The Daily Judge
© 2006 Burton Randall Hanson
       Archives - 04.29.2006 - 05.12.2006
"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.

    The fishing opener and judges who like fishing. It's that annual rite of spring in Minnesota, the fishing opener, when the governor is obliged to trek north and at least pretend to like fishing in what often is still cold and/or wet weather. My dad, the late Russell G. Hanson (depicted right) liked, even loved, fishing, and I've known a number of judges who liked, even loved, fishing, regardless the weather or the politics of it. One judge who was devoted to it was the late John Voelker (1903-1991), the former Michigan Supreme Court Justice who, under the pen name, Robert Traver, wrote Anatomy of a Murder. Voelker also wrote several much-loved books on trout fishing in the Upper Peninsula as well as a book titled Small-Town D.A., about episodes in the work of a D.A. in the U.P. Here's his "Testament of a Fisherman," which I think gives a clue as to the kind of judge, and man, he was:

I fish because I love to; because I love the environs where trout are found, which are invariably beautiful, and hate the environs where crowds of people are found, which are invariably ugly; because of all the television commercials, cocktail parties, and assorted social posturing I thus escape; because, in a world where most men seem to spend their lives doing things they hate, my fishing is at once an endless source of delight and an act of small rebellion; because trout do not lie or cheat and cannot be bought or bribed or impressed by power, but respond only to quietude and humility and endless patience; because I suspect that men are going along this way for the last time, and I for one don't want to waste the trip; because mercifully there are no telephones on trout waters; because only in the woods can I find solitude without loneliness; because bourbon out of an old tin cup always tastes better out there; because maybe one day I will catch a mermaid; and, finally, not because I regard fishing as being so terribly important but because I suspect that so many of the other concerns of men are equally unimportant -- and not nearly so much fun.

Further reading. In 1998 I compiled many of the witty (and wise) observations of my friend, Justice John E. Simonett of the Minnesota Supreme Court, in a well-received piece I called Quotations of Chairman John on Law, Life, and Other Things That Matter (Such as Fishing and Pulltabs), which was included in a compendium volume on his judicial career published in 1998 by the Minnesota State Law Library as part (No. 11) of its Minnesota Justice Series. I wish I could provide a hyperlink to the piece, but, alas, it is not available online or widely available even offline. If one visits the Minnesota Historical Society or the Library of Congress, one will find it there.

    Riot police attack people demonstrating in support of judicial independence. "Thousands of riot police clubbed and arrested protesters and journalists yesterday as the Egyptian government clamped down on a demonstration organized to support pro-reform judges...The demonstration was planned as a show of solidarity for two key leaders among Egypt's judges, who have accused the regime of election fraud...." More (Boston Globe 05.12.2006).

    Battle for chief justiceship in Alabama: Is challenging justice unproductive? One of its newest justices on the Alabama Supreme Court, Tom Parker -- who is a protege of ousted Chief Justice Roy Moore, the so-called "Ten Commandments Judge," and a disciple of Justice Clarence Thomas, who attended his private swearing-in in January 2005 -- is running against the current chief, Drayton Nabers, in the Republican primary and has put together a "slate" of three candidates running in the primary against three other of his brethren on the court. One of the issues that has emerged is whether Parker's productivity is below average. Relying on his having signed his name to a significant number of orders denying petitions for review, Parker claims he's in fact the second most productive justice. A spokesperson also claims "the majority on the court are manipulating things" so some of Parker's opinions in full-blown appeals won't be released until after the June 6th primary. More (Mobile Register 05.12.2006). Comment. The article (click here for single-page version) does a pretty good job of examining the statistics for the various types of opinions and orders and, in my opinion, backs up the claim that Parker has been significantly less productive than average in writing opinions in full-blown appeals. It is inaccurate of him to try count his summary orders on petitions for review as in some way being equivalent to opinions in full-blown appeals. The claim that other justices are withholding release of some of his opinions in order to make it appear he is less productive is a serious allegation. See, More fallout in CT court scandal and embedded links regarding the current scandal in CT in part over an outgoing chief's deferring release of an opinion for a political purpose. Earlier postings. Panel rejects complaint against controversial AL Justice over column - Alabama justice defends low productivity - A dysfunctional 'court family' -  Another Alabama Supreme Court Justice is 'at it.'

