guess them), want to put the prohibition in the state constitution. Some of the supporters of the proposed amendment, which would require approval in the general election, argue that absent that, there's nothing to prevent the Minnesota Supreme Court from abandoning Baker and holding that the statutory prohibition violates the state constitution. Dean Johnson, Minnesota's state senate majority leader, a Republican-turned-DFLer, who also is a Lutheran pastor, doesn't want the proposal to amend the state constitution on the ballot. One of his arguments has been that there's no likelihood that the state supreme court will declare the state statute unconstitutional. Which brings us to the matter at hand:

In January he spoke to members of the New London-Spicer Ministerial Association. Brent Waldemarsen, an area minister who is not a member of the association, asked to attend, then bought a digital recorder and, without anyone's authorizing it, taped Johnson's remarks, which he then made public. According to the 03.17.2006 St. Paul Pioneer-Press:

On the recording, Johnson can be heard saying he had spoken [to] three Supreme Court [justices] about the issue, including former Chief Justice Kathleen Blatz. "I have had a number of visits with them about our law. All of them, every one of them, including the lady who just stepped down, Kathleen Blatz, was my seatmate (in the Minnesota House) for four years. She was the chief justice. You know what her response was? 'Dean, we all stand for election too, every six years.' She said 'We're not going to touch it.' That's what she said to me." He also said that he had talked with two of the three justices named Anderson and that they had told him, "Dean, we're not going to do it."

Blatz reportedly has denied making such an assurance. And Johnson has issued a clarification saying he had talked with just one of the justices: "'I embellished it to say the judiciary doesn't seem too interested in overturning this...I suppose I was becoming frustrated. I made a mistake.'" More (St. Paul Pioneer-Press 03.17.2006). Comments. According to the Pioneer-Press, "Chief Justice Russell Anderson [one of the "three justices named Anderson"] issued a statement Thursday, 03.16.2006, saying: 'I take any suggestion of judicial impropriety very seriously. I have spoken with every member of my court and my predecessor and I can say with confidence that no member of the Supreme Court has made any commitment to Sen. Johnson on this matter' [Emphasis supplied by BRH]. Asked if that meant no justice had discussed the marriage issue with Johnson, court spokesman John Kostouros said 'We'll let the statement stand on its own.'" Hmm. Pretty artfully (Clinton-esquely?) worded: no "commitment" to Sen. Johnson on the matter. Not the same as saying no justice had made any "comment" to the senator. Well, it'll be interesting to see how this plays out. I have but three specific comments: a) I support same-sex marriage (if I were in the legislature, I would vote to authorize it) and I personally hope the proposed amendment is kept off the ballot. See, my detailed 2004 position paper titled Marriage and the Law, which I personally wrote and posted on my campaign (now political opinion) website in my failed anti-war Republican primary campaign against Minnesota's Third District Congressman, Jim Ramstad. b) Sen. Johnson shouldn't have said what he said to his fellow pastors. He could have made the point without bringing the justices, or anything they said to him, into the discussion. After all, it doesn't take a genius to make the point he wanted to make -- I made it as well in my 2004 essay:

Nor is there any significant likelihood that our state supreme court will overturn Baker [or hold the express statutory prohibition unconstitutional]. Unlike the members of the Massachusetts Supreme Court, which recently issued the controversial ruling holding in Goodridge v. Department of Public Health that barring same-sex marriage violates the Massachusetts constitution, the members of our state supreme court, although typically appointed by the governor in the first instance, must run for election and potentially face opposition every six years if they wish to continue serving on the court. That they ultimately owe their offices to the electorate makes it extremely unlikely that they will overrule or distinguish Baker and hold that the statutory ban on same-sex marriage violates the Minnesota constitution. Like their predecessors who served on the court in 1971, they are likely to conclude that as a matter of Minnesota law the matter is one for the political process.

c) While I wouldn't want to see any justice's career ended or the court hurt by anything that would be revealed by an investigation, I believe that Chief Justice Anderson's statement is inadequate and that an investigation into precisely who said precisely what is imperative. I believe the judicial conduct folks, who are supposed to be independent of the court in matters like this, need to subpoena each current justice, as well as former Chief Justice Blatz, and question each one individually, under oath, and on the public record about his or her knowledge of the making of any extra-judicial statements by any of them to Sen. Johnson or any other legislator. My guess is that the court will be hurt more by no investigation than it will be by the investigation I propose. In any event, an investigation is imperative and a failure to conduct a thorough and open one may seriously hurt the court's credibility as an institution and unfairly injure individual justices who may have done nothing wrong.

