The Daily Judge
© 2006 Burton Randall Hanson
      Archives - 06.16.2006 - 06.30.2006
"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.

    When a court is not a 'court.' "The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners. In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949. More (Washington Post 06.29.2006). Comment. On 11.14.2001, the day after the Bush administration announced its plans, I posted, on my original law weblog, BurtLaw's Law and Everything Else, a strongly-worded opinion piece opposing these commissions. I have reprinted that piece today at my political opinion weblog, Sometimes Left, Always Right.

    The myth of the hands-off conservative judge. "The that despite all their fulminating about judicial activism, conservatives today firmly believe that courts must step in to oversee, correct, or invalidate the actions of government officials. They simply disagree with liberals on when to do it...For conservatives...judicial intervention is fine when it means slicing up labor, consumer, civil rights, and environmental regulations intended to curb the potential excesses of laissez-faire economic policy. It isn't fine when it means enforcing civil rights and civil liberties. Liberals take pretty much the opposite view...." Seth Rosenthal, Fair to Meddling -- The Myth of the Hands-Off Conservative Jurist (Slate 06.27.2006). Comment. In other words, the key question for them is this, "Whose ox is being gored?"

    A 'curious alignment of interests.' "There has been a curious alliance of interests in the Hungarian legal profession for many years now. Leading court officers and the lawyers together constitute a powerful lobby. This could hardly be prevented. But it is more surprising that this lobby has a decisive influence on the way laws are written. [T]here is what you might delicately call a consensus on how transparent the legal system should be. Judges who think they should be open to criticism are very much in a minority...." Zoltan Fleck, Hungarian legal scholar, who last week was prevented from voicing his criticisms at a national law conference. Fleck says, "Hungarian courts are reluctant to hear criticism, not just of their structure, but also of their rulings." More (HVG - Hungary 06.29.2006). Comment. As I like to say, Emerson knew what he was talking about when he wrote in his great journal, "[L]awyers...are a prudent race though not very fond of liberty." Ralph Waldo Emerson (Journal 04.1850). See, e.g., some of my entries relating to the Minnesota legal community's negative response to the U.S. Supreme Court's "judicial free-speech decision" in Republican Party of Minnesota v. White, 536 U.S. 765 (2002): SCOTUS declines review of USCA's case on judicial campaigns - MN. Supreme Court reversed again on free speech - Free speech is a 'bad idea'?

    Gov. Mitt Romney on what is a 'civil right.' "Gov. Mitt Romney...said Wednesday it's the job of voters -- not the courts or lawmakers -- to define what constitutes a civil right. 'Who's going to tell us what a civil right is and what's not? Well, the people will'...." More (Boston Globe 06.28.2006). Comment. Gov. Willard Mitt Romney (R. Mass.), b. 1947, has impressive academic credentials (B.A., Brigham Young; joint MBA-JD, Harvard Law), & somehow managed to get elected in a state some have filed away under the stereotypes of "liberal" & "Democrat." Also, he has going for him the fact that his brother was a classmate of mine at the law school. :-) But, like his father, former Republican Gov. Geo. Romney of Michigan (who knocked himself out of the Presidential sweepstakes by saying he had been "brainwashed" into supporting the Viet Nam War), he keeps stumbling over his own words and actions, as he did, for example, last year in twice making judicial appointments that proved embarrassing. Should the context in which he uttered the above unfortunate statement matter? I think not, and that's why I've omitted reference to it. Earlier. Romney rips judges - Gov. withdraws judicial nomination - Second judicial appointment embarrassment for Gov. in 2 weeks.

    Donkey goes to court. "[O]n Monday...NGO Makkal Mandram of Kancheepuram hired [a] donkey to demonstrate against the state revenue department for its delay in issuing land pattas (certificates) to Irulas (snake-catching tribe). A placard with the words 'district administration' was hung from its neck...[A] revenue department official took exception to the placard and filed a police complaint. The police arrested 30 protesters and confiscated items like the shamiana, mats, loudspeakers, amplifier sets and the donkey...When the police knocked on the door of Kancheepuram Judicial Magistrate I G Uthamaraj's residence on Monday to remand the 30 arrested, the magistrate did so but ordered that the donkey be kept under police custody and produced in court on Tuesday." More (Times of India 06.28.2006). Comment. The Times speculates that the donkey's appearance in court was "perhaps a judicial first." Maybe it's a "first" in India. As Will Rogers might have said, it's an everyday occurrence in some places.

    Judicial delay: 25 million cases pending in courts. "India's subordinate courts have a backlog of over 22 million cases while the 21 high courts and the Supreme Court have 3.5 million and 32,000 pending cases respectively, official data released Wednesday showed...." More (Daily India 06.28.2006). Comment. We shouldn't look down our noses at our common law brothers and sisters in India until we get our own judicial house in order. Our own society is over-litigated, our legal representatives charge too much, and our courts take too long to give people the simple justice to which they're entitled.

    Lord Chief Justice: media inaccuracies are eroding public trust in judiciary. "Media claims that judges are imposing overly lenient prison terms are incorrect and undermine public confidence in the criminal justice system, the most senior judge in England and Wales has warned. After several weeks during which the press has scrutinised sentencing, the lord chief justice, Lord Phillips of Worth Matravers, said the body that sets down guidelines for the courts had not been 'portrayed fairly in some sections.'" More (Guardian UK 06.27.2006). Comment. Justice Frankfurter said once (while vacationing in England), "There are, as you well know, periodic newspaper crime waves in the United States. Popular feeling is excited to fluctuate between being sentimental and being harsh." Our papers have long experience in creating "newspaper crime waves" and in manipulating popular feeling. Of late, some newspapers have been doing their worst to "excite" popular feeling "to fluctuate between being sentimental and being harsh" with respect to judges. The same now is happening in England. By the way, while it's low for newspaper publishers and local TV news shows to sensationalize judicial misdeeds, it's lower for a President (Bush II) or Prime Minister (Blair) or other politician to use that old bugaboo, judicial activism, to stir up his base. Stirring up one's base -- maybe even having a base -- is inherently base. Perhaps that's why good people generally don't do well at politics or any of the many other things in our contemporary consumer culture that have become just a subcategory of "sales/marketing."

