It isn’t only left-leaning judges who get into “ethics” trouble

During the discussion last week about Judge Scheindlin. and the Second Circuit, several commentators suggested that it was only left-leaning judges who seemed to get into ethics problems. I did not think that was so, and today I will provide an example of why I don’t think that is so.

Consider the most recent attack on Judge Diane Sykes of the Seventh Circuit. She interviewed Justice Thomas on stage at the Federalist Society’s recent dinner “gala.” Because she allegedly did that at a “fund-raiser,” Representative Louise Slaughter, Arn Pearson, Vice President for Policy & Litigation, Common Cause, and Nan Aron President, Alliance for Justice filed a complaint with the Seventh Circuit against Judge Sykes. See here for the complaint. The only problem was that the dinner lost money and did not serve to raise funds, so said the Federalist Society. See here.

First, two observations about the creepy Federalist Society and its equally strange double, the American Constitution Society (ACS). Here they are:

* The Federalist Society and the ACA are like the Girl Scouts and the Camp Fire Girls of my youth. They wear matching uniforms, parade around mouthing similar slogans, and specialize in making macaroni art that is inedible. In the main, however, they are harmless.

*For among other reasons, I never attend Federalist Society or ACS gatherings ’cause I don’t appreciate fine wines. See attached photo.

Second, just as Judge Scheindlin was subjected to an allegation that she violated the Code of Conduct for United States Judges, Judge Sykes was targeted during the same time frame with an allegation that she too violated the Code. Judge Scheindlin and Judge Sykes do not share the same views on many things. But, neither one deserved the smack.

Finally, and what follows is the important point. The next time you hear that a federal judge has violated the Code of Conduct, think about that claim as a “drive-by shooting.” 

RGK

RGK's box wine on the beer 'frige in the garage

RGK’s box wine on the beer ‘frige in the garage

15 responses

  1. “The Federalist Society and the ACA are like the Girl Scouts and the Camp Fire Girls of my youth. They wear matching uniforms, parade around mouthing similar slogans, and specialize in making macaroni art that is inedible. In the main, however, they are harmless.”

    I love you, Judge Kopf.

    Plus, even though I’m a flaming liberal who disagrees with almost all of Judge Sykes’ rulings, I have no idea what she did wrong here. The complaint reads like something from The Onion. And shouldn’t there be a complaint against Justice Thomas as well?

  2. PDB,

    Thanks for your kind comment. I find both of these groups (and I don’t mean the Girl Scouts or the Camp Fire Girls) to be hysterically funny. They are a perfect parody of the academic elite at each extreme of the spectrum–so preciously pretentious and so utterly insignificant. They honestly believe the real shot-callers give a shit what they think. In fact, they are tools easily manipulated by the real shot callers to gin up the base of their respective political groups. In short, the Federalist Society and the ACA are the modern exemplification of that cold war phrase “useful idiots” broadened in this age to encompass legal true believers on the right (Federalist Society) and on the left (ACS).

    All the best.

    RGK

  3. PDB,

    I forgot to answer your last question. Since Justice Thomas is not formally subject to the Code of Conduct, the Nan Aron bunch sent a very earnest letter to the Chief Justice complaining that Thomas talked with Judge Sykes before those assembled for the Federalist Society “gala.” See here. Oh, the horror!

    All the best.

    RGK

  4. I’m to the right of center and was fairly involved in FedSoc in law school, including attending a couple of the national conventions (where a huge % of the attendees, BTW, are law students reveling in being at such an “important Washington event”). In the 6 years since I graduated, I’ve come much more to Judge Kopf’s view of the organization. Most actual, practicing lawyers don’t have time to be involved in something like FS or ACS, so I’m inherently a little suspicious of those who do. In my experience, they tend to be in it for the networking/social-climbing aspects, especially in more conservative cities such as Atlanta or Houston. It’s telling that DC has very little local FedSoc activity, because as Judge Kopf suggests, it basically functions like a higher-brow Tea Party or CPAC for attorneys, wrapping fairly standard Republicanism in legal pseudo-intellectual garb that appeals to lawyers, judges, and law students who like to imagine themselves as “scholars” at heart. I think it’s especially unfortunate that a good deal of the national convention is now given over to politicians (Ted Cruz, etc).