    Gov. Taft seeks removal of judge for approving a plea deal by prosecutor. "Three state leaders Wednesday sought the removal of a judge who ordered probation instead of jail time for a man who admitted sexually assaulting two boys. Gov. Bob Taft, House Speaker Jon Husted and Attorney General Jim Petro, all Republicans, called for the ouster of Franklin County Common Pleas Judge John Connor, a Democrat. The defendant, Andrew Selva, had been charged with 20 counts of rape, but prosecutors found errors in the indictment and later reached a plea agreement with his lawyers. Connor approved the deal...." More (Boston Globe 03.16.2006). Comment. This is what's known as "playing to the crowd." The crowd appears to have been stirred up by one of FOX News' resident rabble-rousers, Bill O'Reilly, who has been yammering about Judge Connor for several days. I'm adding Gov. Taft, whose illustrious ancestor William Howard Taft was President and later Chief Justice of the United States, to my increasingly-long list of cheap politicians and also to my other increasingly-long list of gutless politicians (there'a lot of overlap, although Democrats, who are in reactive mode these days, seemingly unable to stand for much of anything, appear more on the second list than on the first). Back during Sen. Joe McCarthy's reign of terror, it was The Press that cowered in fear, until Edward R. Murrow took McCarthy on. Today the roles are reversed: the Senators are afraid of the rabble-rousers of the popular so-called press -- and of their own shadow. Here's an old poem I learned in my youth by Josiah Gilbert Holland, a/k/a Timothy Titcomb (1819-1881); although I'm generally not fond of didactic poetry, it seems apropos:

God, give us men! A time like this demands
Strong minds, great hearts, true faith and ready hands;
Men whom the lust of office does not kill;
Men whom the spoils of office can not buy;
Men who possess opinions and a will;
Men who have honor; men who will not lie;
Men who can stand before a demagogue
And damn his treacherous flatteries without winking!
Tall men, sun-crowned, who live above the fog
In public duty, and in private thinking;
For while the rabble, with their thumb-worn creeds,
Their large professions and their little deeds,
Mingle in selfish strife, lo! Freedom weeps,
Wrong rules the land and waiting Justice sleeps.

Cf, Rudyard Kipling, If ("If you can keep your head when all about you/ Are losing'll be a Man...."). While there appears to be a shortage of real men these days, at least there's Justice O'Connor. See, O'Connor takes on right-wing Republican extremists. Update. GOP puts judge's ouster on fast track (Columbus Dispatch 03.17.2006). Comment. We'll see if anyone has the guts to stand up to the ones trying to get political mileage out of this.

    Ought a judge be removed because of his bad handwriting? Judge Marcus D. Gordon of Mississippi's Eighth Circuit Court filed an order last month saying it had come to his attention that some attorneys were filing pleadings and motions "with signatures that cannot be determined" in violation of R. 11, Mississippi Rules of Court. He "therefore" ordered the clerks of court in four counties under his jurisdiction to refuse to accept any pleadings or motions that do not bear legible signatures. The Smoking Gun, which has reproduced a copy of the order on its website, says: "We defy you to make out the signature of the judge who issued the handwriting order. Sure, some online searching may turn the guy's name up, but to TSG's naked eye, it seems the jurist is named 'Micg Gl.' Or perhaps 'Smccg Ge.'" More (The Smoking Gun 03.14.2006). Comments. a) We believe the clerk, Patti Duncan Lee, properly accepted the order and filed it, despite the judge's failure to sign his name legibly. Technically, the order did not become effective against anyone, including the judge, until it actually was filed. b) We believe, as a safeguard, the document preparer ought to type the name of the signer under the signature line  -- e.g., the order ought to have included these words below the line: "Marcus D. Gordon, Circuit Judge." c) While it would offend Justice Scalia, see infra, it wouldn't bother us if some judge issued an order giving himself a Cardozian "roving commission" to direct all elementary schools everywhere to reinstute the teaching of the old Palmer Method of teaching good penmanship. People used to praise my late mother's perfect penmanship, but most of members of her age cohort had good penmanship -- hers, in being perfect, was just a little bit better than average. Nowadays many kids never learn cursive handwriting. Perhaps the lawyers in question (maybe even Judge Gordon) can't write their signatures legibly. If so, might they not claim a violation of due process and/or equal protection if a clerk's Mickey Mouse-insistence on legibility prevents them from filing pleadings?

    Justice Scalia delivers one of his stock speeches -- again. "Supreme Court Justice Antonin Scalia railed against the era of the 'judge-moralist,' saying judges are no better qualified than 'Joe Sixpack' to decide moral questions....[Scalia] opened his remarks by saying, 'I brought three speeches, and I decided to give the most provocative one, because this seems to be too happy a crowd.'" More (Washington Post 03.16.2006). Comment. Another of his stock speeches is his "Ours is a 'Dead Constitution'" speech. As a rule, speeches by judges are b-o-r-i-n-g. Scalia's aren't boring, and I applaud that. But, although he gives a lot of speeches, he's awfully repetitive. Paraphrasing Spiro T. Agnew, if you've heard a couple of them, you've heard them all. The great Justice Holmes didn't give many speeches -- only 45 or so in his 50 years' of combined service on the benches in Massachusetts and then, starting at age 60, in Washington, D.C. They are collected in a wonderful slim little volume that I own. Many of them are just a few lines long. Each is different from the others. They are almost all memorable.

    Justice Ginsburg reveals death threats against O'Connor and her. "Supreme Court Justice Ruth Bader Ginsburg said she and former Justice Sandra Day O'Connor have been the targets of death threats from the 'irrational fringe' of society, people apparently spurred by Republican criticism of the high court. Ginsburg revealed in a speech in South Africa last month that she and O'Connor were threatened a year ago by someone who called on the Internet for the immediate 'patriotic' killing of the justices...Conservative commentator Ann Coulter joked earlier this year that Justice John Paul Stevens should be poisoned...." More (Seattle Post-Intelligencer 03.16.2006).

    Retired judge gets lifetime ban. "A former Beaver County district judge accused of favoring family friends and people tied to his business associates has been banned from the bench for life, the state Judicial Conduct Board announced Tuesday. The panel's Court of Judicial Discipline took the unusual step of removing Joseph Zupsic, 61, even though he retired as Center district judge a year ago...." More (Pittsburgh Tribune-Review 03.15.2006). Earlier. Beaver County judicial odds'n'ends (with embedded links).

    When it rains, it pours. Another excerpt from the above story: "Last year, the court of discipline removed Allan C. Berkhimer, a Cambria County district judge accused of making lewd comments to his staff and showing them online pictures of naked woman. Zupsic is one of several area magistrates who have run into trouble with the Judicial Conduct Board over the past year. Former Pleasant Hills District Judge Mary Grace Boyle agreed earlier this month to retire as part of a deal with the board to drop its investigation into claims that she used her office for campaign work. Last May, the court of discipline barred former Pittsburgh District Judge Moira Harrington from the bench for five years over accusations that she placed parking tickets on her windshield to avoid fines. The panel still is investigating Elizabeth Borough District Judge Ernest Marraccini, accused of unleashing a 15-minute tirade on 30 people in court on traffic charges."

    'Judge, we need a legal dictionary.' "After hearing evidence for nearly six months and receiving more than 100 instructions on the law, jurors in George Ryan's public corruption trial had their first question Tuesday: Could they have a law dictionary? The answer was no, but the question, sent in a note to U.S. District Judge Rebecca Pallmeyer, revealed the jury's foreman...." More (Chicago Sun-Times 03.15.2006). Comment. Query #2: Does this mean we can't have access to BurtLaw or WestLaw?

    South Dakota, Minnesota's troubled neighbor. "America's judges would like to write off last year's anti-court orgy as a political spasm. Tom ('Judges need to be intimidated') DeLay is on the back bench, the testy Supreme Court confirmation hearings are over, and the judge in Terri Schiavo's case no longer needs a deputy to escort him every time he walks his dog. But better times aren't coming back soon. The newest front in the war on the courts is being fought in South Dakota, where, in the shadow of Mt. Rushmore, a group called 'J.A.I.L. 4 Judges' is promoting one of the most radical threats to justice this side of the Spanish Inquisition...." Rushmore to Judgment (Slate 03.15.2006). Our earlier entries. Most recent: Latest on the J.A.I.L. initiative. For an earlier, more-detailed entry, with our comments, see, Maker of livestock-feed grinders wants J.A.I.L. for judges. Comment. The J.A.I.L. intiative isn't the only disturbing sign of SoDak extremism these days: the SoDak legislature and the governor believe that if a woman is raped and becomes pregnant, she ought to be compelled to proceed with the pregnancy.

    Fearful federal judges want free home security. "Three quarters of the nation's 2,200 federal judges have asked for government-paid home security systems that Congress approved last year after the killing of the husband and mother of a federal judge in Chicago, Attorney General Alberto Gonzales said Tuesday. The judges had asked that $12 million be set aside for home security after an unemployed electrician broke into the home of U.S. District Judge Joan Lefkow and shot her husband and mother to death...." More (Washington Post 03.14.2006). Earlier. Here's a link to a recent posting that we might have labelled BurtLaw and Montaigne on Court Security. You may infer from this earlier posting that we do not think the government ought to provide a free home-security system to every judge who requests one. In fact, we think that since 09.11 our government has gone a little crazy on the subject of security -- and on other subjects as well.

    $140,000 for new digs for judge in old courthouse but no handicapped access. "Circuit Judge George Mason III's new $140,000 office on the second floor of Westmoreland County's old courthouse will have almost everything when he moves in a few weeks from now. For security, the office has $7,000 worth of bullet-resistant glass in its 10 windows, a closed-circuit television system and a 350-pound, electrically operated, bullet-proof door. Inside, there are cable-television hookups and elegant cherry doors, chair railings and crown moldings. Mason has selected 'white chocolate' as the paint color for the walls. When the paint dries, 940 square feet of carpet with the 'highest commercial performance rating' will be installed along with 1,560 square feet of new tile on nearby areas. The floor coverings will cost $8,863. Then a Richmond company will deliver new furniture costing $19,537. Mason will sit at a $2,300 walnut desk beside a $2,079 credenza. Visitors will sit on three $419 Presidential Guest Chairs or, perhaps, on a $375 mahogany loveseat. But one thing Mason's new second-floor office in Montross will not have is access for the handicapped...." Details (Fredericksburg Daily Free-Lance 03.15.2006). Earlier. Annals of judicial chambers makeovers - Reining in those wild-spending judges.

    O'Connor's 'not go[ing] gentle into that good night' ain't news? Earlier we posted a link titled O'Connor takes on right-wing Republican extremists, to a speech in which the retired justice criticized certain non-judicial politicians (as opposed to judicial politicians) for threatening judicial independence by their attacks on the judiciary. I also added a "caution": When judges misuse doctrine to deflect criticism. Now Slate has an interesting piece on why her remarks were a nonstory for much of the American press: Jack Shafer, O'Connor Forecasts Dictatorship - Why didn't the American press chase the story? ("A retired justice needn't predict the end of democracy to make news. All she has to do is burp. So, why didn't the U.S. press react more strongly to her comments?"). For a predictable right-wing response to O'Connor's speech (she " a disciple of the late liberal Justice William Brennan"), posted today, 03.15.2006 in The American Spectator, click here. Related reading. Another Alabama Supreme Court Justice is 'at it.' Our hackneyed literary allusion, of course, is to this poem by Thomas (Dylan, not Clarence).