    Right-winger rants wrongly about judge claiming 'godlike' powers. "At first glance, Conservative MP Maurice Vellacott appears to be ranting from the far right in his peculiar remarks about the Chief Justice of Canada's [claiming] 'godlike' powers. But Mr. Vellacott is hardly the first in his party to make bizarre comments about the Canadian judiciary. It's a strain in conservative thought -- more strain than thought -- that the judiciary is running amok. No less than Prime Minister Stephen Harper, when he was in opposition, offered his own wild theories on the subject...." More (Globe and Mail 05.10.2006). Comment. The right-wing MP claims Supreme Court Chief Justice Beverley McLachlin gave a speech in NZ claiming judges have "godlike" powers. The Globe & Mail has examined the speech and makes clear she said no such thing. However, she did say in her NZ speech, as we noted in early December 2005 after she gave it, that in some cases judges have an obligation to go beyond the letter of the law. See, entry titled Chief Justice urges judges to go beyond letter of law, and our comments thereto, as well as a neat picture of her (she's quite photogenic). Perhaps that is the real reason the MP is irked; perhaps that is the reason we like her. Particularly, we like the fact that the C.J., unlike most judges, is not afraid to say something fresh. Judicial confirmation in America has become a rite, similar to a New Testament confirmation of faith or an Old Testament bar mitzvah, with the confirmand expected to utter formulaic phrases like "I see my job as judge to interpret and apply the law, not make the law" and otherwise recite "the Creed." Most judges have been so cowed by fear of being called "judicial liberals" that they mouth the accepted phrases -- "Judges shouldn't legislate," blah, blah -- even though the phrases, when used to self-describe every judge in America, have become meaningless. Perhaps by their over-willingness to mouth platitudes in order to get their appointments, they inadvertently call into question whether they have the moxie to stand firm in defense of constitutional principles when it's not the popular thing to do so. Although it may appear that all judges and judge wannabe's in Canada, as in the U.S., say the same stuff, in fact Chief Justice McLachlin is gutsy enough to say something different. Update. Vellacott resigns as head of parliamentary committee post under pressure (Toronto Star 05.11.2006). On his resignation from the post, the Toronto Sun editors say: "For the love of God, can we please end this hysterical over-reaction to innocuous remarks by a Conservative MP about judges seeing themselves as gods? Given the rhetoric by the opposition, the Canadian Bar Association and the Globe and Mail, you'd think...Vellacott had called for a holy war on the Supreme Court." Comment. We agree. We think legislative politicians have the right to robustly criticize the public utterances of judicial politicians. We happen to like some of the things the C.J. said, but that doesn't mean we think the M.P. committed unpardonable sin in slightly exaggerating what she said (for which he apologized) or in criticizing the gist of her remarks. The net effect of hopping on people for slightly deviating from "the Creed," whether it be a party's creed or a judicial creed, is to squelch the free and robust expression of differing opinions which is the lifeblood of a vigorous, creative democracy.

    More fallout in CT court scandal. "Gov. M. Jodi Rell announced Monday that she is appointing a commission to examine issues of public [open-ness of] the courts, saying the judicial branch 'can and must be made more open to the public.'...She has appointed prominent Hartford attorney Thomas Groark to chair the commission, and former Freedom of Information Commission Executive Director Mitchell Pearlman as one of its members. Senior Associate Justice David M. Borden, as acting chief justice, last week began assembling a committee of his own...." More (Hartford Courant 05.09.2006). Comment. The "scandal" involves, inter alia, retiring Chief Justice William Sullivan's deferring release of an opinion dealing with access to court records for a political purpose. We've posted a number of entries on it: The 'Judges Protection Council'?; CT Supreme Court mess: lawmakers to ask justices to testify; Latest on uproar over C.J.'s deferring opinion's release; and Outgoing C.J. admits holding up decision to help colleague succeed him. BTW, we argued for greater real (as opposed to faux) openness of courts in an essay/position paper we wrote in 2000 in connection with our general election campaign for state chief justice in MN. See, BurtLaw on Judicial Independence and Accountability.

    Spying on judges? "[Trinidad] Prime Minister Patrick Manning has been accused of spying on judges in an attempt to control the judiciary. In fact, Manning is being accused of not only focusing his personal 'spying machine' on judges but lawyers as well, former Attorney General Ramesh Lawrence Maharaj says...." More (Alter Presse 05.10.2006). Comment. That's a pretty shocking allegation to make. A reader, in fairness, ought to be skeptical of it unless and untel the former AG backs it up.

    Playing the 'judge card' again. "Presidential adviser Karl Rove and White House counsel Harriet Miers yesterday told conservative activists and Senate staff that the administration would soon send the names of more than 20 judicial nominees to Capitol Hill for confirmation...Rove’s participation in the meeting could mean the White House intends to emphasize the judiciary to rev up the conservative base in the run-up to the midterm election...." More (The Hill 05.09.2006). Comment. I'm a Republican, of the Eisenhower-Rockefeller variety. I sadly concluded in 2002, about the time that the President was cheerleading the country into invading Iraq, which I opposed, that this Administration would go down as one of the worst Republican Administrations. I'm sorry to say I've been proved right. Bush reminds me of the organist at one of the last home games of the dismal season of a cellar-dwelling baseball team who tries to rev up the enthusiasm of the season-ticket holders by playing the "Charge!" song. It's technically still only mid-season for Bush but not so for all the MOC's whose current terms expire next January rather than in 2009. What can Bush do to help them? Why, rev up the season-ticket holders, the base radical right-wing base, by playing the old "Judge!' song yet again.

    Playing the 'sex crime card.' "Lt. Gov. Kerry Healey wants Massachusetts to establish separate courts to handle sex crime cases in an effort to improve how victims are treated and sex offenders are monitored and to drive down the number of new crimes committed by known offenders. Healey, who has served in the Romney administration as the point-person on criminal justice issues, made the announcement Monday...." More (Boston Globe 05.08.2006). Comment. We're still in the stadium (see, above) but now the organist is playing the "Sex Offender!" song. Someone must be running for governor or president. How about both: Romney wants to be prexy (see, Romney courts Iowa Christians) and Healey, who wants to succeed him as guv, thinks her plan for "sex courts" is politically sexy. For multiple reasons, we strongly oppose the rape court proposal, which seems to be aimed at making courts part of some war on crime. Courts ought never be part of a war on crime. Any war on crime is something best left to pretty faces on the local TV "news" during "Sweeps Month," to attention-seeking prosecutors with visions of higher office, to police, etc. The role of courts is to "strike the balance true," to be neutral arbiters who, paradoxically, are or ought to be biased as all-get-out, in favor of truth, justice, etc. Earlier entries, with comments and links. Legal groups oppose call for special rape court - Annals of specialized courts - rape courts?