    Mending judicial fences. "Fuller Kimbrell, one of the last survivors of the 'Big Jim' Folsom era, has been known to observe that 'Alabama politics is a dirty business, if it’s done right.' Well, in the recent Republican primary contests for seats on the Alabama Supreme Court, it was done right. Associate Justice Tom Parker and his handpicked slate challenged all the GOP incumbents, including Chief Justice Drayton Nabers, whom Parker took on himself. And now, after being beaten badly, Parker has to return to the bench and patch things up with his colleagues...." More (Anniston Star - Editorial 06.27.2006).

    Annals of specialized courts: fishing courts. "The government will soon realize its plan to establish five fishery courts in North Jakarta, Medan (North Sumatra), Pontianak (West Kalimantan), Bitung (North Sumatra) and Tual (Maluku), an official said Monday. 'Hopefully by October the courts will start operating so as to settle many illegal fishing cases,' Ardius Zainuddin, director general of marine resources supervision and control, said in Padang...." More (Jakarta Post 06.27.2006). Comment. We generally oppose specialty courts. See, our comments at Annals of specialized courts - rape courts?

    MN Board of Judicial Standards says supreme court did no wrong. "The Minnesota Board on Judicial Standards...ended its investigation last Thursday, finding no evidence that any of the seven justices talked about the marriage law with Senate Majority Leader Dean Johnson...'There is no evidence that any promises, commitments or predictions were made to anyone by any justice of the Minnesota Supreme Court concerning how any court might rule on any issue relating to the Defense of Marriage Act or any of the issues raised in Sen. Johnson's remarks,' said David Paull, the board's executive secretary...." More (Duluth News Tribune 06.27.2006). Comment. I guess no one should be surprised at the Board's decision. It would be nice if a transcript of the testimony were available to the public, but I'm assuming that won't happen. In my opinion, the proceedings ought to have been public. At a bare minimum, a transcript ought to be made public. If one is to form an opinion of the adequacy of an applicant's affidavit in support of a search warrant, one needs to read the affidavit, not a summary of it. Similarly, one can't independently assess the Board's decision without having full access to the record of the examination of the various witnesses under oath. It's always best to let the sun shine in, the sun being the "best disinfectant" in a democracy.

    Judge quashes legislature's subpoena of former chief. "A judge today stopped lawmakers from forcing former Supreme Court Justice William J. Sullivan to testify at a hearing into why he delayed the release of a court ruling to help a fellow justice...Superior Court Judge Dennis Eveleigh, who heard arguments on Monday, also issued a temporary injunction barring legislators from making further attempts to require Sullivan to testify...." More (Harftford Courant 06.26.2006). Earlier. Legislators subpoena former chief justice and embedded links. Comment. One judge protects another. We haven't heard the end of this.

    Judge finds biking relaxing. "When attorney John Surbeck was appointed to finish out a term as Allen County Superior Court judge in 1988, he also came into a new hobby shortly after he donned judicial robes. Now an avid bicyclist, Surbeck, 60, finds the exercise helps him relax and gives him a place away from the pressures of high-profile cases in the courtroom...[H]is riding buddies...include a couple of lawyers, doctors and a substance abuse therapist...His riding group most often rides on the weekends. Last weekend they covered 40 miles on Saturday and about 20 miles on Sunday, he said. Occasionally the trips are overnight tours, which his wife allows...." More (Fort Wayne Journal-Gazette 06.25.2006). Cf., Judge dies suddenly while biking.

    Justice Holmes rides a bike. "In [the summer of] 1895 [at Beverly Farms, MA] he took his first lesson on a bicycle (this was before the days of motors) and in 1897 he had a bicycle of his own, emulating his friend Sir Frederick Pollock, who was an inveterate bicyclist...." From Oliver Wendell Holmes: A Memorial, 298 Mass. 575 (1937). Comment. Many Holmes aficionados believe that Holmes, who was good at everything he did, was the inventor of the "front wheelie," a trick beloved by bicycle enthusiasts everywhere. As good as Holmes was at biking, he didn't compare with the rotund but amazingly athletic Chief Justice William Howard Taft, who during one summer court recess in Hollywood acted as stunt-double doing the difficult "bike flip" for the legendary film actor, Roscoe "Fatty" Arbuckle (upper right). Taft (left), a "scratch golfer," also was a better golfer than Holmes, but Holmes typically won their matches, thanks to the cut-throat gamesmanship of his ambitious favor-currying caddie, Professor (later Justice) Felix Frankfurter, who would clear his throat when Taft was in mid-swing, engage in creative scorecard-keeping, ridicule Taft's golf duds, kick Taft's ball into gopher holes when Holmes distracted him with an off-color story about Lady Claire Castledown, etc. Curiously, while rotund men like Taft are often light on their feet (think Jackie Gleason), Taft was not as good a tap dancer as Holmes (right). See, BurtLaw's Justice Holmes.

