Judge Posner says: The American people know more about the CIA than the federal judiciary.

A recent Harvard law graduate from Nebraska, while studying for the bar and umping little league games, graciously took time to write me about a fascinating interview with Judge Posner in the ABA Journal. See Joel Cohen, An interview with Judge Richard A. Posner,  ABA Journal (Jul 1, 2014 5:20 AM CDT). I strongly recommend reading the interview.  The interviewer does a fantastic job of drawing Posner out on all manner of things including his public writings and his public quarrel with Justice Scalia.

But, for present purposes, I will concentrate on one aspect of the interview. Then I want your take on Posner’s assertions and the implications we should draw from them. By the way, his views get to the heart of this blog.

Here is the exchange I want you to concentrate on:

JC: Do you have any concern when you engage in, for lack of a better word, a dust-up with Justice Scalia that it deflects from the respect the judiciary might have in the eyes of the public, or even the bar itself?

RAP: I don’t care about that.

JC: How can that be?

RAP: Because I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

JC: So, Judge, you now have an opportunity to air laundry that perhaps hasn’t been aired.

RAP: It’s not a matter of airing dirty laundry; it’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary. For example, there’s wasteful spending on the courts (particularly on the courthouses, which often are wastefully large). There’s a work-ethic problem for some judges—you always have that when you have tenure; you have it with academics, with civil servants. But the most secure tenure is that of a federal judge. Some judges work very hard until they drop—others don’t. And of course judges are not uniformly able. There’s also a problem of excessive delegation to staff, mainly law clerks. And at least three circuits, the 5th, 6th and 9th, now have pre-assignment of judges. A case is assigned to a judge before argument, and he is expected to circulate a memo about the case in advance of argument to the other judges on the (normally three-judge) panel. The danger is that the other judges won’t prepare adequately, feeling it’s the assigned judge’s case. I consider that a questionable practice, deserving full examination. And there are other problems as well, including problems with the overall management of the federal judiciary.

Is Posner right? What are the implications of sitting federal judges (active or senior) writing (or speaking about) “dirty laundry? What about blogs?  Add whatever thoughts come to your mind!

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

I conclude with this idea.  A recent poll of our public showed that only 30% of the People (a record low) have confidence in the Supreme Court. That is a very bad thing. As Alexander Bickel said many years ago, in The Least Dangerous Branch: The Supreme Court at the Bar of Politics and The Morality of Consent, judicial review stands in stark, very stark, tension with democratic theory. Thus the Supreme Court (and probably all federal courts ) must play a statesman-like role in national controversies leading public opinion, albeit infrequently, shyly, carefully and ever aware that survival of our anti-democratic courts turn on a public consensus that the federal courts have a central role to play in our democratic society even though the judges are unelected and life-tenured. If we lose the support of the people, the federal judiciary is doomed. For me, complete and utter transparency is the only effective antidote to the cynicism that abounds regarding the federal judiciary.

Enough. Tell me what you think about Judge Posner’s views and the implications we should draw from them. I am very interested in your thoughts.

RGK

*For what it is worth, Bickel, more than any other contemporary scholar, shaped and continues to shape my view of the proper role of federal judges writ large.

47 responses

  1. “the cynicism that abounds regarding the federal judiciary” I think that is over-broad. Perhaps as to the Supreme Court, occasionally one of the Circuits, it may be so, but I do not see cynicism across the board and not at the Districts.

  2. Your honor, I am glad you are back at the keyboard and I hope you are feeling better. I enjoyed your post in re Ed Cook and Jim Doyle, and you are right, they are both wonderful guys. As to Posner, I thought his comments were right on the money. I especially enjoyed his comment about pre-assigning judges to cases before argument. The Nebraska Supreme Court does that, and it would be very interesting to examine how it works, but if there was ever a court that is secretive, it is the Nebraska Supremes.