    Neither of the Republican-appointed judges I clerked for had much to do with the group, which I think speaks well of them (and our host). There’s something unbecoming to me about the annual spectacle of (mostly) the same judges showing up at the DC convention to accept more awards and accept the accolades of their fans. The gala dinner, which basically rotates through the 4 conservative justices, is especially ridiculous.

  5. Pingback: "It isn't only left-leaning judges who get into 'ethics' trouble" | Internet Tax Lawyers

  6. Judge Kopf,

    As silly as the Federalist Society and ACS may be, the former does a fairly good job at looking out for its own…a much better job than the latter. My law-school classmates on the right-of-center (and/or libertarian) side of the spectrum, and who were affiliated with the Federalist Society, found themselves easily placed within like-minded think tanks, nonprofits, and so on; and, from what I’ve heard, Fed Soc affiliation was almost a prerequisite to certain federal government employment during the Bush II years. Whereas the ACS seems to have basically no continuity of that sort at all. It exists to hold garish events with high-minded captions that everybody ignores.

    So while the two organizations may be twins occupying different poles of the ideological spectrum, one manages to accomplish an awful lot more for its adherents and members than the other.

    (not forgetting, of course, that the plural of “anecdote” is not “data”).

    -JEJ

  7. Judge,

    Having been born, raised and educated in the Great State of Nebraska I now practice law in Kansas City. Like any good Nebraskan would, I find your blog to be brutally honest and yet so refreshing. Keep up the good work. That being said, however, I feel the need to correct one very important error in this post – Franzia Chardonnay is MUCH better than Franzia Crisp White. I’m serious.

  8. Jasper,

    Thanks for your comment. Interesting observations about the differing emphasis on money and jobs depending upon one’s political leanings.

    If history serves me correctly, this is not the first time right-wing and left-wing groups have divided along those financial lines. Compare the Hitlerjugend with the Komsomol. I am teasing. Sorta.

    Seriously, if the Federalist Society gets good young lawyers jobs, I am all for that. The ACS ought to do the same. I just hope that those young lawyers–be they members of the Federalist Society or the ACS–grow up to become real lawyers.

    All the best.

    RGK

  9. I think the difference is primarily the relative youth of ACS compared to FedSox, and the fact that, at least in more “elite” legal circles, being a conservative is clearly the minority political orientation, so there’s more room for FS to function as a “promoter” of people’s careers in that small world.

  10. MDP,

    Stop talking to my wife about Franzia Chardonnay! She (and you) know nothing of the incomparable beauty of the Franzia Crisp White and the whimsical bouquet that is released once the plastic spout to the box of that rare vintage is opened to the gasoline-soaked ambiance of my garage. Nor do either one of you appreciate the importance of a “crisp” swig from a plastic cup as I ride the John Deere. Chardonnay, you say. That’s French, I respond.

    So there. All the best. (Seriously.)

    RGK

  11. RGK: “The next time you hear that a federal judge has violated the Code of Conduct, think about that claim as a “drive-by shooting.”

    That is because NO ONE enforces the Code of Conduct. The average judge would rather gnaw her arm off.

    When judges judge fellow judges, they show a pronounced and well-documented propensity for indulging in undue ‘guild favoritism.’” Breyer, Report to the Chief Justice at 1. As Senior Judge Kane of the District of Colorado related to the Washington Post, the reason is obvious, as one of his colleagues told him: “’John, think about it. The next time it could be you or me. We’ve got to stick together.’ ” Ronald Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006, A-29; see Cleavinger v. Saxner, 474 U.S. 193, 204 (1985) (re: guild favoritism). In ruling in favor of fellow judges, the judge makes a deposit into what Harvard’s famed Alan Dershowitz calls “the favor bank,” Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 116 (2001). which ends up costing nothing under the status quo ante. In Judge Posner’s brutally candid parlance, it is Bayesian decision theory in action. See Richard A. Posner, How Judges Think (Harv. U. Press 2008).