    Highest paid judges will take home $425,000! "The nation's highest-paid judge will take home more than $425,000 a year after federal judges and magistrates won big pay rises. The pay hikes mean High Court Chief Justice Murray Gleeson now has a base income of $398,930 a year, an increase of $16,820 or 4.4 per cent. Including his newly increased residential allowance, his total income hits $425,580. That allowance, which has risen from $25,000 to $26,650, is paid to all seven High Court judges because Canberra is not considered to be their place of residence...." More (The Australian 06.23.2006). Comment. We're talking Aussie dollars.

    Progress on sale of old courthouse. "The jury is still out on when the first movie will be screened at the old [Ipswich, MA] courthouse, but there has been some progress. Entertainment Management Corp...has agreed to pay $300,000 for the building that once also housed town offices, and...plans to transform it into a theater, bookstore and coffeehouse...." More (Salem News 06.26.2006). Comments. Ipswich, MA is one of my favorite spots in New England, and I used to walk around town (and drive by writer John Updike's house) back in the late 1960's whenever I visited there, which typically was in connection with a weekday trip to Crane's Beach, one of my favorite beaches in the world, where I loved taking long, long walks on the same "white sands...lovely as the opal flash of fairy walls" that Justice Holmes spoke of in 1902 in an address at a memorial ceremony in Ipswich. (See, The Occasional Speeches of Justice Oliver Wendell Holmes (Mark DeWolfe Howe ed., 1962). I thought once of opening a law practice there. Last time I was there was in September 1995 when I drove my daughter to Harvard College for her third year; we took a drive to Ipswich together and visited the deserted beach.

    Judge, D.A., and clerk of court are blaming each other over escape. "A Luzerne County judge, the district attorney and clerk of courts are blaming one another for failing to send the case file on Hugo Selenski’s prison escape to Superior Court. District Attorney David Lupas is challenging a Feb. 15 ruling by Judge Peter Paul Olszewski Jr. that dismissed charges against the accused murderer, stemming from his daring October 2003 escape from Luzerne County Correctional Facility...." More (Scranton Times-Tribune 06.25.2006). Comment. It's always amusing to outsiders when insiders get in the doo together and each tries to blame the others for the mess.

    Female judges accuse colleague in rape case. "The Internet news site News First Class published on Sunday a letter reportedly sent by two of the three Nazareth District Court judges who signed a controversial ruling handed down in April in the case of a girl who was raped by her step-father for 10 years, until she reached the age of 18. The judges, Gabriell (De-Leeuw) Levy and Nehama Monitz accused the presiding judge, Aharon Aminoff, of having misled them by promising to omit a paragraph that has triggered vociferous criticism over the past few days. The paragraph included the suggestion that the girl may have 'enjoyed the defendant's actions.'" More (Jersusalem Post 06.26.2006).

    Chief Justice as Dad. "He takes the children to swimming lessons. He tries to keep 5-year-old Jack from using 6-year-old Josie's violin as a pretend weapon. At the end of the day, he helps put them to bed. In between, he presides over the Supreme Court. John Roberts is the first chief justice of the United States in at least a century to be raising small children...." More (USA Today 06.25.2006).

    Open-mike night at the judges' cafe. "Grasping both the silliness and tragedy of the U.S. Supreme Court's ruling last week about clean water in Rapanos vs. United States requires some imagination: Imagine you have nine family members and all are home for a holiday. The old washing machine springs a leak. Four family members try to find the leak and patch it up. Four other family members stand around and complain that it wasn't a good washing machine when you bought it in 1972 and that it wasn't fixed properly in 1977. The ninth member of the family can't make up his mind whether he is going to whine or help...The Supreme Court dealt with this relatively modest issue of regulatory jurisdiction Tuesday by issuing five opinions totaling 104 pages. It seemed more like open-mike night at the judges' café than a Supreme Court ruling...." More (Baltimore Sun - op/ed piece by Federico Cheever 06.26.2006).

    Judges get home security. "Of the $12 million provided last year by Congress nationally for judicial security, more than 10 percent came to Chicago, said Michael J. Prout, chief deputy U.S. marshal in Chicago. 'Almost all' of Chicago's 65 federal judges have said they want a home security system, and they are being installed now. Systems have been offered across the country to 2,200 judges, Prout said...." More (Chicago Tribune 06.25.2006). Comment. One has to wonder if this expenditure would pass muster using the University of Chicago Law School's favored cost-benefit analysis for use of taxpayer money. Methinks federal judges are paid enough to pay for their own home-security systems.

    Does state judicial council have authority to require judges to take courses? "An inconclusive legal opinion released Thursday by the California Judges Association will probably disappoint members angry over a controversial proposal that would force judges back to the classroom. Attorneys for Munger, Tolles & Olson, hired by the CJA, said in a 21-page memo that the Judicial Council appears to have the administrative authority to require judges to complete 30 hours of continuing education coursework every three years...." More (N.Y. L. J. via Law.Com 06.24.2006). Comment. Mandatory continuing education = window dressing.

    Cold case files. "Fragile, handwritten records dating from the 1830s that offer a glimpse into the past were found this week in a cranny at the old Mercer County criminal courthouse. 'It just gives you goose bumps,' said Debbie D'Amico, Superior Court records manager, about the find. A lot of the old records from the Mercer County courts are missing, she said, so this will fill in some gaps...." More (Trenton Times 06.24.2006).

    Judicial officer arrested for bribe-taking, forgery. "Police in Vietnam’s southern Tay Ninh province have arrested a judicial official on charges of taking bribes to make forged marriage certificates between Vietnamese women and foreign men. Luu Thi Ngoc Lien, 35, of the Tay Ninh Judiciary Department, will remain in custody for four months and the police have also arrested two others, Tran Hong Lac, 32, and Tran Thi Lan, 41, brokers for a company that arranged marriages between Vietnamese and foreigners, for giving bribes...." More (Thanh Nien Daily 06.24.2006).