  3. If you want to know who is at fault, Your Honor, you can start by looking in the mirror. You “decry” judicial activism in the abstract, but when concrete examples of misconduct are brought to your attention, we can hear a pin drop over your outrage. Even silence is a statement.

  4. Judge Posner admits: “I’d say that for me, for everybody in the judiciary, there’s probably a high error rate.” But the Supreme Court has said that they refuse to correct errors, no matter how obvious. How can we trust the system, Judge Kopf? Why should you have “the support of the people?”

  5. Bouldergeist,

    Again, give me something concrete. I can’t respond to straw man arguments when you won’t even show me the straw man. All the best.

    RGK

  6. The answer to your abstract question is this: Over more than 200 years of our history, with huge mistakes both apparent and admitted, the federal courts have played a constructive role in the life of our country even though the courts are by definition not democratic. That’s why the people should trust the federal courts–if you trust the Founders, and I do, there is no better alternative. As for admitting mistakes, federal judges admit mistakes all the time. For me, see, for example, here and here and here.

    All the best.

    RGK

  7. I’ve read that interview (great interview. I wish I could cross-examine like he conducts that interview). I’m not so sure that transparency will lead to more respect.

    If things are more transparent, won’t the public see what the judiciary does? And won’t that lead to more frequent impeachment when bad behavior occurs? And won’t that lead to a reduced trust in the judiciary as an organization as the media spins it out of control?

  8. I have yet to see a single governing body that does not garner cynical criticism for what it does, whether it’s a city government, a state government, a state judiciary, or a federal judiciary.

    There’s probably no way out of people disliking decision-makers.

  9. Leaving to the side whether it’s actually true that the public knows more about the CIA than the judiciary, isn’t that as it should be?

    1) The CIA–or, at least, the “Homeland” version of it–captures the imagination in a way the judicial chamber does not.

    2) There are no judicial black sites.

    That’s not to say the judiciary cannot be a “dangerous branch” of government, but I’d be deeply skeptical of any argument that the judiciary is anything but far and away the least dangerous branch.

    3) The courts show their work. Or, at least, their rationales.

    Interestingly enough, so too do agencies, the other set of anti-democratic government institutions. Which is to say, if laws, executive orders, judicial holdings, and agency rules are the sausage, then we get little more than generic preambles and talking points explaining how the former two really get made, but opinions and rule-makings to explain the latter. The latter lends itself to informed public debate. The former to talking heads. I’ll take the latter (I’m sure we all would). But at any rate, it makes sense to prioritize digging further into the former.

    4) Judge Posner, at least in the excerpt, is justifying apples with oranges. His public tussle with Justice Scalia is about how judges decide and should decide cases. The question posed to him is whether his public debate on the matter with Justice Scalia is corrosive to the public’s respect for the judiciary.

    Judge Posner responds that he does not care–and explains his ostensible indifference by reasoning that the judiciary’s operations should be more public. But judicial theory and the economics of the judiciary are not the same thing. Whether judges should publicly scrape over originalism has little to do with whether courthouses are boondoggles.

    As for some asides:

    a) I’m all for Judge Posner’s debate with Justice Scalia (for the same reasons I think this blog is so great), but he seemed to muddy the issue with his response.

    b) All of the above said, if public esteem and respect for the judiciary is important–and I agree it is very important–there is an interesting set of case studies–e.g., Europe–that might suggest that somewhat less transparency, not more, would be better. For example, what would happen if the Supreme Court issued opinions anonymously? I’m not advocating for this, just noting it.

    http://opinionator.blogs.nytimes.com/2010/04/23/american-judicial-idol/?_php=true&_type=blogs&_r=0

  10. SLS,

    I have more confidence in what really goes in the federal courts. That is, watch a federal drug trial, or hear an argument in the Court of Appeals, or watch the give and take between the Justices and the lawyers in the Supreme Court, and I believe that fair minded people would be impressed not depressed. That is, I can watch the Huskers self destruct when playing Iowa, or Minnesota, but if the balance of their games are well-played, I am satisfied with their bona fides. I don’t expect perfection, but I do expect an honest effort. And that, I am absolutely certain, is what the public would see most of the time if we were to video record court sessions and make those records easily and quickly available.

    All the best.

    RGK

  11. Julian,

    What a fascinating and thoughtful piece of writing.

    As for the importance of “myth,” as a way of achieving public support, I am aware that their is a risk with transparency as compared with devising “myths” about judicial decision making. At bottom, I just don’t trust “myth” precisely because the “fact” is that our federal courts are not democratic. Honesty requires that we admit this fact, and deal with it honestly. That’s why I am a “transparency” freak. After all, why shouldn’t the people junk the federal judiciary if what they see is not to their liking. That is what a democracy is all about.

    All the best.

    RGK

  12. Of course, Judge Posner is right. The judiciary is scary for the reasons he states and the ones he doesn’t. People don’t understand the courts or how corrupt they really are. Wasteful. Hurtful. Hateful. They are institutions to perpetuate the ruling classes and no amount of diversity will change that. Poor people will go to jail. Rich corporations will prevail. And if you don’t side with the state, they either don’t appoint you or don’t elect you. If you sneak by, they remove you.

    May God bless Judge Harold Baer and may his memory for a blessing.

  13. Andrew,

    I agree that the cynicism is less apparent at the district court level. But, my experience tells me that it is still there. Anyway, it would be nice to have Gallup sample about the People’s trust in federal district judges.

    All the best.

    RGK

  14. Criminal sentencing is an area where federal courts are intentionally non-transparent. How sentencing guidelines are calculated, whether they depend on loss amounts in fraud cases or drug amounts in drug cases are not disclosed to the public. If issues are contested, at sentencing a person might be able to attend the hearing and figure out what is going on. However the pre-sentence report, which often contains all the information the judge has to impose a sentence is off-limits.

    There may be information (such as health history) in pre-sentence reports that should be non-public. But it seems that at some point the federal courts decided that the reports were confidential and that was that. Even crime victims don’t get to see them. It has always surprised me that news organizations were not more aggressive about seeking disclosure. The offense conduct and guideline calculations portion of every PSR ought to be available, subject only to the usual rules for sealing court documents.

  15. Bryan,

    Excellent point.

    The primary justification in my mind for keeping the PSR sealed is to protect cooperators. It is not apparent from the outside, but we are seeing an increased attempt by the “shot callers” in prison to get copies of PSRs in an effort to enforce the “no snitch” mantra of such folks. Otherwise, I am all for making the PSR and Statement of Reasons (SOR) public in most cases. Redaction of personal identifying information regarding third parties could be used where necessary.

    Our court has also taken certain measures with plea agreements but I am not a liberty to discuss the details. Suffice it to say we are sensitive to the public’s need for access and the defendant’s personal safety concerns and our relatively new measures try to strike the correct balance.

    All the best.

    RGK

  16. One easy reform for judicial openness would be to make PACER free of charge, and have a public API allowing people to access the records automatically. That would facilitate tons of research into the behavior of the judiciary, as well as making it much easier and cheaper to find information about the courts.

  17. Peter H.,

    In a move I strongly supported, researchers can now obtain what amounts to waivers. That is:

     Courts may exempt certain persons or classes of persons from payment of the user access fee. Examples of individuals and groups that a court may consider exempting include: indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions. Courts should not, however, exempt individuals or groups that have the ability to pay the statutorily established access fee. Examples of individuals and groups that a court should not exempt include: local, state or federal government agencies, members of the media, privately paid attorneys or others who have the ability to pay the fee.
     In considering granting an exemption, courts must find:
    o that those seeking an exemption have demonstrated that an exemption is necessary in order to avoid unreasonable burdens and to promote public access to information;
    o that individual researchers requesting an exemption have shown that the defined research project is intended for scholarly research, that it is limited in scope, and that it is not intended for redistribution on the internet or for commercial purposes.

    See Electronic Public Access Fee Schedule at paragraph 9 (effective December 2, 2013).

    For everyone else, I am afraid that making the system free is too much of a stretch for budgetary purposes.

    All the best.

    RGK

  18. Making PACER free is a stretch for budgetary purposes unless a corresponding appropriation covered the shortfall. My proposal would be for Congress to change the statute and make it be free, and give the (really not all that large) amount of money to the judiciary to cover their operating costs as a public service.

    The fee exemption for research is nice, but having it be free with an API would be miles better for the public. As it stands, each researcher needs to interface directly with PACER to get the information they want. There’s no way to scrape all the info and then manipulate it in your own database. Using a fee exemption to try that got Aaron Swartz investigated by the FBI.

    That last bit about redistribution on the internet was put on after Swartz tried to scrape PACER and put it on the internet. The benefit to the public of the full contents of PACER being on the internet would be massive though, and from a pure public policy standpoint, is worthy of being paid for from general tax revenue.

    Of course, I recognize that anything containing “My proposal would be for Congress to…” is a nonstarter currently.

  19. Ken Smith’s situation seems concrete to me. Do you think a judge who would lose his house if he ruled for the other guy would ever rule for the other guy? Or that he would present the law and facts honestly?

    Judges sat in judgment of their own case, and no judge sees anything wrong with that. Other judges could have heard his case, but judges with personal financial interests did. I still don’t understand how your colleagues could have let that go, or why you don’t think it is as obviously wrong as I do.

  20. Didn’t the Framers place that trust in the jury? I remember reading where they preserved the jury trial because they couldn’t trust judges.

  21. Judge Duckman, you would know this far better than I, but am I the only one who is shocked by judges sitting in judgment of their own case, and that none of their colleagues found this troubling enough to mention? Are you as surprised as I am by Judge Kopf’s continued silence?

  22. Judge:
    I’m all for more transparency rather than less. My best guess as to how to achieve this would be to allow the functional equivalent of CSPAN to televise the goings on in the federal judiciary. This way you could have the complete televising of what happens in the federal courts without the very real danger one sees on the commercial networks of editing stories to promote that which is sensationalistic (and which, by its very nature, would give a skewed view of things).
    Robert

  23. Robert,

    There are problems with CSPAN in that they could never cover all the federal courts. On the other hand, each federal court has or could easily acquire digital audio and video and upload to the existing CM/ECF system with very minimal cost. That’s why I suggest this alternative as the easiest solution.

    All the best.

    RGK

  24. I think you are oversimplifying things.

    The Framers did not mistrust federal judges, who they gave lifetime tenure to. They mistrusted power. So they tried not to give any institution too much of it. As a result, juries–i.e., the people–were given critical roles in criminal and civil proceedings. But to say the fact of juries means the Framers mistrusted judges is to say the fact of judges means the Framers mistrusted Congress. It’s too simple a statement.

  25. I think that the person who just watches the news gets not only an opaque, but a incorrect view of the typical courtroom.

    I interact with the courts frequently as an expert witness — I am a child abuse pediatrician. Typical everyday cases are pretty humdrum. All the parties pretty much know what everyone is going to say and — perhaps except for a few sticking points — have a pretty good idea of what the fact finder is likely to think about it. In my opinion the humdrum drudgery of daily court work dispenses as good an approximation to justice as we are likely to achieve in a system made from humans.

    It seems to me that when the media shows up, and everybody is watching, the courts do their worst work. The “personality” attorneys show up. The court becomes merely the focal point of the surrounding circus. Juries do strange things that seem inexplicable, at least to someone who only saw the case on the news.

    In summary someone who only court exposure comes from CNN would see a very different justice system then the one that I regularly see testifying in civil child protection cases.