    Even when judges commit felonies, the DoJ either looks the other way or aids and abets them. As Michael Tomasky of The Guardian cynically observes, in America, the demigods of our Supreme Court are above the law:

    Obviously, Thomas is not going to be indicted over this. But how could a man – a member of the Supreme Court! – just openly lie on such a form? Lie? Yes, rather obviously. Let’s put it this way. If you or I were filling out a form, and we came to a question about our spouse’s income, and we knew very well that our spouse had income, we would check the appropriate income category. And here is one of the nine leading legal people in the United States. On what conceivable honest basis could he have thought his wife, who got up every morning and went to work every day at one of Washington’s most richly endowed think tanks, had no income? For six years?

    I wish we had a satirist, a Balzac, chronicling this age. It is beyond believability.

    Michael Tomasky, Clarence Thomas, What? (blog), The Guardian (U.K.), Jan. 27, 2011, at http://
    http://www.guardian.co.uk/commentisfree/michaeltomasky/2011/jan/27/usdomesticpolicy-clarence-thomas-what.

  12. Thomas is just flat-out above the law. And the criticism of his criminal conduct was so raucous, you could hear a pin drop.

    When judges won’t even condemn fellow judges who sit in judgment of their own cause, can you really expect them to have the character to police their own?

    The Mafia has more honor than the Judicial Council.

  13. Judges would rather gnaw their arms off than discipline a colleague, even when he solicits a bribe (according to Judge Kane). I tried to use the system with respect to Nottingham — who left in disgrace — but was rebuffed at every turn:

    Gentlemen:

    I wish to consolidate the two above-referenced appeals here, as their success or failure turn on a single common question. Chief Judge Tacha has asserted that these claims are “directly related to the merits” of a ruling and as such, “not cognizable in this forum.” The ultimate question here is not one of relation, but of degree of consanguinity. Or, to put this more succinctly, “What is it that Congress intended you to do?”

    Under Chief Judge Tacha’s unduly stilted and literalistic reading of 28 U.S.C. § 351, if Judge Nottingham suddenly acknowledged that he was routinely deciding cases via consultation with his Magic 8-Ball, this Council would be proscribed from taking appropriate disciplinary action on the grounds that the claim was “directly related to the merits” of that ruling. Surely, the law cannot countenance such a self-evident absurdity. And under any fair reading of the law, it does not.

    When Congress enacted modern-day Section 351, they made their intention in doing so explicit. As Judge Kozinski of the Ninth Circuit explains:

    In the late 1970s, Congress became concerned that Article III judges were, effectively, beyond discipline because the impeachment process is so cumbersome that it’s seldom used. See 126 Cong. Rec. S28091 (daily ed. Sept. 30, 1980) (statement of Sen. DeConcini). At the same time, Congress was aware of the adverse effects on judicial independence if federal judges could be disciplined by another branch of government using means short of impeachment. See S. Rep. No. 96-362, at 6 (1979), reprinted in 1980 U.S.C.C.A.N. 4315, 4320.

    Congress’ solution was to delegate its oversight duty to the courts themselves, and they made it clear as to what they wanted done. In crafting Section 351, they stated in the legislative history that the phrase, “effective and expeditious administration of the business of the courts,” was “intended to include willful misconduct in office, [and] willful and persistent failure to perform duties of the office.” S. Rep. No. 96-362, at 9, reprinted in 1980 U.S.C.C.A.N. at 4323.

    That phrase ought to be familiar. As this Council knows, under Article III, judges “shall hold their Offices during good Behaviour,” and it “cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 5 U.S. 137, 174 (1803). While Article III judges are the only federal servants who enjoy a freehold in their offices, that freehold is plainly limited by “good behavior” tenure, a common-law concept well-known to the Framers. Sir Edward Coke listed three grounds for forfeiture under this standard: abuse of office, nonuse of office, and refusal to exercise an office. Henry v. Barkley, 79 Eng. Rep. 1223, 1224 (K.B. 1596). These have been compelling grounds for the removal of judges ever since judges have enjoyed good behavior tenure.