    Female Afghan judges studying in U.S. "Trust in the Afghan legal system is weak, according to a female Afghan judge speaking at a June 22 State Department roundtable discussion on women in Afghanistan’s justice system. 'People who have been in place in the legal system in Afghanistan need to get trained so they can at least learn about the legal system,' the judge said. 'Otherwise there can be no trust.'" More (Washington File 06.24.2006). Comment. Interesting piece. Consider this:

[M]ost courts are not located in separate buildings and share space with other agencies. The judges often do not have desks so they carry their folders with them wherever they go. There are no women’s bathrooms in these buildings so the judges must wait until there are no men present to use the facilities. In crowded courtrooms, judges waiting to hear their cases often find themselves seated next to defendants. The hallways are always dark, they said, because the country has limited electricity. 'The hallways are so dark I cannot see the people coming near me,' one judge said.

    Judicial 'summit.' "The presidents of the Supreme courts of Justice signed the Code of Ethics of Latin American Justice, as part of the process to democratically bolster the Judicial Branch and which includes legal duties and the most indicative conducts for the social and moral life of judges. The document was signed to conclude 13th Latin American Judicial Summit yesterday [in Santo Domingo]...." More (Dominican Today 06.23.2006).

    Judges coming under scrutiny. "Judges must report their incomes, cars, apartments and other property annually to the courts they serve if a bill approved Thursday by the Supreme Arbitration Court becomes law...The measure would apply European standards to the Russian judiciary in an effort to combat corruption, said Anton Ivanov, the court's chairman...Ivanov conceded that judges could skirt eyebrow-raising disclosures by registering those assets with spouses or other family members. But, he said, they would run the risk of losing their money in a divorce...." More (Moscow Times 06.23.2006).

    String of courthouse bomb threats. More (Barre Montpelier Times-Argus 06.23.2006). Comment. We could post a news story like this from somewhere around the country nearly every day of the week. We posit the counter-intuitive hypothesis that the more we try to make courthouses "secure," the more likely it is that certain "types" will commit acts like this. And the more we go to great lengths to try to keep weapons out of courthouses, the more likely it is that those interested in attacking judges will move the venue of their attack elsewhere -- e.g., right outside the courthouse (perhaps directed at courthouse personnel evacuating the courthouse in response to a called-in bomb threat), at the judge's home, etc. Or, as in the recent shooting of the judge in Reno, the attacker will simply position himself outside the courthouse and fire at the judge when he stands by the window. Read on...

    Suspect in shooting judge is arrested 'South of the border, down....' "A wealthy former pawn shop owner, accused of killing his wife and shooting the judge handling their divorce, was back on U.S. soil Friday after 11 days on the lam, authorities said. Darren Mack, 45, surrendered at a hotel in the Pacific coast resort city of Puerto Vallarta, Mexico, on Thursday night. Mack, who was not armed, was taken into custody without incident, authorities said...." More (CNN 06.23.2006). Earlier. Dahlia Lithwick on the shooting of the Reno family court judge - Sniper shoots judge standing by window in courthouse.

    Legislators subpoena former chief justice. "Former Supreme Court Chief Justice William J. Sullivan was subpoenaed today to testify before the legislature's Judiciary Committee hearing next Tuesday on his machinations to withhold release of a controversial high court ruling to aid the prospects of a colleague to succeed him as chief justice. Judiciary Committee co-chairmen Sen. Andrew McDonald and Rep. Michael Lawlor, said they worked behind the scenes for weeks through intermediaries to convince Sullivan to testify voluntarily, before resorting to their extraordinary power to subpoena such a high-ranking judge...." More (Hartford Courant 06.23.2006). Earlier entries. More fallout in CT court scandal; 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. Update. Sullivan moves to quash subpoena (Boston Globe 06.24.2006).

    Muslims turn to the courts. "When Amira Attia, a 33-year-old pharmaceuticals worker, and Ashraf Amin, a 35-year-old hospital research assistant, got married in 2002, they pledged...that if the marriage went sour, Attia would get a $50,000 delayed dowry under an Islamic law concept called a mahr. Two and a half years later, the couple split up, and Attia went to court seeking payment of the mahr. But in a ruling made public late today, a court in Essex County declined to enforce the Islamic dowry. It was the latest case in a growing trend in which American Muslims are turning to the courts to intervene in religious disputes which previously would have been resolved by community elders or spiritual leaders...." More (Cherry Hills Courier-Post 06.21.2006).

    Bakers turn to the courts. "Industry sources said the National Bakers Association (NBA) is seeking legal advice before mounting a court challenge that might signal the breakdown in price negotiations between bakeries and the state. Members of the NBA hiked the price of bread by at least 52 percent this month, citing exponential costs of flour and diesel among other things.
A standard loaf of bread is now selling for $130 000 against the gazetted price of $85 000. President Robert Mugabe’s populist government, fighting its worst economic crisis, has responded by issuing tickets worth millions of dollars to non-compliant retailers, seizing bread and arresting their merchandisers...." More (Financial Express - Zimbabwe 06.22.2006). Comment. Are the courts in Zimbabwe still "independent" of Mugabe? I personally don't know the answer but a 05.31.2006 news report at the site of the Institute for War and Peace Reporting, says, in part:

Judges in Zimbabwe, fearing for their lives and of infringement of their few remaining liberties by the state, are choosing more and more to play ball with an increasingly oppressive government, according to Zimbabwean lawyers. As the result of an onslaught of intimidation, combined with unashamed bribery by the government through the allocation to judges of stolen farms, Zimbabwe now has a corrupt judiciary, pliant to the will of President Robert Mugabe. Judges who have refused to toe the line have been arrested, attacked and toppled. Many have gone into exile.

    Judge dies suddenly while biking. "The Roaring Fork Valley legal community Wednesday mourned the death of T. Peter Craven, 65, the Ninth Judicial District chief judge. Craven died Tuesday evening in Aspen of an apparent heart attack during a bicycle ride through that city. Craven had been presiding over a court case there, and as he often did, he brought his mountain bike to work to ride off the stress after court, said a friend...." The Colorado chief justice is quoted as describing him as "one of our best and brightest." More (Grand Junction Sentinel 06.22.2006).

    Sen. Specter to Justices: 'Let's do lunch.' "Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, is hosting a series of one-on-one lunches with members of the Supreme Court. The holding his tête-à-têtes in the Senate dining room with strict constructionists and loose constructionists alike...Specter was spotted Thursday at a table in a corner of the dinning room with conservative Justice Clarence Thomas, chatting long after the server had dropped off the check. As the host, Specter naturally reached over to take care of the bill at the end of the meal...." More (The Hill 06.21.2006). Comment. I think there's truth to the old saying, "There's no such thing as a free lunch." The members of the Supreme Court have life tenure and presumably do not put their jobs at risk by having lunch with Senator Specter. But judges without tenure ought to think twice about having lunch with lawmakers. See, Latest on investigation into justice's questionable lunch with lawmaker (and embedded links).

    Judges on p.r. tour. "Minnesota Supreme Court Chief Justice Russell Anderson and the Minnesota Judicial Council visit Brainerd June 21 to highlight court innovations, recognize community leaders and hear from citizens about the judiciary. The 25-member council was formed in 2005 and includes representatives from appellate and trial courts and administrative offices. Its purpose is to govern the judicial branch through statewide administrative policies...." More (Brainerd Dispatch 06.20.2006). Comment. In Minnesota the chief justice, in addition to taking the entire court "on the road" to state high schools twice a year, conducts what the court's web site once referred to as "the Chief Justice’s [annual] 'Court Innovations Tour.'" I love the use of the word "tour," with all it connotes, in this context. For those who are interested, I expressed my critical opinions on this in some detail in a 2000 essay titled BurtLaw on Judicial Independence and Accountability. BTW, it would appear that when a number of judges tag along on such a tour, that can add up to a large total number of days (or judicial hours) on the bench missed, a not inconsiderable indirect expense (in addition to the direct expense of the tour) to taxpayers and litigants at a time when the judiciary claims it needs more judges, more appropriations, etc. Earlier. Chief Justice Anderson and the judicial council are the subject of a recent complaint with the Campaign Finance and Public Disclosure Board for a taxpayer-funded two-day "retreat" that the complainant, a Minneapolis attorney, Greg Wersal, alleges was, in effect, "a campaign school." More (St. Paul Pioneer-Press 05.31.2006). For details, see, Did MN judges use public funds for lessons on how to get re-elected?  In a separate matter, in April Wersal and another attorney filed separate but related ethics complaints against the entire supreme court with the Board on Judicial Standards and the Lawyers Professional Responsibility Board. See, Updates on MN's he-said/she said controversy involving senator, justices.

    Quote of the Day. "No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her. Yet that is exactly what the Court now has -- four clerks in each chamber to handle the lightest caseload in modern history. The justices -- who, unlike lower-court judges, don’t have to hear any case they don’t wish to -- have cut their number of full decisions by more than half, from over 160 in 1945 to about 80 today. During the same period they have quadrupled their retinue of clerks...." From Stuart Taylor and Benjamin Wittes, Of Clerks and Perks - Why Supreme Court justices have more free time than ever -- and why it should be taken away (The Atlantic July 2006). Further reading. Supreme Court law clerks under attack.

    Who's late to court more, lawyers or judges? "An article in the Auckland District Law Society newsletter, Law News, is being roundly criticised in legal circles. The newsletter carries an article by District Court executive judge, Jan Doogue; complaining that lawyers are often absent from court when their client's case is called...[T]wo lawyers, Stuart Grieve QC and Barry Hart, say it is often the judges who are late to begin the court's proceedings." More (Newswire.Co.NZ 06.21.2006).

    The Making of a Judge: The David Hasselhoff Story. "David Hasselhoff pointed to pal Simon Cowell's persuasiveness as the reason he decided to sign on as a judge...'He called me up and said, Would you do this? And I said, I don't want to be a judge! And he said, Come on, it's fun! You're funny!' And, shrugged Hasselhoff, 'Because it's Simon, I did it.'" More (9News.Com 06.20.2006). Comment. One should compare and contrast Judge Hasselhoff's recollection of his appointment as judge to Felix Frankfurter's recollection of FDR's 01.05.1939 phone call to him at his home at 192 Brattle Street in Cambridge (where he was dressed only in his BVD's) telling him he was appointing him to SCOTUS. See, Harlan B. Phillips, Felix Frankfurter Reminisces (1960); A Place for Poppa (Time 01.16.1939).

    Annals of courthouse fashion. "Dwight Oliver showed up for a court hearing in Seminole County, Fla., wearing loose pants and tennis shoes without laces. While waiting for his case to be called, Mr. Oliver tried to flee. He lost his pants as he ran down the steps of the courthouse. He was later found in gray boxer shorts in a library three blocks from the courthouse and was arrested after a scuffle with police officers...." From Low-slung, baggy pants often trip up thieves (Pittsburgh Post-Gazette 06.20.2006).

    Gov. proposes scaling back large judicial pay hike approved by legislature. The Guv is Mitt Romney, a likely GOP Presidential candidate; the state is Massachusetts. More (Boston Globe 06.20.2006). Earlier. Legislators vote huge pay raises for judges.

    Junior minister, under pressure, withdraws criticism of judges. "A junior minister was forced to apologise to the lord chancellor last night for criticising judges over sentencing policy. Constitutional affairs minister Vera Baird [wrote in apology]...'I should not have made those comments on the case following your statement outlining the clear position of the government...I withdraw them and fully support the government's position, both on this case and on the broader issues of sentencing.'" More (Politics.Co.UK 06.20.2006). Earlier. Judges consider speaking out.

    Chief Justice criticizes 'lazy, ignorant judges.' The "Chief Justice" in this case is the Chief Justice of Nigeria. More (Legal Brief 06.20.2006).

    Married at fifteen? "I was taken by the headline...datelined Denver: 'A 15-year-old girl can enter into a common-law marriage in Colorado, and younger girls and boys possibly can, too, a state appeals court ruled Thursday'...[P]erhaps we can all look foreward to the next logical thing, which would be for them to lower the voting age to fifteen. Maybe then the people of Colorado will finally elect a cuter neater set of appellate court judges and sanity will be restored." Merrill Markoe, Married at Fifteen (Huffington Post via Yahoo 06.18.2006). Comment. Merrill, the diamonds you wear were formed at least 990,000,000 years ago at a depth of 85 to 120 miles beneath the Earth's surface where temperatures vary from 900 to 1300 degrees Centigrade and were brought to the surface by volcanic eruptions. More. Unlike diamonds, our great common law has been developing for only about a thousand years, not 990,000,000 years. See, O.W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897). Just as only a small number, relatively speaking, of diamonds are "flawless" in terms of cut, carat, color and clarity, only a small number, relatively speaking, of the "gems" that judges spew out volcanically -- gems we call "judicial opinions" -- are flawless. Who knows, maybe a "flawed" decision like this Colorado one, if it is flawed (I haven't read it), will serve a useful purpose, like calling attention to the inequities of the laws regulating marriage, laws that permit nincompoops and criminals to get married but not homosexuals. See, my 2004 campaign position paper, Marriage and the Law.

    Want U.S. to be Muslim nation with Islamic law, Sharia courts? "[Imam Zaid Shakir] said he still hoped that one day the United States would be a Muslim country ruled by Islamic law, 'not by violent means, but by persuasion.' 'Every Muslim who is honest would say, I would like to see America become a Muslim country,' he said. 'I think it would help people, and if I didn't believe that, I wouldn't be a Muslim. Because Islam helped me as a person, and it's helped a lot of people in my community.'" Laurie Goodstein, U.S. Muslim Clerics Seek a Modern Middle Ground (N.Y. Times 06.18.2006).

Don't like the sound of that? How about this:

The Constitution of the United a marvelous document for self-government by the Christian people. But the minute you turn the document into the hands of non-Christian people and atheistic people they can use it to destroy the very foundation of our society.

Rev. Pat Robertson, a graduate of Yale Law School (The 700 Club 12.30.1981). My views? Click here.

    Judicial privileges. "With a baseball cap, sunglasses and skin tanned the color of Worcestershire sauce, 34th Judicial District Judge Jacques Sanborn plopped into a seaside chair at the Tops'l Beach & Racquet Resort [in Sandestin, FLA] and admired the multi-hued vista over the Gulf of Mexico. Simultaneously, on the bay side of the popular vacation area, about 80 of his colleagues boned up on recent developments in traffic law and death cases. They were engrossed in continuing legal education -- 'CLE,' in the shorthand of the legal community, and the ostensible purpose of Sanborn's visit to the Panhandle. He was there to attend what's called 'Summer School for Judges,' the biggest, best-attended event on Louisiana's CLE calendar...Asked whether he was playing hooky, Sanborn said he planned to attend bar association meetings later in the day and the following afternoon. But he grew testy when asked how many family members had accompanied him on his annual Sandestin trip...." More (New Orleans Times-Picayune 06.18.2006). Companion piece. Some judges are more judicious in spending. Comment. These investigative pieces, which deserve reading in full, are pretty shocking, at least to me. For my previously-stated in-depth views on these junkets by judges, see, Judicial 'Educational' Junkets.

    Legislators vote huge pay raises for judges. "Just before abandoning the State House for a 'hack holiday,' lawmakers slipped through controversial judicial pay hikes that will see most judges’ annual salaries soar to nearly $130,000 -- plus thousands in retro pay. The measure to boost judges’ pay by an average of more than $18,000 a year was passed Thursday afternoon as legislators cleared out of the State House for the often ridiculed long Bunker Hill Day weekend. Bunker Hill Day is a Suffolk County-only holiday that gives government workers a paid day off...." More (Boston Herald 06.18.2006).

    Judges consider speaking out. "Serving judges are considering breaking with tradition and speaking out for their profession following recent attacks on the judiciary. Judge Keith Cutler, secretary of the Council of Circuit Judges, said his members had been left 'dispirited' by the strong criticism levelled at some individuals for passing 'lenient' sentences. Perhaps it was time to review the position where only retired judges commented on issues, he said...." More (Guardian UK 06.18.2006). Comment. All around the world, cheap politicians are finding short-term political gain in attacking judges unfairly over alleged "leniency" in sentencing people convicted of crimes. Here's how an honest politician talks about crime and punishment:

I suppose one way of summarizing my views on "crime & punishment" is to say that I have long been out of sorts with the politicization of the subject, the resultant "get-tough" approach, the constant "upping of the ante," the creation of more and more federal crimes, the attempts to remove discretion in sentencing through the use of mandatory prison terms and mandatory-minimum terms, the almost-total abandonment of rehabilitation as a primary and direct goal, the tough-guy posturing by politicians, etc.

From the personally-written crime-and-punishment position paper of an "unsuccessful" (natch) Republican (are you kidding?) candidate for Congress in 2004.

    Chief Justice doesn't get mad -- he sues. "A politician might have written a righteous letter to the editor. A different judge may have ignored the matter altogether. But when Illinois Supreme Court Justice Bob Thomas objected to a series of critical newspaper columns, the pugnacious jurist and former Chicago Bear sued the people who published them. Now, elevated to chief justice and head of the state's judicial branch, Thomas is waging an unapologetic legal battle that raises some hot questions about political criticism and press freedom -- while also fueling an intramural drama of keen interest in the state's legal circles...." More (Chicago Tribune 06.18.2006). Earlier. Illinois judges opine on key issue in Chief Justice's defamation suit. Comment. For our postings on defamation suits filed by other judges and an explanation of our minority view that the cause of action for defamation ought to be abolished, see: Newspaper attacks $2 million libel verdict awarded trial judge - Court upholds dismissal of judge's libel suit against TV station - Illinois judges opine on judicial privilege - Spicing up the courts.

    Those beautiful new Chinese courtrooms. "I was allowed into the courthouse by mistake -- I drove through the gate with two colleagues, and nobody stopped us when we walked in -- and it's a gorgeous building with more magnificent courtrooms than I've ever seen in the U.S. But the courthouse was mostly empty, and finally we found out why: people aren't allowed in the People's Court. A group of indignant plainclothes police officers swarmed in and herded us outside. The courthouse is a perfect symbol of Mr. Hu's vision of China today: a dazzling building with lavish facilities, but empty in every sense...It's as if Mr. Hu thinks that building a modern judicial system is about high ceilings and padded seats rather than about laws and justice...." Nicholas Kristof, China's 'Justice' System (N.Y. Times 06.18.2006).

    Dahlia Lithwick on the shooting of the Reno family court judge. "This past Monday, a wealthy pawnshop owner in Reno, Nev., allegedly stabbed his estranged wife to death. He is also the prime suspect in the shooting that day of the family court judge overseeing their divorce. Judge Chuck Weller survived...[T]he man the police are looking for is Darren Mack. And he is my former client...." Dahlia Lithwick, The Fall of the Father of the Year (Washington Post 06.18.2006). Comment. Lithwick represented him when she was clerking for a small family law firm "many" years ago when he was going through his first divorce/custody battle. She offers a number of insights, including this:

The instant media diagnosis [Lithwick's link] is that the judge in this case had antagonized not only Darren Mack but loads of other parents and that he somehow had it coming to him. But the judge doesn't have to be an ogre to make someone suffer in family court. I don't know what drives a person to snap, but I do know this about family law: If you strongly self-identify as a parent, and Darren Mack did, then it can be uniquely brutalizing.

    Next on the judge's docket, the daily gay-bashing cases. "[T]he number of gay-hate crime cases being dealt with by the courts [in the UK] almost doubled in the past year, to 600 investigations. But...the prosecution rate represents a fraction of the true scale of the problem...." More (Independent UK 06.17.2006).

    Emergency legislation to address illness of top judge. "Emergency legislation to deal with illness among Scotland's top judges was rushed through Parliament in a single day yesterday. Justice Minister Cathy Jamieson said it was necessary, due to the illness of the Lord President, Lord Hamilton, who has been off work with stress since April...." More (Glasgow Daily Record 06.16.2006). Comment. The legislation will allow the Lord Justice Clerk to act in place of the Lord President in case of incapacity.

    News from 'The O.C.': Ex-judge who possessed child porn can't sub. "A former Orange County Superior Court judge who pleaded guilty to possessing child pornography was barred Thursday from receiving work from state courts. The action against Ronald C. Kline, 65, of Irvine is the most serious punishment the state Commission on Judicial Performance can give a former judge. If the commission had not taken action, Kline would have been eligible to sit in for judges on vacation or act as a referee handling complex litigation issues. More (L.A. Times 06.16.2006). Earlier. Ex-judge in plea deal for possessing child porn.

    When judges think their conduct is beyond criticism -- no, beyond discussion. "Article 127 of the Federal Constitution [of Malaysia] clearly spells out how the conduct of a judge can be discussed in Parliament. But does it ban such examination elsewhere? That debate was renewed this week when former Chief Justice Tun Mohd Eusoff Chin told the New Straits Times: 'If discussing a judge’s conduct in Parliament is limited by Article 127, what more discussion in the Press? You (the media) should be aware of this.' He said the restriction did not apply only to judges in office, but even after retirement...." This interesting piece, by Santha Oorjitham, reports that a number of legal experts disagree with the former chief, taking the position that the law says legislators may not talk about judges without a substantive motion but has no application to the press/public. More (New Straits Times 06.16.2006). Comment. Breathes there within the soul of some judges the notion that they are as gods and are beyond criticism. We obviously think otherwise. We've never met a judge, or anyone else, for that matter, who didn't have feet of clay.

    Death threats for reporting on decisions? "Two rural journalists in Pakistan's southern province of Sindh received death threats from feudal lords for reporting on the quasi-judicial decision of Jirga, a traditional feudal assembly, to hand over for marriage five girls, all minors, to a rival family in order to settle a murder dispute...." More (IFEX 06.16.2006). Comment. IFEX is an online journal linking to news reports, etc., around the world on the subject of free expression.

    Plum judicial assignment or hot potato? "The landmark fraud and conspiracy case against law firm Milberg Weiss Bershad & Schulman has run into unexpected delays because five federal judges in Los Angeles who had been assigned to it recused themselves from hearing the matter...It has also left legal experts wondering whether what should have been a plum judicial assignment has instead turned into a hot potato. 'This is a unique situation,' said Stephen Gillers, a New York University law professor. 'I've never heard of five judges taking themselves out.'" More (L.A. Times 06.16.2006).

    The Vista Gallery of Distinguished Judges. "The office got personal yesterday for courthouse employee Lisa Longacre, a clerk in the Civil Division. Her father, the late Judge Fiorenzo V. Lopardo, is one of three men inducted into the new Distinguished Judges Gallery at the Vista courthouse. His gently smiling face now looks down from a softly lit canvas toward passers-by...." More (San Diego Union Tribune 06.16.2006). Comment. We take it as a given that all judges are distinguished and we trust that eventually every judge who ever served at the Vista courthouse will be honored in this way, just as everyone who ever held an actor's union card, including Judge Judy, seems to be immortalized at the Hollywood Walk of Fame.

    Supreme Court law clerks under attack. "Poor Supreme Court law clerks. Most of them finish doing the coolest job they will ever have when they are 26 years old. All they will have to remember it by is a framed photo of some old white guy in a black dress, and a bajillion-dollar signing bonus from their law firms. They aren't allowed to canoodle with the press. And they spend months killing themselves to craft pitch-perfect, meticulously blue-booked decisions that they can never, ever claim as their own. ('Hey, know that Kennedy opinion in Lawrence? Dude. I totally wrote that!') And now, everybody is trying to take their jobs-of-a-lifetime away from them...." Emily Bazelon and Dahlia Lithwick, Defending the Supreme Court Law Clerk (Slate 06.13.2006), reviewing recent articles and books on the institution of law clerk: Richard Posner, The Courthouse Mice (The New Republic 06.12.2006)[(reviewing Artemus Ward and David L. Weiden, Sorcerers' Apprentices (2006), Todd C. Peppers, Courtiers of the Marble Palace (2006)], Stuart Taylor and Benjamin Wittes, Of Clerks and Perks (The Atlantic July 2006). Comment. Justice Wm. O. Douglas said to Eric Sevareid in a CBS-TV interview, "We don't need law clerks." When he urged his colleagues to conduct an experiment by not hiring any for a period of time, his suggestion met with silence.

    Board okays life-size Lincoln statue outside courthouse. "A life-size statue of Abraham Lincoln preparing to debate Shelbyville attorney Anthony Thornton outside the Shelby County Courthouse has the blessing of the Shelby County Board. The board approved placing the statue 'Let's Debate' on Wednesday morning after a presentation from Shelbyville attorney Whitney Hardy and Decatur artist John McClarey...." More (Herald-Review 06.15.2006). Comment. If they wanted to make it interesting, they could make it a "Talking Abe" statue, like those seen in some amusement parks, with Honest Abe reciting "The Ten Commandments." See, Court o.k.'s Bush's '10 Commandments' & their own, but not all.

    Judges demand equal treatment of gay judges. "The nation's judges have intervened in the debate over the legal recognition of gay marriage, calling for new pension rights for the partners of homosexual federal judges.
The Judicial Conference of Australia, which represents all judges, wants gay partners to inherit judicial pensions after the death of federal judges. This would give the surviving gay partners the same pension rights as widows and widowers...If the Judicial Conference's plan is accepted, it would bring the pension arrangements for gay federal judges into line with those of gay state judges...." More (The Australian 06.15.2006). Comment. We commend the Aussie judges on their courage. Related. How can men in long, flowing gowns uphold ban on gay marriage? See, also, Minnesota's he-said/she-said controversy: Is somebody necessarily lying?

    Ill. justices require attorneys to report any pro bono work they do. "The Supreme Court of Illinois ordered Wednesday that lawyers in this state must report how many hours they spend helping poor clients every year. They can report 'zero' and there will be no penalty, but the justices hope the reporting requirement will encourage lawyers to do more 'pro bono' work. They must also report how much money they donate to pro bono agencies...." More (Chicago Sun-Times 06.15.2006). Comment. In small-town America in the early 1950's -- i.e., when I was a kid -- and a new but unfurnished city-county hospital was built with the help of federal funds, my mom and a neighbor lady spearheaded a community fund-raising drive to completely furnish the hospital, collecting over $80,000 (in 1950 dollars), several hundred of those dollars in small bills that a bachelor farmer took out of a coffee can and gave to them while sitting at our dining room table (he got his picture in the paper, as did most donors). Sometimes, for many, many reasons (hint: one of the reasons is that "Ike" was President), I wish we could go "back to the '50's." Anyhow, while I know we "can't go home again," I believe we haven't even begun to imagine the various ways we could both reduce the cost of government and improve government if we were to tap, 1950's-style, into the latent altruistic spirit and hidden talent of millions of individual Americans, many of them young people filled with undirected energy and many of them older people rich in experience and time and wisdom and skill. And the same thought applies to tapping into the resources and ideas of the business world. Which brings me to the legal profession: too often we in the profession think of work pro bono publico as a) something that ought to be required of lawyers and b) something that ought to involve the sharing of our legal expertise (or the lack of it). As to a) my view is that if one is required to give something, one isn't giving anything. And as for the providing of free legal services, it may be the least imaginative and least-needed thing to give, especially if the thing given is simply the stirring up of more litigation in this overly-litigious society. Further reading. Pro's and con's of mandatory and voluntary reporting of pro bono service.

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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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