  26. Judge,
    Here’s an interesting question. If all hearings would be recorded, would the jury have a right to access them during deliberations? If so, how would you ensure that they only view the parts of the record they were present for?

  27. I’m not familiar with the case you’re talking about but I suspect everyone reading this blog is in agreement that judges should not decide cases they have an actual financial interest in.

    That said, it is not fair to expect Judge Kopf to write about any particular case (which his own ethical obligations would likely prevent in many instances, even if he were so inclined). He doesn’t owe us commentary; in fact, he doesn’t owe us anything. Through this blog–an absolute rarity among judges–he has given us more candor about judging than we’ll ever get from 99.9% of the judiciary. I feel compelled to ask that we not punish that by demanding even more.

    All of that said, if you want Judge Kopf’s views on judicial conflicts of interest, he has blogged on the matter a number of times. It is easy to reasonably extrapolate from there.

  28. Good question.

    I already use digital audio and not a court reporter. The digital audio of the trial is uploaded to CM/ECF each evening. Jurors do not have ready access to CM/ECF during the day and they are instructed not to attempt any such access at any time. Nearly 10 years have passed, and I have never had a problem.Thus, if we added digital video to the record (digital audio and digital video together) and if we uploaded that package to CM/ECF, our trials would be utterly transparent.

    All the best.

    RGK

  29. Doctor,

    I agree entirely. That is why the court should provide digital audio and video of the complete trial of every case on CM/ECF. All the best.

    RGK

  30. Judge, I’m sorry, but I think the confidence of a great many intelligent people in the federal judiciary was lost a long time ago. I know it was for me. It can be blamed not merely on the judiciary, but on legislative mandates turning judges into automatons. A federal judge satisfies himself with apologizing to a defendant about a sentence, but then does nothing to vocally protest—and I am talking resignation, rather than being part of an unjust verdict, or for decades participating in essentially mandatory sentencing “guidelines” which are now purportedly advisory–depending on what circuit you are in, I’m told by some defense attorneys.

    This was not necessarily intended as a legal argument, with hypotheticals my attorney friends always like to pose, rather a moral opinion of a deeply held belief and an explanation of why I feel the way I do.

    As you know, judge, I am not an attorney. I’m sure all sorts of arguments can be made regarding the need to have someone at the helm deciding the cases. I doubt however, that 99% of the public is aware of what the mandatory sentences are for various offenses and would be startled at their application.
    As an example I present to you a case involving a series of 9 convenience store robberies in 3 days in Las Vegas involving a weapon, but in which nobody was injured. The state turned it over to the feds, and , well, ya know, the gun charges were stacked and we ended up with a 237-year sentence.My AUSA friend has no problem at all with this sentence so I suppose there is a big segment of the population that feels the same way. This is just one example of many criminal penalties of which I am aware. That case may be an outlier, but there are way too many people in federal prison for far too lengthy periods.

    This stuff doesn’t engender confidence. Yes, it’s the legislature’s fault. But judges are participatory and I think anything short of some form of mass protest isn’t going to be effective.
    If that’s not “destroying the system” it’s at least bringing it to a grinding halt.
    Please tell me what would happen if you refused to hear cases where you felt the potential sentence was unjust. I have no idea. Could you be removed? Is that what it might take to clear the prisons of people who don’t belong there or who have exorbitant sentences.?

    And yes, you know me, full of frivolity….but I’d hate to be involved as a defendant in a federal criminal case.
    I’m curious how many times you have personally felt a sentence you imposed was unreasonably, perhaps egregiously lengthy…………………………………………

    (and if I sound pissed judge, well, that’s owing to some losses in municipal bonds that I’m taking out on you)

    Now, back to sending you jokes.

  31. Don’t the Justices comment on old cases all the time, Julian? That is just silly, even to a layman like me.

    The Judge asked for something “concrete.” A case that is nearly ten years old, occurring in another Circuit, should meet that test.