    It is a matter of record that Congress delegated the bulk of its constitutional task to you: to investigate acts of judicial misconduct, attend to the punishment of minor acts of misconduct, and recommend impeachment in situations where it is warranted. What’s more, as Prof. Charles Geyh pointed out to the Judiciary Committee, the historical conduct of Congress has given you a road map directing you as to what is to be investigated:

    The House has investigated at least 78 judges over time (including the thirteen that the House ultimately impeached). A total of 148 known charges have been leveled against those 78 judges, and it may be useful for the Committee to see the range of conduct that has provoked impeachment inquiries over the years:

    • thirty two charges concerned abuse of judicial power (judges who allegedly
    made outrageous judicial rulings that disregarded the law);
    • nineteen charges concerned abuse of administrative power
    • fifteen charges concerned favoritism or bias
    • fourteen charges concerned misuse of office for financial advantage
    • thirteen charges concerned demeanor on the bench
    • thirteen charges concerned solicitation of bribes or favors
    • eleven charges related to nonperformance or incompetent performance
    • ten charges concerned non-judicial misconduct
    • eight charges related to the misuse of government funds
    • thirteen charges related to other, miscellaneous misconduct, ranging from
    disloyalty, moonlighting and insanity, to failure to reside within the judicial
    district and omnibus claims of unfitness.

    A quick perusal of that list shows that roughly half of all impeachment inquiries were precipitated by acts “directly related to the merits” of one or more rulings. Clearly, as Congress asked you to investigate incidents of judicial misfeasance, malfeasance, and nonfeasance — what it no longer had time to do — this Council’s failure to properly attend to that task is itself nonfeasance. Importantly, the first two impeachments were for flagrant decisional error, of the kind complained of here (and in No. 2006-10-372-40). Still, it is not the errors themselves, but what they necessarily imply, that create an impeachable offense. Professor Geyh observes:

    In 1805, Justice Samuel Chase was impeached by the House of Representatives for highhanded judicial decision-making. At his Senate trial, Justice Chase drew a distinction between innocent and ill-motivated error that resonates to this day. For Chase, “ignorance or error in judgment,” is an impeachable offense only if it has “flown from a depravity of heart, or any unworthy motive.” Accordingly, if the Senate found that he “hath acted in his judicial character with willful injustice or partiality, he doth not wish any favor; but expects that the whole extent of the punishment permitted in the constitution will be inflicted upon him.” If not, Chase was “confident that this court will make allowances for the imperfections and frailties incidental to man.” The House managers (who prosecuted Chase in the Senate), argued that the Senate should presume an ill-motive from the errors themselves. Manager George Campbell explained:

    The judge insists, if he was mistaken, it was an error of judgment. This cannot be presumed. Ignorance of the law is no excuse in any man; but in a character of such high legal standing and known abilities as that of the accused, it is totally inadmissible and not to be presumed. How could any judge with upright intentions commit so many errors or hit upon so many mistakes in the course of one trial? . . . . They must have been the result of design . . .

    While erroneous decisions can be forgiven, it is well established that dishonest and intentional errors cannot. Geyh continues:

    The same arguments were replayed at the 1830 Senate impeachment trial of district judge James Peck, who had been impeached for abusing his contempt power in an isolated case. Both sides agreed that dishonest errors were impeachable while innocent ones were not. House manager James Buchanan insisted that a bad motive should be presumed from the gravity of the error itself: “If a judge has cruelly and illegally imprisoned and punished an American citizen, the court before whom he is impeached will never set out to hunt after a good motive for this bad action. Judge Peck’s counsel begged to differ: “[G]uilty intention is not to be inferred from the alleged incorrectness of his judicial opinion, but must be satisfactorily proved by evidence in the cause.

    Again, this is a simple question, with what is presumed to be a simple answer. The complaints, taken together, demonstrate a pattern of misconduct by the named judges. A pattern of cruel and illegal punishment visited upon defenseless American citizens, whose only crime is that they were unfortunate enough to be forced by circumstance to represent themselves and/or ran afoul of corrupt judges.

