We have so many lawyers posting here, Daily Kos could qualify as one of the ten largest law firms in the country. And whenever a diary praising the profession appears, it usually makes the rec list, and invariably leads to a comical feeding frenzy of barristers going out of their way to pat each other on the back. But as much as I hate to break up this bacchanalistic binge of bombastic braggadocio, I need to remind you that there's work to be done.
As John Dean observed in Broken Government, our judicial branch has suffered the gravest and most lasting damage from Hurricane George. Though the rule of law hangs by the barest thread, the legal profession has done less to save it than the Republicans have done to save Detroit.
The latest installment in this long-running series of self-laudatory tomes was brought to you courtesy of noweasels, who proclaims that we should "thank our lucky stars for big corporate law firms." The reasoning in his passionate defense of BigLaw should chill every average American's blood: "[A] lot of the justice that is still meted out in this country (to the extent it is meted out at all) would never have gotten done without them."
Allow me to translate: In America, you only get about as much justice as you can afford.
To his great credit, noweasels offers this pledge: "I, like almost all the lawyers I know, will always do my best to help my fellow citizens, in any way I can; that is what we do." I proffer the evidence in this diary in the same constructive spirit, in hope that the leaders of the legal profession who post here will recognize that a GM-class rescue effort is needed to save our nation's courts.
I'll start by raising a basic meta-question for our legal brain-trust: How much arsenic can you tolerate in your water? How much legal arsenic can you tolerate in the stream of precedent? Like our financial system, our legal system operates mostly on trust. We place our trust -- and in a real sense, our very lives -- in the hands of a coterie of black-robed thugs. But when, if ever, can any man be trusted with such absolute power when he cannot be held to account for his actions?
If You Think You Have Rights ... Think Again!
Our Constitution grants every citizen the right to bring valid grievances before our nation’s tribunals, further guaranteeing us due process of law and equal protection of the law. Unfortunately, there are people among us who believe they can disobey the law whenever it suits their purpose. These people are called federal judges. And if this matter could be distilled to a single sentence, the Maine Supreme Court has managed it:
Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.
In re Ross, 428 A.2d 858, 861 (Me. 1981) (emphasis added).
Welcome to the cruel joke we laughingly call the American court system. As Magistrate Judge Kristen Mix reportedly confessed to a litigant in a settlement conference:
The biggest problem with your case is that Judge Nottingham hates employment cases and there's nothing you can do about it. It's random. Now don't get me wrong, he's a fine judge, but he just hates employment cases. That's why he will try to find any way in the summary judgment briefs to say there's no material issues and grant summary judgment, and if he doesn't, he will make it tough at trial, and you won't win . . . I'm going to look you right in the eye and tell you that you're gonna lose.
Pl.’s Mot. For Recusal of Judge Nottingham Pursuant to 28 U.S.C. §144 and §455(a) and (b)(1) [Dkt. #59], Phillips v. Pepsi Bottling Group, No. 05-cv-01322-EWN-KLM (filed Nov. 1, 2007) at 2 (emphasis added; and yes, this is an attorney, bound by the strictures of Fed. R. Civ. P. 11 and Rule 3.3, making this accusation).
Every federal judge swears an oath to "administer justice without respect to persons, and do equal right to the poor and to the rich, and that [s/he] will faithfully and impartially discharge" all of his or her duties. 28 U.S.C. §453. But when this Republican judge decides, on his own motion, that he can avoid hearing a case he had a duty to hear, it constitutes "treason to the constitution." Cohens v. Virginia, 16 U.S. 264, 404 (1821).
If the most important factor in whether you will win a given lawsuit is the identity and predisposition of your judge, it is fair to say that we don't have a rule of law any more. In essence, your "rights" are not what the Constitution and/or lawfully enacted statutes and treaties say they are -- or even what the binding precedent of that court say they are -- but whatever the judge says they are on any given day. You no longer have "rights" at all but rather, you have a tenancy at will in your liberties. [For you non-lawyers, this is legalese for saying that the government can take those "rights" you think you have away at any time, and for any reason.]
Colorado Lawyers: A Herd of Geldings?
So, where are the lawyers like noweasels and the denizens of BigLaw, who "will always do my best to help my fellow citizens, in any way I can" and, as are officers of the Court, have an affirmative duty to do so? I can't speak for noweasels, but I can comment regarding the weasels of the Colorado bar. As Professor Carl Bogus wryly observes:
Some people are more vulnerable to a lack of criticism than others, and among the most vulnerable are judges. ... Saying that lawyers treat the judges with deference fails to capture the interaction; it is more accurate to say that lawyers bow and scrape. Some lawyers have elevated fawning to an art form, pulling it off with subtle elegance. But few tell a judge she is wrong.
Carl T. Bogus, Culture of Quiescence, 9 Roger Williams U.L. Rev. 351, 352 (2004) (emphasis added).
The Colorado bar consists almost exclusively of geldings. Prominent Republican lawyer and maven of morality Dan Caplis hosts a local radio show on one of our extremely right-wing Clear Channel outlets, and as to be expected, he went ballistic on Eliot Spitzer. But when a caller confronted him regarding Judge "Naughty," his spine collapsed in record time:
First and foremost, I'm a trial lawyer, and my obligation is to my clients. And that's why there are going to be times when a judge -- a local judge -- deserves criticism and I won't offer it on-air, because I don't want to compromise my clients' interests.
His radio partner, former district attorney and Democrat Craig Silverman, agreed:
[B]ut we're also attorneys, and we don't know when a case bars, or one of our partners is going to be in front of Judge Nottingham, so if you perceive a little hesitancy on my part, that it accurate. ... For me personally, it is sort of dicey for me to be talking about Judge Nottingham -- it's a delicate situation for Denver lawyers.
What their remarks say about our local courts -- and our Bar, in particular -- is positively damning. With RARE exceptions, local attorneys refuse to criticize local judges publicly because they know that they only follow the law when it takes them exactly where they want to go. And therefore by implication, the Constitution and Bill of Rights are completely null and void in Colorado because our judges, like Captain Barbossa in Pirates of the Caribbean, are free to "the [United States] Code" as more like "guidelines."
Appellate Courts: Committing Felonies On an Industrial Scale
At least in theory, our appellate courts are supposed to rein in the excesses of rogue district court judges like Edward "Two-Hookers" Nottingham, but federal appellate judges themselves tell us quite a different tale. Judge Kozinski of the Ninth Circuit publicly admitted that the panels in his circuit may issue 150 rulings per three-day session. Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5. But even they are slackers compared to the late Judge Richard Arnold, who confessed that he participated in a two-hour conference which decided fifty appeals. Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12. The work quality in unpublished opinions is uniformly abysmal, as one federal district court judge admitted in open court:
THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
MR. WINEBRAKE: Well, we concede—
THE COURT: It’s instructive on what they’ll do without much thought.
Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006) (emphasis added).
As Judge Murnaghan of the Fourth Circuit openly confesses, the second-class status of unpublished opinions[1] leads inexorably to third-rate decisions, observ1ng that
it is well known that judges may put considerably less effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law.
Wilson v. Layne, 141 F.3d 111, 124 n.6 (4th Cir. 1998) (Murnaghan, J., dissenting).
Legal scholars have shown quantitatively what all appellate lawyers understand intuitively: The most important factor as to whether you prevail in court is who your judges are.[2] This is most pronounced in adjudication of close electoral disputes, where the outcome can be predicted with uncanny accuracy by merely ascertaining which political party had put the judges in question into office. [3]
Noweasels solemnly assured me that our system of appellate law is not broken, proclaiming that "[i]t is not accurate to say that appellate courts do not hear oral arguments any more," "I absolutely do not believe that appellate judges 'don't even read the opinions they write,'" "[a]nd I have never heard of paralegals writing appellate briefs." But while that may be true in the rarefied hot air in D.C. where he practices, the reality on the ground out here in the hinterlands of Colorado is demonstrably different. My response follows:
You've heard of [Tenth Circuit appellate judge] Mitch [sic - actually, Michael; my bad] Mitch McConnell, right? Top-drawer constitutional scholar, believed to be on the short list for SCOTUS in a McCain Administration. Go on and tell me that he read this piece of crap.
To save time, I'll tell you what McConnell fucked up, and why it constitutes conclusive proof that he didn't read the briefs or the opinion. This is strictly 1L stuff: the trial court dismissed the claims in question with prejudice, despite the fact that they were dismissed on jurisdictional grounds. And this brilliant constitutional scholar, who taught at Harvard and Stanford, didn't think that the trial court was in error? Puh-LEEEEEZE, NW!
What's more, the case was assigned to the panel and dismissed on the same day. Do you mean to tell me that the judges read 200 pages of legal briefs that day? Get real.
This instance constitutes conclusive proof that at least in the Tenth Circuit, appellate judges rarely bother with the drudgery of reading briefs and writing opinions. Here, the case was assigned to the panel on the very same day that the decision was rendered; this would mean that all three judges would have had to have read some 200 pages of briefs in a fairly complex case raising several virgin legal issues, performed the appropriate research, deliberated the merits of the case, and assigned the writing of the opinion to Judge McConnell, who would have had to have written and proofread it in time for the clerk to file it before s/he trundles over to the Brown Palace for a few highballs. Now, if you can believe that, trickle-down economics should be easy to swallow.
The situation is even more dire at the Supreme Court level. Prior to 1925, appellate court errors -- whether innocent or even willful -- would be corrected by the Court pursuant to a writ of error. Stern, Supreme Court Practice (9th ed. 2007) at 75. Today, the chance of getting even the most egregious appellate error corrected is roughly equal to that of being drawn a five-card straight flush. Federalist Society judges in can disregard the "binding" law of their circuit with impunity because, just like their patron George W. Bush, they can.
The True State Of the Law....
At the end of the day, the legal profession has been channeling its inner Hank Paulson, assuring us that we can have complete confidence in our nation's courts. Leave it to a senior judge of the Fourth Circuit Court of Appeals to speak truth to power:
The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.
Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004) (emphasis added).
In paeans meant for public consumption, judges (and their handmaidens in the organized Bar) have gone to considerable lengths to foster the self-serving illusion that they apply all of the law in a fair and even-handed manner -- waxing eloquently about the rule of law, and how our legal system serves as a model for the civilized world. Quoting President Woodrow Wilson, Justice O‘Connor proclaimed that "‘the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts.’ ... When the power to make laws is separated from the power to interpret and apply them, the very foundation of the Rule of Law — that controversies are adjudicated on the basis of previously established rules — is strengthened." Sandra O’Connor, "The Importance of Judicial Independence" (speechbefore the Arab Judicial Forum, Manama, Bahrain), Sept. 15, 2003. Of course, the obverse -- when judges have power to act as lawmakers, the Rule of Law is imperiled -- is equally true. And therein lies the problem.
The fundamental malaise in the American system of justice has been precipitated by the fact that our judges, intoxicated by untrammeled and unchecked power, have strayed so far from the Hamiltonian ideal that they are no longer worthy of the title. The people reasonably expect that judges "will rule by the letter of the law, not the whim of the gavel," George W. Bush, State of the Union (Jan. 28, 2008), but our servants of the law have become so haughty, arrogant, and disdainful of their legal and moral obligation to apply the law without fear or favor that they have become de facto dictators.
And a Practical Solution:
All we need to do to appreciate the ramifications of power without accountability is to examine the adventures of George W. Bush and Hank Paulson. And, once we admit that our judges have virtually the same quantum of unchecked power, the solution is obvious: Hold judges personally accountable for their wrongful acts. This was, incidentally, the same sensible solution imposed by King Hammurabi thirty-eight centuries ago:
If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge's bench, and never again shall he sit there to render judgement.
Codex Hammurabi sec. 5 (Babylon ca. 1760 B.C.).
Most of the tools for doing this are arguably in place. I have already proposed several suggestions, including enforcement of federal judges' "good Behaviour" tenure through an action for relief in the nature of a writ of scire facias and the private criminal prosecution of judges where appropriate (I proposed this as a way to visit justice on war criminals). But these are common-law remedies, which our corrupt judiciary is inclined to ignore; if Congress enacted statutes expressly authorizing citizens to act as private attorney generals, these restraints on unbridled judicial caprice would have teeth. The passage of legislation to comply with the International Covenant on Civil and Political Rights would be of further help -- because, like the Soviet Union before it, America only signs human rights treaties, as opposed to complying with them. Exposing the sordid process of judicial discipline to the sunshine of public scrutiny would clean up that fetid sewer in short order (see how Colorado's Commission on Judicial Discipline, its federal counterpart, and Colorado's Attorney Deregulation Counsel actually operate). But what it will take, at the end of the day, is people power.
The Legal Profession: AWOL By Design?
One major obstacle to judicial reform is the legal profession itself, which benefits handsomely from the status quo. Few lawyers possess the perspicacity to perceive that they are part of the problem, as opposed to the solution. A local attorney laments:
I wish the reality of our profession — at least as viewed by the people we purport to serve — could be seen as a "glass half-full." I am afraid, however, that because lawyers view justice differently than nonlawyers, we are drinking from different cups. For too long, we who are in the system of justice have insisted that those outside defer to our point of view. I think it is time we look at ourselves through their eyes. ...