    Another Alabama Supreme Court Justice is 'at it.' "A Tuscaloosa attorney has filed a complaint with a judicial panel accusing state Supreme Court Justice Tom Parker of violating the standards of conduct for Alabama judges by writing a critical article for a op-ed page article by Parker that was published in The Birmingham News on Jan. 1...Parker's article criticized a U.S. Supreme Court decision that banned executions for killers who were under 18 when they committed their crimes...Parker called the U.S. Supreme Court's 5-4 decision 'the unconstitutional opinion of five liberal justices on the U.S. Supreme Court,' and he said that 'state supreme court judges should not follow obviously wrong decisions simply because they are precedents.'..." More (Times Daily 03.14.2006). Earlier. Alabama judge declares war on U.S. Supreme Court. Parker's campaign website. Comment. Yesterday we posted a link titled O'Connor takes on right-wing Republican extremists, to a speech in which the retired justice criticized certain non-judicial politicians (as opposed to judicial politicians) for threatening judicial independence by their attacks on the judiciary. I also added a "caution": When judges misuse doctrine to deflect criticism. Today I say that perhaps Justice O'Connor ought to have included judicial politicians like Judge Tom Parker (not to be confused with the great, forever-young Judge Alan Parker nor the immortal Col. Tom Parker) in her criticism. Parker, by the way, is a protege of ousted Alabama Chief Justice Roy Moore, who got elected on a "Ten Commandments platform" and ousted for refusing to follow a court order directing the removal of a "Ten Commandments monument" he personally had placed in the judicial center. Moore wants to be Governor, and Parker, who was elected associate justice in 2004, reportedly wants to run for the chief justiceship. Justice Thomas is his pal, swearing him in, in a private invitation-only ceremony back in January 2005. Some other relevant recent postings. Did reversed judge exhibit judicial equivalent of poor sportsmanship? Breyer says justices are "debating" more -- and yet....

    'March madness' hits courthouses and judges' chambers across the land. "He liked poker and gambling on the NCAA pool or any other thing that could justify a bet, but made sure to keep the stakes low...." From Jeff Bleich, Lessons from the Chief - Remembering William Rehnquist (Oregon State Bar Bulletin November 2005). "[Justice O'Connor] said Rehnquist also liked to wager -- on sporting events, on elections, 'even on the amount of snow that would fall in the courtyard at the court. He usually won,' she added...." Press-pool report - Rehnquist funeral 09.07.2005 (Wonkette).  Further reading. Is your NCAA Tournament pool illegal? (Sports Law Blog). Query. Might a judge's participating in such a pool open her up to disciplinary action?

    Woman with paint roller charges courthouse yelling 'Let my people go!' "A woman brandishing a paint roller attachment and yelling 'Let my people go!' charged into the courthouse here Monday, attacking a sheriff's sergeant before she was tackled, subdued and arrested. Vickie Hill, 53, of Twentynine Palms, ran through the entrance doors to the courthouse at Highway 62 and Whitefeather Road about 9:15 a.m. waving the makeshift weapon. She dashed around the metal detectors and into the lobby screaming, sheriff's Sgt. Steve Spear said...." More (Inland Valley Daily Bulletin 03.14.2006). Comment. Looked at superficially, an incident like this seems bizarre and inexplicable -- another kind of "March madness." But then one reads on: "Hill's husband...was attending a hearing for traffic violations in one of the two courtrooms at the small building...." According to the report, "[He] was unaware of the assault until he came out and started looking for his wife, whom he left waiting in the car..." He apologized to the victim and added, "I told her to stay in the car." Hmm. Perhaps he shouldn't have told her to stay in the car, no?

    Slow elevators = justice delayed = justice denied? "On his very first day on the bench, recently appointed Wake County District Court Judge Vince Rozier got stuck in an elevator at the Wake County Courthouse. 'We just sat for the next 20 minutes until the fire department came and got us out,' Rozier said. When the courthouse opened 35 years ago, no one expected the four elevators to be as crowded as they are today. Now, courthouse employees say people are having trouble getting where they need to go because of the elevators' age and speed...." More (WRAL.Com 03.14.2006). Comment. "Let the word go forth, if I am elected, I will bring the old 20th Century courthouse into the 21st Century...I will not stand idly by while judges risk getting trapped with commoners in slow, antiquated elevators...I will not tolerate unreasonable stoppages of the judicial production line by...."

    O'Connor takes on right-wing Republican extremists. "Sandra Day O'Connor, a Republican-appointed judge who retired last month after 24 years on the supreme court, has said the US is in danger of edging towards dictatorship if the party's rightwingers continue to attack the judiciary. In a strongly worded speech at Georgetown University...Ms O'Connor took aim at Republican leaders whose repeated denunciations of the courts for alleged liberal bias could, she said, be contributing to a climate of violence against judges. Ms O'Connor...declared: 'We must be ever-vigilant against those who would strong-arm the judiciary...It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.'...O'Connor singled out a warning to the judiciary issued last year by Tom DeLay...After the decision last March that ordered a brain-dead woman in Florida, Terri Schiavo, removed from life support, Mr DeLay said: 'The time will come for the men responsible for this to answer for their behaviour.'" More (Guardian Unlimited 03.13.2006). Earlier. Pelosi: 'DeLay's Vilification of Judges is Unworthy of a Leader - Phyllis Schlafly on removing jurisdiction from federal judges. Comment. a) Disclosure of bias: I feel the same way about the radical so-called "religious" right-wing extremists in the party as O'Connor does -- which is one reason I stood for election, despite no chance of winning, in the Third District MN Republican primary in 2004 against self-styled "moderate Republican" Congressman Jim Ramstad, whose party-line voting behavior suggests a deep fear of the personal political consequences of upsetting the extremists who have taken control of the MN Republican party. See, BurtonHanson.Com. b) While I agree with Justice O'Connor's criticism of some of the extremist critics, I caution against those who think criticism of the courts is a bad thing. Read on....

    When judges misuse doctrine to deflect criticism. Here's an entry of the same title dated 08.16.2001 from BurtLaw's Law and Everything Else - Court Gazing II:

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

For a 2000 essay expressing some of my views on the subject of judicial independence, click here.

    John Gardner on uncritical lovers and unloving critics. "The problem today is that our institutions have become caught in a savage cross-fire between uncritical lovers and unloving critics." John W. Gardner, The Recovery of Confidence (1970). Comment. Perhaps we have, on the one hand, too many people who are uncritical lovers of the judiciary and, on the other hand, too many unloving critics of it. Some Gardner links: Gardner as Secretary of HEW. Gardner as founder of Common Cause. Gardner's Writings.

    Delbert E. Wong, path-breaking Chinese-American judge, dies at 85. "Judge Delbert E. Wong, who was the first Chinese American to be appointed to the bench in the continental United States, died Friday night at Glendale Memorial Hospital. He was 85...." More (L.A. Times 03.12.2006). Comment. This is an obituary worth reading. An excerpt:

The Wongs were...pioneers in opening up the Silver Lake area to minorities. They had been looking for property throughout Los Angeles and in 1953 found a lot in Silver Lake. The real estate agent handling the transaction for the owner balked when he met with Wong, telling him that the land was not available to a Chinese American. Wong, however, found the name of the property owner and contacted him. The owner expressed dismay at the agent's position and threatened to fire him if he didn't negotiate with Wong. The family was the first to break the color barrier in Silver Lake, and it was in that home that Wong was stricken Friday.

Comment. "Nobody on his deathbed ever said, 'I wish I had spent more time at the office.'" Paul Tsongas (1941-1997). Many a person in public life prates about the importance of his or her family but it sounds like Judge Wong, unlike so many, actually lived it: his kids, all "successful," remember that he made breakfast for them every day, remember his being active in their scouting activities, etc. Good for him.

    No more 'My Lord' when addressing top judges. "The Bar Council of India (BCI) is very soon going to say good bye to its colonial mode of addressing judges of Supreme Court and High Court as 'My Lord' and 'Lordship.' Recently, BCI...adopted a resolution during its regular meeting with the state bar councils to replace the century-old addressing terms calling them...'relics of colonial past.'" The BCI is considering "Your Honor," among other terms, as possible replacements. "However, for subordinate courts they will continue with their 'Janab', 'hazoor' or whatever they decide according to their vernacular dialects." More (The Hindu 03.12.2006). Comment. One of the replacement forms of address under consideration is "Mr. Justice." We urge our many friends in India to reject that in favor of the gender-neutral "Your Honor."

    Annals of judicial marksmanship. "In the courtroom, he's the Honorable Robert J. Lynn, chief justice of the New Hampshire superior courts. Down at the shooting range, he’s Bob Lynn, the surest shot in all of New Hampshire. The 56-year-old jurist once again proved himself as formidable with a gun as he is with a gavel, winning the state’s annual Indoor Smallbore Rifle Championship last weekend in Peterborough...." And how, you undoubtedly are wondering, are judging and shooting similar? "'One of the things I always say about being a judge: We are the facts and details people. Sweeping propositions or slogans may be fine for some branches of government, but we deal with the details, he said. 'You have to sort of sweat the small stuff in shooting, too.'" More (Manchester Union-Leader 03.12.2006).

    Justice Holmes on shooting 'a bird on the wing.' "With all humility, I think, 'Whatsoever thy hand findeth to do, do it with thy might.' Infinitely more important than the vain attempt to love one's neighbor as one's self. If you want to hit a bird on the wing, you must have all your will in focus, you must not be thinking about yourself, and equally, you must not be thinking about your neighbor: you must be living in your eye on that bird. Every achievement is a bird on the wing."

    Judge retires after competency is questioned. "A Los Angeles Superior Court judge whose competency was questioned by a state commission because he allegedly suffered from a degenerative brain disease has retired, officials said Friday. A hearing on Judge Rodney E. Nelson's competence was scheduled for Monday by the Commission on Judicial Performance...Nelson, 71, denied the allegation in court documents. He has been on administrative leave since May, court spokesman Allan Parachini said...." More (L.A. Times 03.11.2006).

    Judge on the spot over questioning of immigrants in traffic court. "A Broward County judge on the shortlist for a promotion to Circuit Court has repeatedly asked traffic court defendants if they were here illegally, and in at least one case, turned over an illegal immigrant to law enforcement. Several Hispanic attorneys and judges questioned whether Broward County Judge Lee Seidman broke rules governing courtroom procedure. And members of a judicial screening committee who put him on the shortlist said he misled them about his treatment of illegal immigrants...." The judge denies wrongdoing. Details (Miami Herald 03.11.2006).

    Dahlia Lithwick on gay parenting in the courts. "A heads-up to those of you still fretting about the alleged evils of gay marriage: The parade has moved on. Try as you may to vote, or legislate your way out of a country that solemnizes such relationships, committed gay couples are already giving birth to, adopting and fostering children. Whether or not same-sex marriage becomes widely legal in America, same-sex parenting is a done deal. Around the country, courts are increasingly recognizing that reality, with more generous notions of what 'parenting' and 'family' mean...." Why courts are adopting gay parenting (Washington Post 03.12.2006). Alternative link (Slate 03.11.2006). Comment. To read a position paper I wrote & published on the issues underlying the same-sex marriage controversy during my anti-war campaign in the Republican primary for Minnesota's Third Congressional District in 2004, click here. See, also, How can men in long, flowing gowns uphold ban on gay marriage?

    Police investigate allegation of threat to kill judge. "A Staten Island judge, flanked by armed court officers in bulletproof vests, canceled his morning calendar yesterday following a purported death threat from an inmate.
'Nobody knows if the threat is legitimate,' a law enforcement source said. 'But you still have to take the necessary precautions.' A law enforcement source said a Rikers Island inmate reported that he overheard another prisoner, a suspected member of the Bloods gang, threaten to order a drive-by shooting at the home of Judge Alan Meyer...." More (N.Y. Daily News 03.11.2006).

    Did magazine's 'Person of the Year' honor go to judge's head? Last December Time magazine's Person of the Year cover story here in the U.S. was devoted to The Geeks (Gates & wife) and The Rocker (Bono). But "up nort'" in Canada Time publishes a Canadian edition. Its Person of the Year cover in December was graced by Justice John Gomery, who oversaw a commission inquiring into a so-called "sponsorship scandal." According to an article in 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. Now The Toronto Star suggests all the praise may have gone to the judge's head:

What's going on in John Gomery's head? How could this experienced judge write a preface to an insignificant book [François Perreault, Inside Gomery] by the spokesman of "his" commission of inquiry, which breaks the confidentiality of the work done and provides the commission's enemies with fresh arguments?...Who doesn't love, who wouldn't love, John Gomery? He embodied virtue in public affairs; he was a redresser of formidable wrongs; he even eased our pain. Let's never underestimate the therapeutic effect of a commission of inquiry. The country comes out of it the way people do when they step out of the confessional, with a cleansed soul and the feeling that nothing will ever be the same. John Gomery was told so often he was doing a good job that in the end he stopped distrusting himself.

Oh, no! Judge Gomery struck by a case of vanity (Toronto Star 03.11.2006). Comment. One poem that judges and all ambitious people in public life ought to read -- and then re-read from time to time -- is Robert Frost's great poem, "The Fear of God." I recommend that the reader pay special attention to Frost's caution to those who "rise from Nowhere up to Somewhere" of the need to "Stay unassuming" and to "keep repeating to yourself/ You owe it to an arbitrary god/ Whose mercy to you rather than to others/ Won’t bear too critical examination...." But, alas! How hard it is for a judge not to smile and say "Good morning, Your Honor!" on first looking in the mirror each morning! How hard it is to keep The Eleventh Commandment, which is "Thou shalt not take thyself too damn seriously"! How hard it is, is illustrated by the fact that the U. of M. professor who first taught me that commandment seemed to me, at least in class, to be a vain, arrogant man. :-) Further reading. Ecclesiastes ("Vanity of vanity, saith the Preacher, vanity of vanities, all is vanity"); Vanity Fair, by William Makepeace Thackeray, who also wrote, in The Newcomes, "The wicked are wicked, no doubt, and they go astray and they fall, and they come by their deserts: but who can tell the mischief which the very virtuous do?"

    How you gonna keep 'em down on the farm, after they've seen Beijing? "Serious shortages of judges in China’s poorer western regions have left some local courts almost unmanned and others relying on unqualified staff to handle cases, according to one of the country’s top provincial judicial officials. Zhao Shijie, president of the Higher People’s Court of south-western Yunnan province, said the judicial haemorrhage was caused by overly high qualification exam requirements that made it impossible to replace those who retired or left because of poor working conditions...." Details (Financial Times 03.11.2006). Comment. We have a surplus of lawyers. Maybe China ought to consider "outsourcing" these positions to Americans.

    May a judge circulate petitions to get candidates on judicial election ballot? "At a meet-the-candidates forum at the United Auto Workers Local 425 hall last week, Domestic Relations Judge Paulette Lilly, a Republican, said someone questioned her about her circulating petitions for her magistrate Jeffrey Csokmay. He is running for common pleas judge as a Republican...She said yesterday that she also circulated petitions for Common Pleas Judge Thomas Janas, a Republican, who is running for re-election and obtained more than 50 signatures...." The judge maintains helping people get on the judicial election ballot does not constitute working in other judicial campaigns. A spokesperson for the Ohio Supreme Court Board of Commissioners on Grievances and Discipline is quoted as saying the board hasn't addressed the issue in the past. More (The Morning Journal 03.11.2006). Comment. It strikes me that this is campaigning. But what do I know? I'm the guy who thinks joint traveling and joint appearances by sitting judges who are running for additional terms constitute a form of cross-endorsement or campaigning for each other, but not all judicial conduct boards see it that way.

    Dropping the baton. "Reversing a controversial election maneuver, Lane County Circuit Judge Lyle Velure announced Thursday that he will not retire and will remain on the May primary ballot to retain his seat. Later in the day, Eugene lawyer Rohn Roberts announced that he is withdrawing his bid for Velure's seat -- which was a guaranteed shoo-in on Tuesday after Velure dropped out of the race hours before the filing deadline so that Roberts could file at the last minute to become the sole candidate for the post. Their collaboration, though apparently legal, drew immediate criticism as a possible violation of judicial ethics...." More (Eugene Register Guard - OR 03.11.2006).

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

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Affiliated Web sites

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

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

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

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

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