    While every breach of public trust is a matter for concern, few can be more serious than those committed by the men and women of our judiciary. As famed orator Daniel Webster, referred to as the “Defender of our Constitution,” once remarked:

    There can be no office in which the sense of … responsibility is more necessary than in that of a judge; especially of those judges who pass, in the last resort, on the lives, liberty, and property of every man. … The judiciary power, on the other hand, acts directly on individuals. The injured may suffer without sympathy or the hope of redress. The last hope of the innocent, under accusation and in distress, is in the integrity of his judges. If this fail, all fails; and there is no remedy on this side the bar of Heaven.

    Due to the unexpected candor of Judge Kane, we now know why there are no reported cases in the Tenth Circuit interpreting 28 U.S.C. § 351: You all “stick together,” and are “covering one another’s butts.”# In turn, this constitutes “conduct prejudicial to the effective administration of the courts,” as the goal of Section 351, et seq. is to provide “a means for dealing with the systematic inability or unwillingness to perform the duties of judicial office.” In re Charge of Judicial Misconduct, 593 F.2d 879, 881 (9th Cir. 1979).

    The status quo cannot long continue. If you don’t do your job, others will, and in a way you might not relish. As Judge Kozinski reminded his colleagues,

    Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done-or been tempted to do-in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we’ve condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.

    Pleasant or not, it’s a responsibility we accept when we become members of the Judicial Council, and we must discharge it fully and fairly, without favor or rancor. If we don’t live up to this responsibility, we may find that Congress-which does keep an eye on these matters-will have given the job to somebody else, materially weakening the independence of the federal judiciary.

    When you so flagrantly place your fingers on the scales of justice for friends and colleagues like “Ed” Nottingham (we have to call him “Your Honor”), you commit a profound violation of the public trust. As Judge Kleinfeld of the Ninth Circuit wrote in a case involving the eminently impeachable Judge Manuel Real:

    A lady at the travel agency, Ms. Kenichi Kimura, who had thought she was dealing with the government – a reasonable assumption since she was selling travel to a United States Attorney’s procurement agent on a government credit card – wrote a victim impact statement explaining that she was required to pay back the loss to her company with monthly deductions from her salary, amounting to a fifteen to twenty percent pay cut that she could not afford. The violation of trust had driven her to seek counseling. She wrote, “[t]o me, working for the Government itself is the steady, fair and irresistible reason to believe. Maybe, I am Japanese and don’t know much about the America. What else can people, including American believe if they can’t believe the Government.” …

    An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment.

    The kind of manifest injustice the judges of this Circuit have aided and abetted heretofore — according to your own colleague Judge Kane! — is corrosive. At the end of the day, if our judges have become so “independent” that they can openly flout the law without fear of reprisal, there is no societal value to judicial independence, as there is no ‘rule of law’ left to be preserved.

    For these reasons, I ask that the Council overturn Chief Judge Tacha’s rulings in both of the aforementioned complaints, and initiate appropriate investigations into the conduct complained of therein. I would further submit that the facts warrant a recommendation of impeachment in all three instances.
    ___________________

    The original went straight to the round file.

    You are more likely to see a drive-by shooting in Kearney.

  14. A nice Riesling? Really!

    With a Frenchy-sounding name like yours, this dummkopf became suspicious. So, I did some checking. Turns out that in 2009 hip hop artist Jay-Z released the single “We run this town.” The lyric includes this ode to your recommendation:

    She got a ass that’ll swallow up a g-string
    And up top, uh, two bee stings
    And I’m beasting off the riesling
    And my nigga just made it out the precinct.

    Quoted in thewinerambler“A German wine label is one of the things life’s too short for” – Kingsley Amis at the post written by torsten rambler entitled beasting off the riesling – riesling and street credibility in rap music (October 6, 2009).

    I ain’t no Sucka!

    All the best.

    RGK

Follow

Get every new post delivered to your Inbox.

Join 1,407 other followers

%d bloggers like this: