October 16th, 2018

Does Judicial Temperament Matter? (A Tale of Two Judges)

Supreme Court Justice Brett Kavanaugh during his confirmation hearing.

It was the worst of temperaments, and it was the worser of temperaments.

OK, not exactly the gold of Charles Dickens’ A Tale of Two Cities opener, but I needed something to compare the recent fiasco of Justice Brett Kanvanaugh‘s confirmation hearing with the removal of Queens Civil Court Judge Terrence O’Connor today.

Your familiarity with Kavanaugh’s angry, snarling, yelling screed will be assumed when members of Congress were calling for an investigation of potential sexual abuse.

Judge Terrence O’Connor, via NY Post

O’Connor was removed byNew York’s Court of Appeals today for his belligerence from the bench. You can read a summary of the details at this New York Law Journal article.

A sample of his conduct is this, from the opinion:

“Here, the record is replete with evidence supporting the Commission’s determination that, on numerous occasions, petitioner acted impatiently, raised his voice, and made demeaning and insulting remarks, often in open court. In so doing, he violated his obligation to treat those appearing before him with dignity and respect”

But the part that struck me most was this piece about the judiciary in general, about the need and duty to investigate potential misconduct, and why judicial temperament matters:

“Judges are also charged with promoting public confidence in the integrity of the judiciary through their own respect for the law. Public confidence in the integrity of the judiciary has long been recognized as essential to its vitality as well as our overall system of government. If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct.”

And that is the ultimate question for the public when it looks to the robe on the bench. Can we assume confidence and integrity with the rulings that come down?

 

September 28th, 2018

Saving the Supreme Court – 3 suggestions

Christine Blasey Ford, by Manuel Santelices. Used with permission.

Much will be written about the horror show yesterday before the Senate Judiciary Committee regarding the emotional testimony of Dr. Christine Blasey Ford and Judge Brett Kavanaugh. While there will be a million hot takes on its immediate significance, I’d prefer to look long term at the damage to the Court as an institution, and how to fix it.

Already suffering from deep politicization –made worse by the failure to the GOP to even give Judge Merrick Garland a hearing — it seems that the Court is doomed to have whatever shred of its integrity and dignity destroyed unless the Nation acts.

Over at Reason, however, Nick Gillespie sees no hope, and calls it “impossible.” In an article he wrote before the hearing, 3 Questions To Ask Yourself While Watching the Kavanaugh/Ford Hearings Today, he writes:

Is there any way to depoliticize the selection of Supreme Court justices? Almost certainly not, and it probably would be inadvisable in any case. The Supreme Court is part of the government after all, and the justices read the opinion polls and headlines too. They are selected by one politician (the president) and vetted by others (senators). Getting politics out of the process is impossible and ultimately, elections do indirectly change the makeup of the bench.

I disagree and offer my three ways to restore the integrity of the institution.

But before doing so, it’s important to note that when the Constitution was written, the average life expectancy was 36.  When you factor out all those that died in infancy and childhood, you obviously got a higher age, but it still would not have compared to today’s average age of 78.  Serving on the High Court was the culmination of a career.

Now, however, it is seen as a way to put someone on the Court for 30-40 years, thereby making each seat that much more potent. When you combine that with Congress’s continuing refusal to make tough decisions and instead pass its power to various agencies that make decisions without voter approval, you get a Court made even more powerful by virtue of the breadth of issues it must decide.

So how to deal with this? My three suggestions:

Term Limits. This is not a new idea and has been kicking around for awhile. If each jurist gets an 18 year term, with a new one picked every two years, you have regular turnover that reduces the impact of any one justice. After leaving the Court the judges can sit by designation in any District Court of Court of Appeals of their choosing, as retiring SCOTUS justices do now, and do so for life.

Pinch Hitters. As we saw with the Garland nomination, Senators have a motive to leave seats empty until a President comes along from their own party. This is, obviously, an insult to the Constitution. If the Democrats get a chance to get revenge and hold a seat open until the next election, they surely will do so. Additionally, there is sometimes an empty seat when judges must recuse themselves due to conflicts of interest, which was the subject of a satiric April Fool’s gag I wrote 10 years ago that had various justices recusing (or not) based on their participation in a fantasy baseball league. The gist of it was the recusal rules aren’t really all that clear and justices decide for themselves.

The solution? If there is a vacancy due to death, retirement or recusal, the Court pulls a name at random of a sitting Court of Appeals judge with 10+ years on the bench to sit by designation. This decreases the chance of Senators playing politics with the Court.

Advice and Consent. The Constitution says the President appoints the judges with the “advice and consent” of the Senate. But all too often, it seems, there is a request for consent without asking for that advice. The Judiciary Committee can agree, and make part of its rules, that it will provide to the President a list of 10 (or 20, or whatever) judges and that a hearing will be given for any one culled from that list. This, of course, requires actual cooperation among the Senators, who would choose the list members by a supermajority, thereby taking another step toward removing politics and eliminating extremist choices from either side. It would only be effective, obviously,  after the next election.

But you know what? This all presumes that the Senate actually wants the Court to be immune from politics. The more cynical view, and perhaps the more accurate one, is that Court nominations and fights are just another means of generating anger, which is then used for fundraising purposes.

So there are means out there to depoliticize the court. It can be done. The question is whether there is the will to do so.

 

September 25th, 2018

Judge Kavanaugh and the Art of Jury Selection

Judge Brett Kavanaugh, via Rolling Stone and Alex Brandon/AP/REX Shutterstock

As the Brett Kavanaugh confirmation spins wildly out of control with accusations of sexual assault, I’ve sat back and watched knowing that I’ve seen versions of this play before.

Those similar plays are not in politics, but in the course of jury selection.

This won’t take long.

Underlying virtually everything about the accusations is the concept of confirmation bias. Those who are hoping for a result, be it confirmation or rejection, will see the facts as they emerge with the spin that is most favorable to the conclusion that they want, in their hearts, to be reached.

It really isn’t that tough to see that, for varying reasons, a great many folks made up their minds before hearing all the evidence. And you know this because the witnesses haven’t even testified yet before the Senate Judiciary Committee.

The first example of this is Senate Majority Leader Mitch McConnell:

‘In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. We’re going to plow right through it and do our job.’

And the second is Senator Lindsey Graham, on the Judiciary Committee, demanding a vote ASAP:

 

These types of comments always accompany a ‘Don’t worry, we’ll be fair at the hearing’ attitude.

And this sounds like a version of Old West justice, “Don’t worry, he’ll get a fair trial before the hanging.”

Jury selection is a bit like that. A room fills with people who’ve lived lives that you know nothing about. And your job, in a very, very short time, is to see if you can root out those with biases — those who will, from the start of the trial simply be looking for information that will confirm their own biases about lawsuits of this type (whatever the type may be).

Hey, those biases may be great if they help you (as I always tell them)! But they can also be the death penalty of your case.

Every person that has uttered a conclusion on the Kavanaugh sexual assault allegations, regardless of which side they fall on, is utterly unsuited to be making a decision. Each and every one of them has reached a conclusion in advance of hearing all the evidence.

It’s true that, in this particular case, there are 100 jurors and 97% of them have already decided. But that isn’t the point of this post.

The point is about types of people and the way they form opinions and their ability to keep an open mind. A great many can’t do that, and those are the ones you need to find.

Sometimes, they expose themselves.

 

August 17th, 2018

Dear Aretha… (A Letter from a Vietnam Veteran)

While biography forms the backbone of any obituary, it is the stories about a life that serve to illuminate it and give meaning.

The letter to Aretha Franklin below was originally written and mailed a few years ago by Earle L. Jackson Sr. — a medic for the 173rd Airborne. I publish it today (in slightly modified form by its author), with the thought that, perhaps, the story will help to illuminate the biography of her life that has been written and celebrated elsewhere

For context, the Vietnam combat below is the Battle of Dak To (Hill 875), some of the bloodiest fighting of that long ago, godforsaken but not forgotten, conflict.

The letter below is from a soldier surrounded by death, to an artist that helped keep his spirit alive.

Today is one of those days I post something that has nothing whatsoever to do with law. I publish simply because its one of these things that should not remain hidden.

——————–

Dear Ms. Franklin,

 

Please accept my apology for this letter being some 50 plus years over due.  In 1967, I was a 22 year-old combat medic with the 173d Airborne Brigade, the most decorated army brigade in Vietnam.  We were dug-in in a river valley next to the Dak Po river in Kontum Province, Republic of South Vietnam.  The valley was named Dakto which was about 50 miles by dirt road from the closest mountain village, in the rain-soaked jungles of the Central Highlands.

 

At any time during the day or night, from the surrounding hills and mountains, the North Vietnamese Army would rain down mortars and rockets killing and wounding scores of paratroopers and destroying critical supplies.  Dakto was an extremely dangerous place in 1967, over a four month period we had hundreds of troopers killed and another thousand or so men wounded.

 

We could never let our guard down in Dakto because the Cambodian border was just a few miles away where some 20,000 highly trained, battle-tested North Vietnamese soldiers were camped, poised to attack our position in the valley at any given moment.  If we did come under a full attack and had to defend this valley, we would do so with a little better than 1,200 men.  I don’t mind admitting, and I’m not embarrassed to say that for this 22 year-old kid from Plainville, Connecticut it was a very stressful time and place to say the least.

 

Every day as dusk settled into night over the valley, you could hear the hum of generators being started that provided the only electricity for 50 miles around.  The intermittent firing of our artillery into the surrounding hills and valleys kept the enemy off balance during the night and less likely to attack us.

 

It’s Saturday night in death valley, the enemy is taking a break from shelling us and the boredom is almost thick enough to cut with a knife, when through the crisp Dakto night air, as the moon rose above the dark peaks of the mountains, there came the sweet sound of a familiar voice belting out the soulful words “R-E-S-P-E-C-T find out what it means to me.”

 

Man, I say to myself, I’m missing home too much, could that be my girl way out here in this dusty hell-hole?  I want to get closer to what I’m hearing so I follow the sound and it leads me to a rain poncho being used as a door to cover an under-ground bunker.

In the bunker there are a dozen grubby, tired and home-sick paratroopers and they were partying in this hole in the ground like there will be no tomorrow.  On one side of the bunker, several paratroopers are harmonizing the background lyrics, and rocking to the beat of the music on the other side of the bunker are several other soldiers making up their own choreographed steps as they move to the rhythm of the music.

 

It’s a scene now etched into my heart and mind that will never be erased. This will be the start of a night in my life that I will never forget and its not over yet.

 

About 2:00 am in the morning I needed some fresh air so I stepped outside of that bunker.  It wasn’t long before my ears caught another familiar sound coming from the next bunker about 30 yards down the line of bunkers.  “You make me feel like a natural woman”, man, oh man, there is another party going on in the next under-ground bunker too. In this bunker there are another dozen or so paratroopers partying in the candle light, dancing by themselves while singing along at the top of their lungs with our “Queen of Soul”,   Ms. Aretha Franklin.

 

There may be a war going on outside of the bunker, but inside the safety of this bunker there is a party going on and performing for us tonight is Ms. Aretha Franklin, no charge.  In 1967 we spent many nights in some of the world’s most dangerous places on earth and you Ms. Franklin were always right there with us, helping us get through another tough night or giving us comfort on a bad day.  Even today when I hear your music I smile, a warm feeling comes over me, and I get carried back to those spirit lifting parties in that infamous river valley of death in the Central Highlands of Vietnam, in 1967.

 

Ms. Franklin you may never know the depth of the love we old veterans have for you and your music, or the impact that they had on us combat troops dug-in in the remote mountains and jungles of South Vietnam.  When we were down and needed a double dose of love, you gave it to us in your music; through your music we were able to get through the hard times and terrifying moments that lay ahead of us.

 

Well Ms. Franklin, I’m 74 years old now and I don’t think that I will ever get the chance to hug you and thank you personally for all that you did for me and the tens of thousands of other soldiers some 50 plus years ago, but please consider this, when you settle down to sleep and close your eyes please let your last thoughts for the night be about the tens of thousands of veterans who love you beyond words of expression and cherish those brief, precious moments when you single-handedly stopped the war and took us all home . God Bless you for that, and rest easy Ms Franklin, long live the Queen of Soul….

 

Sincerely and with much love , Airborne All the Way

 

Earle L. Jackson Sr.
Florida
(This publication is with the permission of its veteran-author, who maintains a copyright over the letter, so please do not re-publish without permission from his friend and lawyer, Ken Laska).

 

July 5th, 2018

Are Democrats Losing the First Amendment?

If Democrats aren’t careful they risk surrendering a core American value to conservatives.

I don’t usually write about partisan politics, because if I did I would never stop, but in this case it deals with the First Amendment.

By way of background, it seems that liberals lost the use of the American flag as conservatives appropriated it as their own. This, no doubt, began in the 1960s when antiwar protesters started burning it.  Liberals have struggled to recover.

Stephen Colbert built an entire satiric show around the concept that waving the flag somehow meant that you were patriotic — while ignoring the values that the flag stands for.

A similar battle is now taking place regarding another potent American symbol, the national anthem.

We may now be seeing yet another version with a battle over the First Amendment. The New York Times decided, in a fit of epic stupidity, to highlight that right wing nut job conspiracy theory propagator Alex Jones hired noted First Amendment attorneys Marc Randazza and Jay Wolman to defend him in a defamation suit from the parents of Sandy Hook massacre victims.  Crackpot Jones claimed the massacre was a hoax.

This is what we lawyers like to call in legalese, logical. Because if you have a First Amendment problem you’re not going to hire a matrimonial or real estate attorney. When I was sued for defamation the first time, in the infamous Rakofsky case, I was part of a large group of lawyers who hired Randazza. There was a damn good reason for it.

But no, the Times decided to highlight the fact that Randazza also represents a Nazi in one of his other First Amendment defenses. Note to the Times, which should know better:  If you’re going to represent free speech issues you are not likely to be representing the late Mr. Rogers and his neighborhood. You will sometimes defend people out on the fringes of society, many of whom are widely detested. Benign language that the majority loves isn’t where free speech battles are fought.

This article was a follow-up to an Adam Liptak article in the Times about the First Amendment being “weaponized” by the right.

Lets be clear:   The First Amendment is not an issue of the left or the right, as all people benefit from its protections.  Those who defend the First Amendment firmly believe that an infringement upon it is an infringement upon everybody’s rights, regardless of whether you come from the left or the right. Lawyers that defend free speech are not really defending the speaker. They’re defending the constitution.

This is not to say that the Democrats are the only fools in this battle over American symbols. The Republicans, for example, have lost the Statue of Liberty as they elevate bigotry over the statue’s central message.  Why it is that Democrats have not created a flag with the torch of liberty to constantly wave remains a mystery to me. This will haunt the GOP for decades to come.  That issue was a gift to Democrats, just as surely as the burning of American flags was an inadvertent gift to Republicans.

And so, dear New York Times, don’t be so quick to make the First Amendment a battleground of partisanship, the way it has for the flag, anthem and statue. It will not end well for those who believe in free speech. And that doesn’t just mean not ending well for you as a major media outlet, but for all Americans.