"If the non-lawyers in our society truly expect that we are interested in justice (as the majority of people understand it to be), we first must accept the fact that we are not now, and quite possibly never have been, viewed by our community as the professionals we claim to be. Instead, we are viewed (in many ways rightly so) as the educated and wealthy elite, making our living by helping the legally illiterate maneuver through the procedural waters of the law that we have created and that cannot be navigated without us. It is an unfortunate reality that those who are not educated in the law are required to navigate these waters as a condition of their membership in this society.
David L. Geislinger, What Price Justice? Why Was Amendment 40 Even on the Ballot?, 36 Colo.Law. 5 (May, 2007) at 77.
We are trapped in a Ayn Rand-inspired hell, where we cannot know what "the law" is and as such, cannot hope to conform our behavior to comply with it. Judges decide what "the law" is on an ad hoc basis, and the attorney, who is viewed by the public -- and not without good cause -- as a loathsome cockroach, feasts off this unfathomably ambiguous system. There is one set of laws for the rich and well-connected, and another for the rest of us. And attorneys like this just fine, as it funds their lavish lifestyles.
A comical example of this was related by Dan Caplis in connection with the recent Denver ticket-fixing scandal. Basically, for a fee, an attorney who has developed a relationship with the local DA can generally cut a better deal for you in traffic court than you would get if you represented yourself. One attorney reputedly complained to Caplis that by exposing and publicizing this scam, Caplis was cutting into his business: "Why would they come to me if I can't get them a better deal?"
Attorneys have a vested financial interest in unequal justice, and as such, are actively working to preserve the status quo. Is it even possible to appeal to their better angels, when the mortgage on the chalet in Aspen is on the line? If the patron saint of lawyers can't persuade them, nothing will:
He who knows anything about politics may easily foresee there is a great storm gathering in the kingdom against us lawyers. The only way to prevent it is to keep hold of the principles of right reason and dispatch poor men’s causes free of charge this hard year. ... Let us contend earnestly for the truth rather than victory. As soon as we discover the cause is unjust let us drop it and advise our clients to make their peace. Let us never utter in court a word we believe untrue. If clients tell us they have no money, let us act for them for their thanks. Then, I warrant you, we shall be Parliament-proof and Kingdom-proof; the people will quickly recognize our usefulness, and an honest lawyer will be a necessary member of the Kingdom and the wisdom of the common law will be admired and honoured. But if we make disquiet and trouble for the poor, then believe me the Kingdom will be as weary of us as they ever were of bishops or arbitrary courts.[4]
While John Cooke was but a commoner, his nobility spans the ages. He was the father of our Fifth Amendment right to freedom from self-incrimination. His Poor Man’s Case was a primogenitor of the modern-day oath of office and the moral duty of pro bono representation. But his one indefatigable act of courage forms the very foundation for our modern law: that no man is above the law, and none are beyond its protection. Cooke argued Rex v. Rex when Rex was lex; without that innovation, tyrants like Hermann Goering, Augustus Pinochet, Slobodan Milosevic, and Saddam Hussein would have been beyond the reach of law, for "the King can do no wrong."
Footnotes:
- In most jurisdictions, these opinions are declared by the judges as having no value as legal precedent. In effect, the Court is declaring that they are deciding the case on an ad hoc basis, creating law for one and only one set of litigants, which future courts are free to disregard at their leisure. The term "unpublished" came from the fact that they were not published in West's compilations of case law; in Colorado, these decisions literally may not be published.
- Deborah Merritt & James Brudney, Stalking Secret Law: What Predicts Publication in the United States Court of Appeals, 54 Vand. L.R. 71, 116 (2001) (statistical analysis of unpublished appeals of Dept. of Labor administrative rulings shows consistent bias attributable to the judges’ presumed political persuasion).
- E.g., Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla. 2000) (Democrats); Gore v. Harris, 772 So.2d 1243 (Fla. 2000) (Democrats); Bush v. Gore, 531 U.S. 98 (2000) (Republicans), New Jersey Democratic Party, Inc. v. Samson, No. A-24 September Term 2002 (N.J. 2002) (allowing Democrats to replace scandal-plagued incumbent Sen. Robert Torricelli on the ballot with then former-Sen. Frank Lautenberg). People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (Democrats thwart Republican redistricting effort -- ironically, adding one Republican to the 2008 Congress).
- Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (New York: Random House, 2005), at 107-08. Queen’s Counsellor Robertson, an Australian, is one of the world’s pre-eminent experts on international human rights law, having spent a lifetime in its advancement.