    Denouncing “judicial activism” is like denouncing the torture of baby kittens. It is easy in the abstract. But having to justify an instance of clear judicial misconduct which his colleagues had a part in is not as easy. It’s proof that the system failed on account of intentional judicial misconduct. If the judiciary behaves like this, why shouldn’t it lose the support of the people?

  32. You may recall this open e-mail to you. I was one of the many copied on it, as it has made the rounds.

    “How long does it take you to read 323 words?

    With all respect, Judge Kopf, you don’t need to know a thing about the merits of my case to spot a procedural due process violation; all you need to know is that state supreme court justices who were named as defendants in a tort claim purported to decide the appeal. As “it certainly violates the Fourteenth Amendment … to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case,” Tumey v. Ohio, 273 U.S. 510 (1927),[1] the only way it could not be a violation is if one of two recognized exceptions applied.

    The first is the ancient “Rule of Necessity,” providing that “wherever it becomes necessary for a judge to sit even where he has an interest —where no provision is made for calling another in, or where no one else can take his place—it is his duty to hear and decide [a case].” United States v. Will, 449 U.S. 200, 214 (1980) (citation omitted). In Colorado, judges of the Colorado Court of Appeals are authorized to “serve in any state court with full authority as provided by law,” Colo. Rev. Stat. § 13-4-101, and it is a consistent practice in other states with analogous statutory or constitutional provisions for conflicted supreme court justices to recuse.[2] As non-conflicted judges could have heard my case, the Rule of Necessity cannot apply by definition.

    The second, you mentioned: “The judge should not remove himself or herself if there is reason to believe that the judge was named only to cause the judge to disqualify himself or herself.”[3] But as my original lawsuit was filed in federal court, and the only reason it ended up in state court at all was owing to pendent jurisdiction, this exception cannot apply, either. Ergo, if it exists, my absolute right to procedural due process[4] was violated.”

    There it is. A “concrete” example of judicial misconduct, brought to your personal attention, complete with footnotes. How can anyone see a case like this and not remain cynical? Is there anyone here who believes it is appropriate for any judge to sit in judgment of his own case under these facts? And why does a judiciary that would do this deserve the support of the people?

  33. I am confident that most Catholic priests don’t sexually molest boys. But does that mean that we should give the Church a pass when it actively covers for those who do?

    How you police your own matters.

  34. Traderprofit,

    I am sorry about your muni-bonds! Now, I, too, will be serious.

    I agree with you that the old Sentencing Guidelines regime frequently required sentences that were too high. That is much less so now. On balance, I prefer the present Guidelines regime because (1) I don’t believe that judges are especially good at sentencing and, as a result, require firm direction from people who spend their lives (the Commission) thinking about such things; and (2) avoidance of sentencing disparity is the best justification for the present advisory Guidelines approach.

    When the Guidelines were more or less mandatory, I imposed a mandatory life sentence on young black woman, who was pregnant, who had two other children, who had no criminal history and who facilitated the sale and delivery of a boatload of crack (multi-kilos) between Oregon and Nebraska. I later urged two Presidents to grant her clemency without success. There were several other cases during this time that I thought were quite excessive as well.

    On balance, the Guidelines framework as it now exists is worth keeping because judges actually have the power to deal with the cases you so rightly attack. That the federal judiciary has been damaged in the minds of most of the public because of the Guidelines may be correct, but I am not so sure. I do know that the Supreme Court took far too long to straighten this mess out, a fact that I bitterly complained about in an essay that got wide spread attention in the legal community. I was not silent.

    That is the best I can do with the time that I have this evening. Thanks for your engagement. I mean it!

    All the best.

    RGK

  35. So many things here….

    1) Yes, judges comment on old cases. I wouldn’t say they do so “all the time” (outside of what they say in judicial opinions), but it’s not infrequent. I didn’t say, however, that it’s not fair to expect the Judge to comment on any old cases. I said it’s not fair to expect him to comment on any particular case.

    As to any particular case, he may not be familiar it. He may not be able to discuss it (you or I wouldn’t know). Or he may simply not wish to comment for any number of non-nefarious reasons. Silence does not speak volumes. It especially does not speak volumes in the context of a blog that routinely offers critiques of the judiciary.

    2) It bears noting that you and I are commenting anonymously. We could say almost anything without consequence. Not so for a sitting judge writing in his own name. He has considerations to account for that you or I do not.

    4) The fact that the case you want denounced is 10 years old and out of circuit indicates to me that the case is probably an exception, not a rule. It may or may not have been judicial misconduct–I don’t know anything about it–but one case a systemic crisis does not make.

    5) As far as I can tell, the Judge made no attempt to either justify judicial misconduct or argue that misconduct never occurs. To the contrary, many of the posts on here deal with how the judiciary can and should do better.

    6) It is impossible to read the Judge’s posts on conflicts of interests, and particularly his mea culpas, and reasonably conclude that he does not treat conflicts of interest with the utmost of seriousness.

    Try this: http://herculesandtheumpire.com/2013/10/18/on-being-a-dummkopf/

  36. Ms. Anderson,

    Regarding Mr. Smith, please reread my ban of Mr. Smith. See here and here. Bluntly put, discussing his case ad nauseam in the comment section of this blog was a waste of time and deflected attention away from the primary purpose of this blog. I owe you and your like minded friends no further explanation.

    All the best.

    RGK

  37. No banning for things I think are funny.

    I don’t moderate comments because I want to encourage a free flow of views. But I do have rules. I get tired of the redundant. I worry that serial rants on the same old case suck the air out of this blog for other commentators. I don’t like the nasty and I don’t like comments intended to impugn the integrity of others. This is not the place to debate the correctness of long resolved cases that even if relevant to the purposes of this blog are only tangentially so. When I begin to see comments exchanging personal invective I draw the line firmly and quickly. Almost always, I am personally fair game. All the best.

    RGK

    PS Any Moody’s analyst dumb enough to rate the finances of, and then travel to, Puerto Rico deserves to go to jail.

  38. Stop feeding the troll(s). This is all about a sad man who the Colorado bar found too mentally unstable to admit in the early 2000s. Ever since he’s been suing various judges (and then suing the judges who rule against him in those cases), and populating the internet with cut-and-pasted, sovereign-citizenesque rants about the judiciary. I’m not sure if we’ve ever been treated to an explanation of why he was singled out for this lifelong judicial vendetta, but I’m sure there’s one somewhere.

    Unfortunately he found this blog and, after being banned, continues to post under other names (at least, I’m guessing he doesn’t actually have multiple friends who appeared for the first time right after he was banned and are so interested in his plight to pursue it for months on end here).

  39. Bryan,

    It is a reality, but one that is becoming much more dangerous if what I hear from prisoners and their lawyers is true. All the best.

    RGK

  40. Is it easier to be opaque than transparent? Some information is confidential and other information is not and it takes time to sort them. If you classify all information as confidential then you reduce your work load.

  41. I agree that being secretive is easier than being open. But that does not strike me as a very good reason to be secretive.

    All the best.

    RGK

  42. Jay, are you truly so naive as to believe that a judge who would sit in judgment of his own case would deal honestly with the facts or the law? That a judge who could lose his house if he decided for the other guy would decide for the other guy?

  43. I don’t care about the case. You asked for a concrete example, and I gave you two. And you proved my point. Judges won’t criticize their own.

  44. Pingback: We Have No Secrets | Simple Justice

  45. Can we use the words “transparent” and “PACER” in the same sentence; given the latter’s fee structure?

    I applaud Carl Malamud’s efforts, but they should not be needed; the court system should cease using PACER as a profit center, & instead use it as openness one.

  46. George B.,

    I agree but that won’t happen in my lifetime. With the exemption for scholars now in place, half a loaf is better than none. All the best.

    RGK

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