    The sky is not falling. "Judicial candidates appear to be exercising restraint in the first [KY] election since new rules loosened the limits on campaign speech...." More (WCPO.Com 05.08.2006). Comment. When all about us the Chicken Littles were saying that the sky was about to fall and blaming it all on the Supremes for the judicial free-speech decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), we kept our heads, saying the decision was correct and did not portend the end of a fair and independent (but accountable) judiciary. Cf, Rudyard Kipling, If. Earlier entries, with commentary, include: SCOTUS declines review of USCA's case on judicial campaigns - MN. Supreme Court reversed again on free speech - Free speech is a 'bad idea'?

    Threat prompts courthouse employee to withdraw application for promotion. "A threatening letter left on a 2nd District courthouse supervisor's desk [in Ogden] prompted the woman to withdraw her application for a top administrative job [clerk of court] and may result in hate crimes charges...." More (KUTV - Salt Lake City 05.08.2006).

    Expert: judges issued 1,250 unjust decisions. "The Lebanese judiciary has issued at least 1,250 arbitrary and unjust verdicts in the past 10 years, according to a legal expert who proposes establishing a special court to look into and possibly reconsider these rulings. Speaking during a news conference on Monday organized by the Foundation for Human and Humanitarian Rights in Lebanon, Victor Ghoraib also said the Lebanese judiciary includes 20-25 corrupt or incompetent judges, according to the Justice Ministry...." More (Daily Star - Lebanon 05.08.2006). Comment. He arrived at the estimate by arbitraily attributing to each allegedly corrupt judge ten "unjust" decisions a year and multiplying by ten. In other words, his estimate is a guesstimate.

    Kiwi judges under fire for $300,000 jaunt to plush resort. "District court judges spent more than $315,000 of taxpayer money on a five-day conference at a Queenstown hotel -- but the chief judge has refused to say what was discussed. The conference meant regular district court business was suspended for the week, with urgent matters being handled by retired judges or the few judges who stayed behind...[T]he total cost of the publicly funded conference came to just over $316,000, including: $125,600 for participants' travel costs;
$89,100 for accommodation; $79,250 for venue hire and catering at the hotel;
$22,300 for miscellaneous costs...." More (New Zealand Herald 05.07.2006). Comment. Back on 12.07.2001 I posted some comments following my summary of a news story about some judge behaving badly at a taxpayer-financed judges' outing at the plush Amelia Island Plantation Resort:

Without regard to whether judges participating in these "conferences" comport themselves well after hours, I have a suggestion to governors around the country who are reviewing budget requests submitted by courts in these times of severe revenue shortfalls: don't go laying off so-called lower-level non-essential court employees. Instead, tell the court administrators to draw a red pencil through all requests for appropriations for judicial "conferences" at resorts. While you're at it, tell them to do the same for requests for appropriations for judicial travel, meal and "educational" expense allowances, for catered judicial meetings, for subscriptions, for memberships in bar associations, for bottled water, etc. Do the same for the prosecutors and the public defenders. These folks, judges included, are all public lawyers receiving not just big paychecks but generous pensions, generous vacation allowances (typically, 4 weeks), more paid holidays than most workers get, good working conditions, etc.

    Judge condemns picketing of judges' homes. "Prinicipal Family Court Judge Peter Boshier says judges will not bow to pressure being put on them by men's groups protesting outside their homes...." More (Radio New Zealand 05.08.2006). Comment. I think it's rude and uncivil to picket the home of a judge or any other public (or private) figure (and also rude and uncivil for reporters to camp out outside a person's home). Picketing outside a courthouse ought generally to be permitted -- see, my comments at Limiting speech outside courthouse -- but picketing outside a judge's home ought not generally be permitted.

    What's it like to judge moot court at Harvard Law School? "Should drug dealers be taxed on their illegal substances? This was the question that assistant commonwealth’s attorney Dale Durrer was faced with at a competition last month. Durrer was one of 40 judges assessing the ability of first-year Harvard law students to prosecute a case involving an alleged drug dealer versus the state of Tennessee...." More (Culpeper Star-Exponent 05.08.2006).

    Report: juvenile courts are 'unfair.' "Courts established to tackle youth crime are 'flawed' and unfairly criminalise young children, according to a damning report by Scottish executive advisers..." More (Sunday UK Times 05.07.2006). Comment. I took a course in juvenile delinquency in the sociology department at the U. of Minn. during the 1963-64 school year and was allowed to sit as an observer at a normally closed-to-the-public session of the court. I still remember the name of the poor black kid who was under ten years old who had engaged in petty larceny, and I still remember my shock at the judge's metaphorically yanking the kid from his crying, pleading mom and sending him off for "treatment," something that of course probably wouldn't have happened if he'd been a kid from a so-called "good home" in a "good suburb." I couldn't help but remember similar "bad things" I'd done as a kid in a town that knew better that, to a considerable degree, to be a normal boy is to be delinquent in one way or another. Further reading. BurtLaw's Law & Kids.

    The 'Judges Protection Council'? The Hartford Courant has an editorial on the scandal in CT that we recently noted involving retiring Chief Justice William Sullivan's deferring release of an opinion for a political purpose. The editorial states in relevant part:

Now-Senior Justice Sullivan would do himself a favor if he fully retires rather than continue to sit on cases. If he remains active, there surely must be an investigation by the Judicial Review Council...He says he broke no rules. If that's the case, Justice Sullivan has nothing to lose -- in fact, he could undo some damage -- if he were to ask the council to hold an open preliminary investigation, as statute permits. That would, belatedly, set a good example. An investigation to determine probable cause is closed to the public unless the accused judge asks that it be open. This panel has a reputation of being the "Judges' Protection Council."

    Judge censured for routinely violating criminal defendants' rights. "The [WA] Commission on Judicial Conduct has censured...King County District Court [J]udge [Mary Ann Ottinger] and recommended that she be suspended for one month without pay, saying she routinely violated the rights of defendants...for years, even after she was...warned by the commission in 2002...." More (Seattle Post-Intelligencer 05.06.2006). Comment. The violations -- basically not following the standard checklist a judge should follow in accepting pleas -- are the sort many trial judges have committed. The commission took the unusual action of censuring her because she apparently didn't learn from the warning issued in 2002.

    Judge bars reporters from taking notes in her courtroom. The judge is Wendy Susco, a traffic court judge in CT who herself was once a student journalist. A reporter was taking notes when Susco "suddenly demanded that I stop taking notes because notebooks were not allowed in the
courtroom." The reporter quoted Susco as saying reporters could "get the notes from the court transcript." When the reporter asked by what authority she was banning him from taking notes, the judge "became more agitated." She eventually allowed the reporters to stay if they didn't take notes. According to The Journal-Inquirer, "Susco's order came three months after judicial officials said that no Connecticut judges have mandates banning notetaking." One of the reporters complained to judicial officials and by Thursday last the judge had gotten the word, saying nothing to a reporter sitting in full view of her taking notes. More (Journal-Inquirer - CT 05.06.2006). Comment. Surprisingly, we come across a story like this every mow and then. See, e.g., our February posting, Is this America? No, Cook County?

    Chief Justice: we are no longer viewed as demigods. "[Chief Justice Artemio Panganiban of the Philippine Supreme Court said that] 'as the country moves towards transparency...the high court is no longer a fortress the way it was regarded in the ancient times when justices were treated as demigods...'" More (INQ7.Net 05.07.2006). Comment. Ah, for the good old days.

    Prayer Day at the county courthouse. "Though temperatures hovered in the low 40s Thursday, more than 40 people gathered on the Yellowstone County Courthouse lawn at noon to fervently pray...." More (Billings Gazette 05.05.2006). Comment. Nothing wrong with such a gathering, as long as other peaceful assemblages of others for other lawful purposes are permitted. We sorta like the idea of county courthouse as multi-purpose center, fortified not by barriers and metal-detectors and searches and sheriff's deputies but by the presence and activities of those who own the courthouse -- i.e., "the people" (or, as Henry Fonda, channeling Abe Lincoln, pronounced the word, "pee-pull"). Back in the 1930s in my hometown, huge crowds turned out for political rallies on the courthouse steps, to hear, for example, a speech by the mesmerizing Gov. Floyd B. Olson or one by Rev. O.J. Kvale, the Farmer-Laborite Norwegian-Lutheran minister who defeated Andrew Valstad, the Rep. whose name was given to the national prohibition law. Our vision: art shows, community band concerts, ice-cream socials, elaborate flower gardens maintained by local garden clubs, political rallies, Chautauqua-style speeches, Apple-Blossom Festivals, weddings, etc. -- all on the courthouse lawn, on the courthouse steps, or inside the courthouse. Sadly, more & more courthouses are becoming fortresses & their owners, the people, are being made to feel less & less welcome. See, Building courthouses with security in mind, BurtLaw and Montaigne on Court Security, and How about a courthouse surrounded by & filled with flowers?

    Reviews of two new books. The books reviewed, by Elaine Cassel, are: Michael C. Dorf, No Litmus Test: Law versus Politics in the Twenty-First Century (2006), and Charles Gardner Geyh, When Courts & Congress Collide: The Struggle for Control of America's Judicial System (2006). More (Writ at FindLaw.Com 05.05.2006).

    UAR to allow women to become judges. "The Ministry of Justice has revised the federal judicial law to pave the way for women to take up posts like judge and prosecutor...." More (Khaleej Times - United Arab Emirates 05.05.2006). Comment. Before you ask rhetorically why it has taken so long, you ought to bear in mind that it's just over 50 years ago that my alma mater, Harvard Law School, in existence since 1817, began allowing women to attend and that it's only in recent years that classes there contained significant numbers of women. Further reading. BurtLaw's Harvard Law School and BurtLaw's Law and Women.

    Fairness of bar poll on qualifications of judicial candidates questioned. In March, nine lawyers faced off in a primary election in Illinois in the race to see who will replace Harry Bulkeley, who is retiring as the circuit judge residing in Knox County, IL. Shortly before the primary, the Illinois State Bar Ass'n. released results of a bar poll showing that three of the nine had received sufficient votes to be "recommended." The two winners who advanced to the general election were both "recommended." Now "[f]our of the nine [have] sent a letter to the Illinois Bar Association questioning what they called 'a major irregularity' in the ISBA poll. The candidates are concerned that 45 of the 143 ballots in the poll were requested by either non-ISBA members in the [circuit in question] or ISBA members outside the circuit, which could be an attempt 'to improperly influence the results' of the poll. Ballots are automatically sent to ISBA members within the circuit...." More (Galesburg Register-Mail - IL 05.04.2006). Comments. When I stood as a candidate for chief justice in the general election in MN in 2000 my attitude in advance was that voters ought not pay much attention to the results of the statewide bar poll. Of course, this was easy for me to say because I knew in advance I stood no chance of getting many "votes" in the poll, if for no other reason than that lawyers in MN traditionally support the sitting judge against impudent challengers to "the system." BTW, letters were sent by my opponent's camp to all the lawyers eligible to vote in the poll urging them to vote for her; those letters were timed to arrive shortly before the bar poll "ballots" were delivered. I suppose I could have sent similar letters but, as I said, I didn't give a damn what lawyers thought of my candidacy, and, moreover, I had vowed not only to accept no contributions or endorsements from anyone, lawyers or nonlawyers, but to limit my expenditures to no more than $100. (Clearly, a winning strategy.) Anyhow, I still have a phone answering machine tape of the bar association representative, an attorney I disliked, who called me and left, in a tone that seemed to me to be gloating, the results of the poll. We know nothing about the IL poll in question but we think voters who think lawyers have special objective, unbiased insight into the qualifications of judicial candidates are just plain wrong. People should no more blindly rely on their recommendations than they should blindly rely on, say, the "intelligence" offered by Bush-Cheney-Rumsfeld in support of an unprovoked pre-emptive invasion of another country. In such an instance, as in all instances, a little Holmesian skepticism of so-called expert information and/or opinion is in order.

    Scalia is still 'at it.' Speaking at a Law Day luncheon sponsored by the Bar Ass'n. of Greater St. Louis and attended by 1,000 attorneys, judges, etc., Nino Scalia appears to have given one of his "stock" speeches:

Scalia said unelected judges are taking the power to decide moral questions that ought to be resolved by the people, and warned against the specter of "government by judicial aristocracy." Scalia also attended a Catholic Law Day Mass, where he heard Archbishop Raymond Burke of St. Louis denounce laws that deny the "inviolability of innocent life."

More (St. Louis Post-Dispatch 05.04.2006). Comment. Like so many public figures before him who lectured on the old Chautauqua Circuit, Justice Scalia (or "Nino," as he is known to people on the judicial/academic poobah circuit) has a number of "stock" speeches that he delivers, with minor variations, over & over -- and over -- again. One is his "Ours is a dead Constitution" speech. His speechwriters appear to be, among others, a) Trent Lott, who coined the equally felicitous & persuasive phrase "the nuclear option" with reference to the G.O.P.'s threat several months ago to abandon the traditional requirements for ending a filibuster, b) Pope Benedict XVI, who reportedly is considering "approving" the use of condoms by HIV-infected Catholic husbands when having sex within marriage, c) some unidentified intellectual heir of Ned Ludd, and d) the Muse of the late but much remembered Justice James McReynolds. Although we often disagree with Nino, we aren't offended by his eruptions (or his gestures), which, we believe, deserve the same judicial-free-speech protection Scalia and four others on the Court properly "found" in the "dead Constitution" in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

    Linda Greenhouse on a different atmosphere at oral argument. Linda Greenhouse, the NYT's award-winning Supreme Court specialist reporter, says she detects a change in atmosphere at the Supreme Court since the anointing of John Roberts as Chief Justice and the departure of Sandra Day O'Connor and her replacement by Samuel Alito. O'Connor was in the habit of asking a question almost immediately without giving counsel a chance to give a coherent opening. Greenhouse reports that with O'Connor's departure, counsel now has a few minutes to set the stage. Moreover, now that Roberts is the Chief, the other justices seem to be more courteous, allowing counsel to answer one justice's question and allowing that justice to ask a follow-up question without one or more of the others jumping in, MacLachlan-Group-style, with questions or comments. In short, "there is a new coherence and civility to the sessions." Greenhouse also says the atmosphere at conferences has changed: "Chief Justice Roberts is reliably said to be presiding over the justices' private after-argument conferences with a lighter hand, not watching the clock as closely and permitting more conversation." More (N.Y. Times 05.03.2006). Comments. a) Justice Byron White said that "Every time a new justice comes to the Supreme Court, it's a different court." As anyone who has closely observed a multi-member appellate court knows, this is true. Indeed, a sort of "courtship dance" often takes place, with the "old" judges "dancing" in various ways to win the attention of (and perhaps ultimately influence over) the newcomer, and vice-versa. Each judge may change in the process. Another metaphor that partly describes what may take place is that the "new" court goes on a "shakedown cruise" for a period of time. A "shakedown cruise" is "A cruise undertaken to test a ship's systems, mechanical and human, sometimes made with passengers traveling at a discount." (Travel Industry Dictionary.) And there's the slightly different metaphor of the "honeymoon." Whereas technically a "honeymoon" period traditionally lasted only a month & a "shakedown cruise" the length of the cruise, the "period of adjustment" for the members of a "new" court lasts at least a year. Moreover, in my opinion, there is never a "the Court" because a multi-member appellate court is always, in many different ways, a work in progress. What Greenhouse is reporting is a snapshot of arguments in the spring of 2006, not necessarily a historically-significant trend. b) It is also worth mentioning that Greenhouse, with her influential readership in the NYT, which the justices read, is in some way a passenger on the shakedown cruise, or a member of the wedding party. For my taste, she is too reverential, too deferential. There is a price reporters sometimes pay in order to get close enough to cover people in power. If they don't get close, they don't get off-the-record interviews, don't get scoops, miss out on insiders' gossip, etc. Her reporting is always interesting but one ought never abandon one's Holmesian skepticism in reading stuff she writes or stuff any reporter writes. When I read this piece, I ask: Is she in some way serving as a mouthpiece for the Court in this story? Is she in some way also trying to ingratiate herself with "the new Court," just as each justice on that Court is doing a dance of sorts? c) If oral arguments are more civil now, is this necessarily a good thing?

    Judge on trial for allegedly beating girlfriend. "[Superior Court Judge Rucker] Smith[,52,] is on trial in Sumter County's State Court on one count of battery and two counts of simple battery, all misdemeanors" based on allegations he assaulted his girlfriend, Rachael Oliver, who is 30. Specifically, she claims that Smith "pushed her down, threw her off a porch, and then dragged her before she was able to run away." Judge Smith's counsel questioned Oliver Wednesday about an e-mail she sent Smith before the alleged assault in which she said, "I will see you fail. I wish the worst on you. I'm waiting and watching for my opportunity." More (Columbus Ledger-Enquirer - GA 05.03.2006).

    What if SCOTUS 'dumbed down' its opinions and 'told all'? Dahlia Lithwick, our favorite SCOTUS commentator, pens an imagined opinion in the Anna Nicole Smith Case: Justice Breyer Finds Anna Nicole Hot - If Supreme Court opinions were written for the cable news shows (Slate 05.01.2006).

    Quote of the Day. "Although it is perhaps not inappropriate that we sit in red on May Day, I would myself have preferred to sit in a plain black robe with my pate exposed to public gaze." Western Australia's new chief justice, Wayne Martin, whose plan for an overhaul of the courts includes abolishing the inherited British garb (red robes and wigs) and broadcasting court proceedings on the internet. More (The Australian 05.03.2006).

    Annals of specialized courts. There has been a "surge" in attacks on tourists on Trinidad's sister island, Tobago, that prompted authorities in the UK to issue travel advisories. Now the Tobago House of Assembly is establishing a special court for crimes against tourists that will be open on a 24-hour-a-day basis and will allow remote testimony by teleconference so that tourists who are attacked during visits need not return to Tobago in order to testify against attackers. More (Trinidad and Tobago Express 05.02.2006).

    Mandatory health checkups for judges? "New laws will be introduced in New South Wales that could force judges to undergo health checks...." More (ABC Online - AU 05.02.2006). Comment. As judges are pilots of the vessel known as the Common Law, it follows that their health needs to be monitored. Perhaps daily checkups are in order, including the giving of urine samples for drug testing at the discretion of the Juristic Health Czar.

    Attorney files ethics complaint against former supreme court justice. "A Huntsville lawyer [Dean Johnson] has filed a judicial ethics complaint claiming former Alabama Supreme Court Justice Gorman Houston has a conflict of interest by serving as an attorney for a law firm representing Exxon-Mobil in a case he once took part in as a judge...He said Houston is doing work for the firm after participating as a judge when the court reversed a $3.5 billion judgment against Exxon-Mobil in a dispute with the state over royalties...." More (TimesDaily.Com 05.01.2006).

    Those hidden perks, as in House Gym, Supreme Court Gym... There's a crisis of sorts concerning whether Members of Congress can be trusted to use the House Gym at night. "The gym is in Room 319 in the basement of the Rayburn House Office Building. Behind gray metal doors marked 'Authorized Personel Only' it has three basketball half-courts, a golf driving net, a workout room with weightlifting and cardiovascular machines, a sauna, whirlpool machines, a swimming pool and a spacious locker room." It costs a MOC $100 a year to belong. Rep. Neil Abercrombie, a Democrat from Hawaii, represents a district "five time zones west of Washington," and therefore "is often wide awake late at night, and some nights has an irresistible urge to lift weights." Alas, it closes at 6 p.m. It turns out that the gym has been closed at night at least for the last fifteen or so years as a result of a scandal in 1989 and 1990 involving allegations "that members of Congress had sex in the gym's nap rooms and took late-night skinny dips in its pool." The Hill has an interesting piece today on this new crisis, raised by Rep. Abercrombie. Comments. a) It's open only during normal work hours, which prompts one to suppose that no MOC ever uses the gym because presumably they're all working rather than working out. b) Perhaps Rep. Abercrombie should rely on Supreme Court "precedent" regarding night-time use -- read on...

    Tales from the Supreme Court Gym. a) "Shortly after taking her seat, [Justice Sandra Day] O'Connor established a morning exercise class in the Court gym for the women employees." More (SupremeCourtHistory.Org). b) "[John G. Roberts'] 13 months [as a law clerk] in the chambers of Justice Rehnquist spanned the period of the 1980 election and the dawn of the Reagan revolution in Washington. It was a heady time of relentless work, long walks on Capitol Hill discussing cases informally with the justice and sharp-elbowed basketball games in the Supreme Court gym, wryly referred to as the 'highest court in the land.'" More (N.Y. Times 07.31.2005). c) "In recent months, two network dramas about the Supreme Court were introduced with the usual hype and then promptly canceled. First Monday lasted a few months; The Court lasted only a few episodes...The chief justices -- played by James Garner and Pat Hingle -- were avuncular conservatives, principled but always aware that life is complicated, who lobbied the new justices by inviting them over for sherry or for workouts in the Supreme Court gym...." Jeffrey Rosen, Television Collides With the Supreme Court (The New Republic 08.05.2002). d) "[T]he evening [MOC's, take note] basketball games...take place in a gymnasium on the top floor of the building known as the 'highest court in the land.' Court staff and the clerks make up the regulars, but justices have also been known to play. Atwood experienced the legendary competitiveness of former University of Colorado all-American and 1938 National Football League rookie-of-the-year Justice Byron White. 'He played basketball like an all-American football player; he'd lower his shoulder and go right through you,' says Atwood. 'He did injure his ankle finally near the end of the year, so that slowed him down a little.' By the time McBride arrived at the Court for the 1988 term, White no longer played in the games, but he still went up to the gym to shoot hoops. 'There were times when the gym would be closed for Justice White's use and you could hear him in there running laps and shooting layups,' says McBride. 'He was a pretty hale guy, since he was 71 or 72 at the time.'" Sean Groom Clerking for the Supreme Court (Washington Lawyer March 2003).

    Bush picks Blazs for Fourth Circuit judgeship. "It took two tries, but Kevin Blazs is the newest County Court Judge in the Fourth Judicial Circuit. Blazs -- a partner in the firm Gobelman Love Gavin Blazs & Wasilenko -- was notified on Thursday afternoon personally by Gov. Jeb Bush...." More (Jacksonville Daily Record 05.01.2006). Comment. If you feel you were misled by our headline, don't blame us. It's accurate.

    Today is not Commie Day or Law Day - it's May-Basket Day. The Commies had their May Day & some clever Americans, figuring we could show the Commies we are better, responded with Law Day. It is neither Commie Day nor Law Day here at the International Headquarters of BurtLaw's The Daily Judge. It is the same day it was when my classmates and I walked out the front door of the beloved Southside Elementary School (since demolished to put up a motel!) on May 1 and danced around the May Pole. It is the same day it was when a pal and I stole some tulips from Adeline Strand's garden on the way to school so we could give the teacher a May-Basket full of flowers. It is, my friends, and always will be, May-Basket Day.

   May Day. "At nine o'clock on the morning of the first of May, 1919, a young man spoke to the room clerk at the Biltmore Hotel, asking if Mr. Philip Dean were registered there, and if so, could he be connected with Mr. Dean's rooms. The inquirer was dressed in a well-cut, shabby suit. He was small, slender, and darkly handsome; his eyes were framed above with unusually long eyelashes and below with the blue semicircle of ill health, this latter effect heightened by an unnatural glow which colored his face like a low, incessant fever...." From "May Day," in Tales of the Jazz Age (1922), by F. Scott Fitzgerald.

    D. H. Lawrence & Judge John Ford. In 1922 Judge John Ford wrote D. H. Lawrence complaining about Lawrence's Women in Love, which Ford's daughter had checked out of the library. Lawrence responded: "Let Judge Ford confine his judgements to court of law, and not try to perch in seats that are too high for him. Women in Love was not written for the Ford family any more than apples are apples for their sake. Father and mother and daughter should all leave the tree of knowledge alone. The judge won't succeed in chopping it down....Many better men have tried and failed."

    Ghost of Bruno Hauptman haunts courthouse. "Some who work in the Hunterdon County Courthouse in Flemington [N.J.] say the ghost of Bruno Hauptmann is flipping on the courthouse's lights each night. The peculiar happenings have been going on since renovations started months ago to make the courthouse look like it did in 1935, when Hauptmann was convicted there of kidnapping and killing the toddler son of Charles Lindbergh...." More (6ANC 05.01.2006).

    DA to probe whether prosecutor running for judgeship violated rules. The San Mateo Daily Journal is reporting that the District Attorney will investigate whether "a 21-year veteran prosecutor broke local voting rules by illegally campaigning at the courthouse in the county’s only contested judge race. Deputy district attorneys reported receiving phone calls from Susan Etezadi while working. Prosecutors and employees in the clerk’s office also reported receiving mailers with contribution envelopes via the county’s interdepartmental mail, said defense attorney Jonathan McDougall who works for the campaign of opponent Lisa Maguire...." More (05.01.2006). Comment. We've also long believed that government employees who run for office -- whether it be a judge running for another term or a prosecutor running for the U.S. Senate -- should be required to use vacation time for time spent away from the office campaigning. In other words, BurtLaw Rule #32 is: Don't campaign at the office, don't use government property in the campaign, don't use other government employees in the campaign, and don't get paid for time spent campaigning outside the office.

    Teen court rather than juvenile court? "Teen court, a program of The Mediation Center of Eastern Carolina, is an alternative to Juvenile Court for first-time offenders, ages 10 to 17, attending schools in Craven County and who have committed first-time minor misdemeanor offenses...." More (New Bern Sun Journal - NC 04.30.2006). Comment. The report says, "Offenders who successfully complete Teen Court avoid juvenile court and the stigma of a criminal record." But juvenile courts were established in the first place to avoid adult court and "the stigma of a criminal record." Perhaps we have lost sight of the original purpose of juvenile court, too readily "referring" juveniles for prosecution as adults. In any event, if creating a new less-penal alternative to what is the current practice requires calling it "teen court," I'm okay with it.

    There's judicial code and judicial code. Commenting on the "cracking" of Mr. Justice Peter Smith's embedded code in his ruling on the case involving The DaVinci Code, The Guardian states: "[C]racking the language used by some other judges in the piles of paper churned out daily by the legal system could prove much harder." More (04.29.2006). Earlier. Judge embedded a coded puzzle in 'DaVinci Code' ruling - When judges get 'creative' in opinions.

    Judges warn that smoking ban in courts puts justice at risk! The Dept. for Constitutional Affairs has proposed a smoking ban in UK courts, effective 08.01.2006. Judge Keith Cutler, who is "honorary secretary" to the Council of Circuit Judges, representing 600 Crown Court judges, has sent a letter to the Lord Chancellor "warning" that the ban may put justice at risk. The letter argues that many jurors "cannot manage a court day without the need for a smoke" and that denying them their smokes may affect their ability to concentrate and may prompt them to rush to judgment in order to get their smokes. Moreover, defendants convicted of crimes might claim their convictions resulted from smokers agreeing to verdicts so they could get their smokes. More (Times UK 04.29.2006). Comment. This is not a humorous news story from The Onion.

    Ye olde courthouse 'speed trap.' Well, not "speed trap" but "driving while suspended trap." The Toronto Star reports that "Durham Regional Police have discovered the perfect place to spot suspended and prohibited drivers - the local courthouse parking lot. A recent two-week sting targeting illegal drivers nabbed several as they walked out of court after losing their driving permits, got in their cars and began to drive home." More (04.29.2006).

    Sitting judges endorse lawyer challenging fellow judge in election. "In an unusual move, three sitting judges and a retired Tehama County judge have endorsed challenger Ron McIver over Superior Court Judge John Garaventa for Department 3 judge...." More (Red Bluff Daily News - CA 04.29.2006). Comment. I don't know about CA, but in many states it is considered improper for sitting judges to take sides in contested judicial elections involving other judges.

    OMG! - Panic over horse meat possibly being served in judicial canteen! "The suspect meat, found during routine quality control, was sent for analysis. It was stated in the report that the meat belonged to single-hoof animals, such as horses, dogs or donkeys, but a demand for verification of the results revealed that the meat was in fact beef...." The canteen in question, in Ankara Judicial Court, serves 3000 people -- judges, prosecutors, etc. -- every day. More (Hürriyet 04.29.2006). Comment. Considering that, in Holmes' words, the typical daily fare of judges is "sawdust without butter," horse meat isn't so bad.

    Special tribunal to decide if twice-acquitted Miss. justice can return to bench. Mississippi Supreme Court Justice Oliver Diaz Jr. was indicted on federal bribery and tax evasion charges in 2003 and has been on either voluntary leave or suspended-with-pay status since then. Justice Diaz was acquitted in the bribery trial last year (two lower-court judges were also accused of taking bribes from a lawyer but the jury couldn't reach verdicts on most of the charges against the other judges and the lawyer). This week Diaz was acquitted on the tax evasion charges. (His ex-wife pleaded guilty to tax evasion but hasn't been sentenced yet). The Sun Herald reports that while "[n]ormally, the Supreme Court would have the final say on Judicial Performance Commission recommendations [on Diaz' reinstatement,]...because Diaz serves on that court, a special tribunal of seven judges from around the state" will decide his fate. More (04.29.2006).

    Latest relating to CT chief's manipulation of opinion release, etc. "Both the Connecticut Council on Freedom of Information and the Connecticut Chapter of the Society of Professional Journalists asked that the decision [in question, relating to public access to judicial records] be rescinded and the case reheard. They also called on the legislature to pass a bill that requires disclosure of all court docket information -- past, present and future and provide complete public access to all judicial proceedings, including trials and pretrial conferences and conventions of judges and meetings of the Superior Court's rules committee...The two groups also called on the legislature and Gov. M. Jodi Rell to support only judicial candidates who have pledged to support complete public access to judicial records and proceedings...." More (Boston Globe 04.29.2006). Earlier postings. CT Supreme Court mess: lawmakers to ask justices to testify - Latest on uproar over C.J.'s deferring opinion's release - Outgoing C.J. admits holding up decision to help colleague succeed him. And see, for our views on judicial open-ness and accountability, our 2000 essay, BurtLaw on Judicial Independence and Accountability.

    Sen. Specter asks if Court respects Congress. "Justices Anthony Kennedy and Clarence Thomas, in recent testimony before a House appropriations subcommittee, objected to a bill I have sponsored that mandates television coverage of the Supreme Court unless it is barred by the court on a case-by-case basis on the grounds that it would adversely affect the proceedings. The two justices insisted that Congress should mind its own business and respect the court's autonomy, just as the court has respected Congress' autonomy. But does the Supreme Court respect Congress?" More (Sacramento Bee 04.26.2006).

    Mn Bd. to investigate all seven supremes. "For what may be the first time in its 40-year history, the state Board on Judicial Standards has opened investigative files on all seven Minnesota Supreme Court justices, the result of a complaint that alleges that one or more of them may have had improper conversations with a legislator regarding Minnesota's marriage laws...." More (Star-Tribune 04.29.2006). Earlier. MN's he-said/she said controversy involving senator, justices.

    Quote of the Day. "Judges who do not read BurtLaw's The Daily Judge risk repeating the mistakes chronicled herein."

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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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