JUDGING CRIMES

(Here's part 1 of this epic.)

How can you tell when a judge is up to something?  One sure giveaway is the emotive adjective or adverb.  I always tell my students that the strongest argument is the quietest: "The Supreme Court just decided this issue last week."  You don't have to raise your voice or work on anyone's emotions on those rare occasions when the law has truly boarded up all the escape routes.

When federal judge Jerome Frank went on about the "satanic" police serving the "brutalistic" regime in Coney Island, it was because he couldn't carry the day by calmly setting forth the facts and the law.  The hysteria (or, if you're feeling generous, faux-hysteria) of his language was intended to justify the result he reached. 

As a federal judge, he had no authority to substitute his view of the facts for those of the jury and New York state judges, but he got around that by claiming the Nuremberg defense in reverse: I was only disobeying orders.   If he had discussed the facts calmly, as the federal district judge had done (see post 338), it would have been obvious that he wasn't, after all, faced with the same moral imperative as an Auschwitz prison guard.

When Noia's case was argued (and argued) before the Supreme Court, it fell to Justice Brennan to explain why a congressional statute that said "shall not" meant "may."   (See post 339.)  To do so he reached deep into his bag o' modifiers:

Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.   Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

Pretty affecting, isn't it? -- so long as you keep yourself from remembering just exactly how society "grievously wronged" Noia: it allowed him to confess to a murder, a confession that the jury found to be voluntary and which was corroborated by the confessions of his two co-conspirators, and then it allowed him to choose not to appeal his resulting conviction. 

Fay v. Noia was a 6-3 decision, with Justice Black in the majority.  Harlan, Stewart and Clark dissented.  Six years later, however, the composition of the Court had changed with Thurgood Marshall replacing Clark and Abe ("Pete Rose") Fortas replacing Goldberg.  

When he wrote the majority opinion in Kaufman v. U.S., Brennan didn't need either Goldberg or Black, and so he could dispense with the cloak of humility.  Black dissented in Kaufman.  In response, Brennan wrote that habeas corpus "contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process."

The second part of that sentence is very important, for reasons given below.  But look again at the first part: have you ever seen anything so exquisitely devoid of meaning?  Just think for a moment about how you'd go about "contributing" the capacity to live, grow, or develop to an inanimate object.  The real significance of that  string of words becomes apparent only when you look at what it was written in response to.  In his dissent, Black had written:

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom "society has grievously wronged and for whom belated liberation is little enough compensation."

Black was quoting Brennan's own words of six years earlier.  He was even using Brennan's rhetorical trick of starting his sentence with "Surely."  Brennan's response - that bit about contributing to the vitality of an abstraction - was his way of breaking the news that he hadn't meant a single word of his heart-tugging peroration in Fay v. Noia.  Whether or not Noia had been a "victim," one "whom society has grievously wronged", was entirely beside the point.

Because, according to Brennan, the accuracy of a verdict should not distract one from the real purpose of habeas corpus, which has nothing to do with justice to any individual.  Rather, its purpose is to provide a mechanism for enforcing constitutional rights "whether or not they bear on the integrity of the fact-finding process." 

That means: whether or not a criminal is truly guilty of killing or raping or robbing another human being.  It also means: whether or not the freed criminal will interpret his liberation as permission to kill, rape and rob some more.  It means: justice, either to the individual defendant or to his past and future victims, isn't the goal of our justice system.

The goal, for Brennan, was the concentration of power in the federal judiciary.  And if you think that's going too far, remember that Justice Brennan is also the judge who wrote that a federal judge has the "inherent power" to act as prosecutor, victim and judge in the same case.  That code phrase "inherent power" means power not granted by the Constitution, of course.  (See post 32 and post 261.)  

Brennan was committed to a vision of a nation ruled by judges.  Fay v. Noia and Kaufman v. U.S. reveal that he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.

I was inspired to set out on this epic by Christopher L. Eisgruber's (see post 333) description of Brennan: "his jurisprudence depended so thoroughly on functional considerations about the judiciary's role as a defender of vulnerable minorities and individuals".  

This is yet another example of Eisgruber's uncritical adoption of every received idea about the law.  (See post 329.)  The chief distinguishing feature of Brennan's jurisprudence was his utter contempt for the most vulnerable of individuals, those whose vulnerability was objectively demonstrated, a grossly disproportionate number of whom were members of minority groups: victims of crime.

What Eisgruber is referring to is Brennan's sentimental rhetoric in such cases as Fay v. Noia.  That rhetoric was, indeed, in tune with the received ideas of law professors of the era - that was why Brennan wrote like that. 

What Eisgruber overlooks, because it's impossible to reconcile with what his professors told him and he's unable to consider the possibility that his valued mentors could be wrong, is Brennan's occasional confession, in cases such as Kaufman, that he didn't mean a word of his own gushing stuff.  He wrote like that because it worked: it successfully manipulated those same unsophisticated professors and assorted naive journalists into accepting the judiciary's authority to shrug off attempts at control by what Brennan called "the political branches" -- his perjorative term for democracy.

In 1972, Noia was arrested for conspiracy to transport stolen Post Office bonds.  He told both the arresting officer and the judge that he was the Noia, but I haven't been able to find out what happened to him after that.

It's rare that a story about a judge manages to be both too bizarre and too vague for inclusion in this Judges' Hall of Fame, but the celebrated story of Cleveland, Tennessee's Judge John B. Hagler is very nearly disqualified on both counts.  The newly-exed ex-judge did something very, very, you know .... bizarre.  But so far his former colleagues on the bench are preventing us from finding out exactly what. 

What we know is this: The judge gave a tape to his former secretary, Nona Rogers, who worked with him for 18 years, accompanying him from private practice when he was first ennobled.  Ms. Rogers said that when she first listened to the tape, thinking it was routine dictation, "I shook all over. I was just numb."  Not, one gathers, the usual findings and conclusions.

Here's a clue as to its contents:

"It sounded like someone being tortured," Chattanooga police Sgt. Alan Franks testified Wednesday, offering the first details of what is on the tape.

Franks said the recording was investigated in relation to a still-unsolved 1997 murder. He gave no other details on the murder case.

"The content was so shocking. I have been a police officer for 24 years," Franks said before his testimony was cut off by an objection.

Ex-Judge Hagler himself "has refused to say what is on the tape other than to acknowledge it contains 'graphic fantasies.'"

Apparently, the tape has some connection with the still-unsolved murder of a 35-year-old Episcopal priest, Charles Martin Davis, usually called Marty Davis in the Tennessee media.  Father Davis was beaten and shot either 6 or 7  times, "depending on whether the gunshot wound to the anterior neck is considered a re-entry wound from the graze gunshot wound to the chin".   That last is a link to the autopsy report, which reveals no alcohol, no drugs, no sexual assault.   Not even robbery was a motive, apparently, as money was left in the house.

Does that strike you as promising material for graphic fantasies?  Well, remember that Judge Hagler went to  Father Davis's church, and the two visited and talked on the phone.   So Hagler wasn't just recording his graphic fantasies about violent death - he was fantasizing about a friend's violent death.  Then there's this:

Authorities have said Judge Hagler is not a suspect in the murder of Marty Davis, but Chattanooga Police said they want to hold the Hagler tape because if anyone is ever charged in the Davis case the defense may want it for "exculpatory evidence".

It's hard to keep at bay the thought that the opposite of "exculpate" is "inculpate," and that if a judge's private tape could exculpate another person then it must logically inculpate the judge.  How else could be possibly be Brady material for anyone else?  And, oh, yeah.  One other thing.  Father Davis was "chairman of the gay ministry Integrity" while ex-Judge Hagler teachers a Bible class at the Episcopal church Father Davis attended.  

But wait!  We haven't gotten to the bizarre part yet. 

Hagler, before his resignation became effective, issued a statement which read, in part:

Any decent person, myself, would be disgusted to hear my words as spoken on the recording.  Although I have never been afforded an opportunity to listen to this tape, I believe that the description of it as containing "graphic fantasies" in the Times Free Press is an accurate and sufficient description and all any decent person would want to hear of it.  But any decent person would also conclude that public dissemination, beyond the description previously given, can serve no legitimate public purpose and can only hurt, and continue to hurt, my family and me.

If you were a decent person, yourself, you would have no curiosity about the tape.  This strikes me as rather like Jeffrey Dahmer deploring the poor taste exhibited by a media that insisted on running sensational accounts of cannibalism:  "Any decent person would be satisfied with the information that the persons named in the news reports are no longer living."

Except, of course, that Jeffrey Dahmer didn't exercise immense power over the lives of Milwaukee's citizens for 17 years.  

But, see, that makes it worse that people began know about the pleasure Hagler takes in recording for posterity his fantasies of extreme violence.  Because, he said, an attack on him was an attack on the judiciary:  "This, not a judge's sinful but legal conduct, is the story".   Shades of the "great man" theory of criminal libel.

Remember that allowing the public to hear the tape would serve no purpose other than to "hurt, and continue to hurt, my family and me".  Given that, one might wonder how he could, in the same statement, claim that the tape was an attack on "one of our essential public institutions, the Judiciary".  

The answer, of course, is that Hagler was a judge for a long time.  And for a certain type of judge words are just the wrapping paper concealing the exercise of power.  Complaining about such a judge's self-contradictions is like complaining that the pattern doesn't line up where the paper overlaps itself. 

But now we come to really bizarre bit:

Members of the bar associations in the 10th Judicial District voted today to ask the U.S. attorney to look into how information became public about an audiotape that prompted the district Circuit Court judge to resign Tuesday.

In a joint meeting, bar association members from Bradley, McMinn, Monroe and Polk counties asked the U.S. attorney to become involved and investigate whether the surfacing of information "was an attempt to improperly influence the administration of justice." ...

The members also passed resolutions supporting Judge Hagler and saying that the tape and any copies or transcriptions should be returned to him.

So while we don't know exactly what Judge Hagler said on the tape, we do know the lawyers of southeastern Tennessee considered it well within the acceptable range, at least for judges. 

John Ferling's book Adams versus Jefferson: The Tumultuous Election of 1800 is one of those books of serious popular history that requires you to first plough through a prolonged introduction designed to bring up to speed everyone who dozed through 10th grade history.  But once you get past the World Book-style pen portraits of the protagonists - and so long as you can tolerate the author's spendthrift use of derogatory adjectives to describe James Madison - you can find a lot of information and insight. 

While the judiciary as an institution is hardly mentioned, Ferling provides this extremely useful summary of the dominant political outlook of our third branch (well, third in the order in which it's mentioned in the Constitution, if in no other sense):

[A]s was true of most Federalists, [John] Adams was alarmed by signs that America was democratizing. Before political parties existed in the 1790s, Adams had published warnings about how partisan electioneering – what he called the "Cankerworm" that had brought down every previous republic – would corrupt the American political system.  When caught between powerful rival interests, democratic politicians inevitably would be driven to deceit, he had predicted.   Virtue and integrity would vanish.  Revenge and malice would prevail.  Voters would be duped and the press misled, pushing the system toward an unsavory end – a democratic tyranny in which the majority plundered the minority.  For Adams, the notion that government could realize the will of the people was disingenuous.  Society was divided into so many competing interests that a single popular will seldom existed.  Furthermore, while humankind was all one species, Adams insisted that "Man differs by Nature from Man almost as much as Man from Beast."  It was impossible that all could have their way or be fulfilled.  Instead, Adams favored a system in which the brightest and most virtuous men could be drawn into public life but then be insulated from the necessity to pander to the popular thirst.  If somehow the independence of good men could be preserved, so that they could govern prudently and judiciously, the result would be good government for the greatest number.

Those last two sentences come closer than anything else I can remember reading to describing the politics of the judicial branch. 

Most judges don't see it as a question of politics, I think.  At most, they might grudgingly admit that those two sentences capture something of their idealized self-image.  They might even say that they "strive" (a favorite judge's word) to achieve that ideal.

But the Federalist concept of good government is politics, all right.  It's big-picture politics, not the poll-tested where-we-stand-on-the-issues politics of "pander[ing] to the public thirst", but politics all the same.

All the tedious, predictable studies about "drifting" Supreme Court justices look at the issues between the parties and ignore the meta-politics of the Court itself.  Supreme Court judges "drift" in only one direction: toward greater concentration of power in "the brightest and most virtuous men" (and, grudgingly and only lately, women) in the name of preventing "democratic tyranny" - although the justices and their lower-court servants prefer the adjective "majoritarian."  (See post 54.)

The odd thing about Ferling's book is that he seems to think the Jeffersonian Republicans won the election of 1800.  For the first 28 years, that was true enough.  But looking back on it from the perspective of 207 years, it seems obvious that the Federalists are in charge.

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

Is it more important to have a good reputation or to deserve one?  Florida's Judicial Qualification Commission doesn't find that a difficult question to answer.   Obviously, the important thing is to preserve the reputation.  Asking whether it's deserved is unethical.

Here's a news story describing the Commission's recent decision to go after First District Court of Appeals Judge Michael E. Allen.  Howard Bashman of HowAppealing devotes a typically thoughtful Law.com column to showing some of the way in which the complaint against Judge Allen is "outrageous ... laughable ... absurd". 

Those adjectives are so strong that one's first inclination may be to assume they're the kind of overstatement endemic to baby lawyer briefs.  Lawyers just out of law school, like middle school girls learning about makeup, tend to overdo it, and not by a little bit.

But Bashman is, unlike certain other bloggers I could name, consistently polite and respectful to the judges he writes about.  "Laughable" is, in this context, a factual description: the Commission alleged that Judge Allen breached his ethical duty to perform his judicial duties "without bias or prejudice" by exhibiting prejudice against a fellow judge. 

No, really.  They really said that - a judge's ethical duty to avoid bias and prejudice doesn't refer to the judge's attitude toward parties, or even lawyers, but to his or her colleagues on the bench.  And "prejudice" in this context means drawing reasonable inferences from known facts, when those inferences suggest unethical conduct by another lawyer - if, that is, the other lawyer also wears a robe.  A judge's overriding ethical duty is to pull the plug on that portion of his or her brain that recognizes ethical lapses.  Anything else is prejudice.

It gets even funnier.  The Commission alleged that Judge Allen acted unethically by citing to a newspaper articles in a judicial opinion.

I swear I'm not making this up.

What makes this even more hilarious is that the Commission alleges that by citing to newspaper articles as evidence of "what the 'public' would believe and not believe" - those quotation marks are in the original, no kidding - the judge "undermined public confidence in the integrity and impartiality of the judiciary".  

Given that referring to public sources of information is an invalid way to gauge what the quote public unquote might think, what contrasting source of information did the Commission itself use to support its allegation that the no-quotes-needed public's confidence had been undermined?  The Commission did its sociological research the old fashioned way.  It just made it up.  (See post 139.)  That's what judicial ethics is all about.

The Commission alleges that Judge Allen's act of questioning a colleague's integrity "was contrary to your duty to observe high standards so that the integrity and independence of the judiciary may be preserved."   The way to ensure that the integrity and independence of the judiciary is preserved is ... to not question the integrity (or independence?) of the judiciary. 

"Integrity", in the Commission's conception, is a synonym for "a reputation for integrity."  Whether reality corresponds to the reputation is, as any reader of Carl Hiaasen's Florida novels ought to have known to expect, irrelevant.

So Florida judges have been put on notice that to question the ethics of a fellow judge is itself unethical.  The real heart of the Commission's complaint against Judge Allen is this sentence: "If the matter was as serious as your concurring opinion indicates you believed it to be, you should have reported the matter to the Judicial Qualifications Commission rather than publishing your attack on Judge Kahn, which undermined public confidence in the integrity and impartiality of the judiciary." 

Obviously, that's a very large part of what the complaint is about.  The Commission wants to be the sole clearinghouse for bad news about the judiciary.  More than that, it wants a monopoly on the power to decide what news is bad.  Florida judges aren't supposed to think independently about matters such as judicial integrity.  To do so only undermines the independence and integrity of Florida judges.  Rather, judges should fall into line behind the Commission, accepting it as the ethical oracle. 

That also explains the Commission's proceedings against Judge Cliff Barnes for "writing an article as a guest columnist for a local newspaper".  He, too, was accused of not limiting himself to reporting his concerns to the Commission.

But I suspect that the Commission's turf-protecting hypocrisy isn't the whole story.   Judge Allen was questioning his fellow judge's enmeshment in Florida's good-ol'-boy's network.  It's hardly subversive to suggest that judicial disciplinary boards, being answerable to the very judiciary they're supposed to investigate, tend to define "ethical" in terms of enforcing the status quo.   After all, to do otherwise would be to suggest ethical shortcomings in the source of their own power.  What did the robot used to say while flapping its arms? 

In short, I suspect - in a way that would be utterly unethical for me to voice out loud, were I a Florida judge - that a significant part of the Commission's mission is to facilitate unethical conduct by members of the state bar's in-group. 

But - and this is the crucial thing - we know about it only because the Florida Commission is the most transparent  judicial conduct board in the nation.  That strongly suggests it has the least to hide.

No matter how many times the Supremes tell us that it's just too tacky to imagine them doing anything quite so infra dig as merely deciding cases (see post 7), it's very difficult to break the habit of thinking of the Court as a court.

It's easy to fall into the trap of thinking that Massachusetts v. EPA was a case about greenhouse gases, or that the recent death penalty cases out of Texas were cases about the death penalty in Texas.  In fact the Court's decisions had almost nothing to do with those particular subjects.  Almost nothing, because the subjects lent themselves to many pages of narrative prose, which in the military is called the deception strategy. 

In the run-up to the first Gulf War, the Marines spent many days practicing amphibious landings in front of CNN's cameras, while the Army, far inland, prepared its actual advance across the desert -- an attack that met little resistance because Saddam Hussein's troops were stationed to repel the Marines that their TV-viewing had conditioned them to believe would soon be splashing out of the waves. 

In the same way, the Supreme Court typically devotes many pages of its opinion to detailing the facts of a given case before announcing rules of universal application.  But the Court's disposition of the particular case is rarely more than an illustration of how the new rules work - and often enough it's not even that but a rarely-to-be-repeated anomaly.  (See post 228.)  Judging a Supreme Court case by its facts is like judging an instruction manual by the artistic quality of its line drawings.  The critique isn't invalid, exactly, but it misses the point.

To bring the analogy a little closer to home, the facts of a case decided by the Supreme Court might be compared to the affecting anecdotes that congressmen invite witnesses to tell during televised committee hearings.   Listening to a family farmer talk about the daily struggle to make ends meet on grandpappy's homestead is, admittedly, more enthralling than the details of cotton subsidies, but the two really don't have much to do with each other. 

The media, which likes stories, will report on the facts of a Supreme Court case while all but ignoring the actual decision rendered by the Court. 

The real point of the EPA case is summed up by Max Schulz at the Manhattan Institute: "It merely increases the power of the unelected judicial class to make the laws our elected representatives at all levels should be making."   That's not an effect of the ruling.  It is the ruling. 

The issue being decided was not whether greenhouse gases should be regulated, or even whether the EPA had fulfilled its duty under the law to decide whether or not they should be regulated (which is more or less what the Court actually said - in technical legal terms, the ruling was pretty much a writ of mandamus, except that a writ of mandamus would have been improper, so they couldn't call it that).  The issue was whether the power to make that decision should be exercised by judges or by elected officials.

With respect to greenhouse gases and the Bush EPA, the effect of the ruling is less than zero, since the EPA's front office will be restaffed in just another 20 months anyway, and even the least-competent Washington bureaucracy can stretch out any rule-making process that long.

For environmentalists, the prospect of our national environmental policy being administered by Bush's EPA until January '09 is pretty alarming.  I think they need to start worrying that it will be be administered by Bush's federal judges for the next half-century. 

If you devoted time to the project of inventing the most ridiculously inefficient system of environmental regulation imaginable, I don't think you could top the federal lawsuit, which after years of litigation can, at most, determine that an executive branch agency failed, long ago, to fulfill the legislative branch's will. 

The court can attempt to remedy that failure by ordering the executive branch agency to buckle down, and then for the next 10 or 20 years the focus of the litigation will shift to the question whether the executive fulfilled the judicial branch's will.

This type of litigation quickly begins to resemble a fractal generator, patterns endlessly subdividing into smaller patterns forever.  The original point is almost instantly lost.  Just think for a moment about how many consent decrees have been entered into in the past 30-40 years.  And now think about conditions inside American prisons, the quality (and racial composition) of our public schools, our society's treatment of the seriously mentally ill, and the way in which we treat children without families. 

I don't mean to imply that the whole experience of judges managing executive branch agencies by court order has been an unbroken record of utter failure.   Doubtless the record has been broken somewhere, and certainly some failures are sub-utter.   Nonetheless, as a broad generalization, I don't think I'm entirely out of line to suggest that judges are not ideal executive branch managers. 

For example, imagine if President Bush announced as his nominee to head the EPA a person who had no post-secondary education in any technical field relating to environmental science beyond biology 101, who had never supervised an organization with more than three employees, and who proposed to work at the agency only part-time. 

At least, if the President had done that, his appointee likely wouldn't go to work in the same black polyester dress every day.

In the Texas death penalty cases, the issue was similarly straightforward.  The Constitution specifically says that Congress has the authority to define the powers of federal courts.  The question before the Court was: should federal courts respect Congress when it exercises that authority?  The Court's answer was: You talkin' to me?  

One can oppose the death penalty – one can agree that Texas's administration of it is a  reflection of a brutally violent culture rather than a corrective to it (see post 62) – even that it deserves to be called all sorts of headline-worthy names such as "lethal injustice" – and still say, even if a bit tentatively or even plaintively: Maybe, I dunno.  Maybe the Court really should try to, you know, obey the law?

All you have to know about the real meaning of the Texas cases is summed up by Chief Justice Roberts (I've gently de-legalesed the following):

This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. ...  Under the [governing statute], a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant and anoints that case as the one embodying "clearly established Federal law."

Of course the majority opinion (written by Justice Stevens) didn't really mean that the one case was clearly established federal law while the other four weren't.  All the majority meant was:  You can't stop us.

Admittedly, the following news story would get better traction in American media if San Francisco, the site of the American Bar Association's 2007 annual meeting, were substituted for Lahore:

Police stood ready in major cities to act against angry lawyers and succeeded in keeping the protests under control in all cities, except in Lahore, where they baton-charged lawyers breaking through police barricades, causing injuries to 40 and arresting about 25.

Aristotle divided the world of poetry into the comic, the tragic and the epic.  Here in America, lawyers, whenever they gather in large groups, show a strong preference for the comic.  The ABA's House of Delegates, for example, is reliably good for a laugh, although it's the same joke every year: the cosmic disparity between the delegates' self-importance and the utter indifference of everybody else in the world.

In Pakistan, however, it's not yet certain if we're in the midst of a tragedy or an epic.  The Sydney Morning Herald has a striking photo of tear-gassed suited lawyers bathing their eyes in a public fountain, dating from yesterday's second day of rioting.  The Morning Herald also provides some much-needed background for those of us coming late to the story:

The second day of clashes between police and lawyers on Saturday over the suspension of Iftikhar Chaudhary on March 9 prompted the President, Pervez Musharraf, to say conspirators were stirring up trouble.

The attempt to get rid of Justice Chaudhary has united disparate opposition parties against the President.

Justice Chaudhary's suspension fuelled suspicions that General Musharraf feared the independent-minded judge would oppose any move by him to retain his role as army chief, which constitutionally the President should relinquish this year.

Pakistan's English-language paper Dawn is all over the story, with at least six articles in today's edition.  Bloggers have picked it up, with Swaraaj Chauhan at The Moderate Voice providing an overview and a link to an extremely useful, short background article from the South Asia Analysis Group.  It should not be surprising that the story intertwines at least three familiar Pakistani themes: corruption; military dominance of government; and CIA / al Qaeda.  A long list of possible explanations - politics is not simple in Pakistan - is offered at Chowrangi.

Mayank Austen Soofi at Blogcritics tells President Musharraf how he can still save the situation.  (I like the name of Soofi's own blog, Ruined by Reading, and can recommend his compilation of sex tips from Jane Austen.)  (Come to think of it, isn't "Austen" an unusual middle name in New Dehli?)  And speaking of unusual names, Teeth Maestro lays it all out in a single breathless sentence:

There is no doubt in any ones mind that Chief Justice Iftikhar Mohammad Chaudhry was corrupt to some degree, and the all mighty and powerful (read Musharraf) actually believed that taking him out would have been an easy walk in the park, it would not be any more difficult then the coop he served up to roust the Pakistani hero Abdul Qadeer Khan, Musharraf I felt honestly believed if he could get away with Qadeer, Iftikhar was going to be more like easy play dead dogie style rampage.

"So," the Maestro adds, "he took a swipe at the Supreme Court."  My personal feeling is that Musharraf honestly believed it was going to be like easy play dead dogie style rampage, he's getting what he deserved.

What can you do if a state government enacts legislation that clearly - no apologies and no doubt - violates the first amendment?  Why, you wait until a court declares the legislation unconstitutional. 

But what happens if the unconstitutional legislation is enacted by a court?

That's not supposed to happen, given our separation of powers.  But, then, "[i]t will not be denied, that power is of an encroaching nature".  After distinguishing in theory between legislative, executive and judicial power, James Madison wrote in The Federalist that

the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated[.]

The uselessness of parchment barriers is demonstrated by the practice, now universal among state supreme courts, of promulgating rules.  Modern lawyers' lives are so bound around by court-promulgated rules that most don't even know that court-made rules are a recent phenomenon, like zits on a preteen's nose.  Here's a useful short description of the sort of legislation courts enact these days, tracing the history of the practice all the way back to ...  1934.  Blackstone, it ain't.  The modern rules regime is as traditional as a tract home. 

Legislation is easily distinguished from adjudication.  One is forward-looking and of universal application.  The other is backward-looking, applying only to the parties actually before the court.  

A rule issued by a state supreme court is forward-looking, of universal application.  (One might quibble and say it's actually administrative rulemaking rather than legislation, but that just complicates the separation of powers analysis without producing a different result.)

A court that enacts legislation is acting in a legislative capacity.  That, I think, is self-evident.  It's when courts enact plainly unconstitutional legislation that things gets interesting.  Take, for example, Oregon's  Uniform Trial Court Rule 3.120.  It says that "parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try."  (Lawyers are defined as "parties" for purposes of this rule.  UTCR 1.110(1).)

We've learned recently that judges have a first amendment right to hit up lawyers for campaign contributions, even when those lawyers have cases pending in front of the judge.  (The Arkansas Supreme Court recently observed: "While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate's conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise."  [See the Simes decision on this list.]  It's that po-faced word "instructs" that gives the irony its bite.)

If the judge's solicitation of money is protected by the first amendment, how is it even possible to think that the Oregon rule is constitutional?  It prevents a lawyer or a party - a party, just a plain ordinary mossbacked Oregonian - from asking an ex-juror to talk about the only thing they have in common.  The rule is what is known - and here we really are talking Blackstone - as a "previous restraint" on speech, or what's generally called today a prior restraint, and those are prohibited except for reasons as compelling as the prohibition on publicizing troop movements in wartime.  

I don't think it's possible even to argue that the Oregon rule is constitutional as written.  It's not on the border.  It's way out there in the middle of Siberia, about as far from any border as it's possible to get. 

So what's a nice state like Oregon doing with rule like that on its books?

The explanation is one Madison would have no trouble understanding.  According to the Oregon judiciary's website, the rule is enacted by a single person - called, with the proper note of tribal subservience, "Chief."  Yes, the Oregon chief justice is personally credited with enacting the whole panoply of rules governing the practice of law in Oregon's trial courts. 

What trial judge is going to say that the chief justice's own personal rule is illegal?  There's no check.    There's no balance.   So a patently unconstitutional law is maintained in place by the people whose job it is to see that the law complies with the Constitution.

(I don't know of any other state that describes its rules as the accomplishments of the chief justice personally.  You could hardly ask for a more straightforward declaration that government by the judiciary has nothing to do with democracy.)

There's currently a proposal in Oregon to amend the ridiculous rule and it seems to have picked up a fair amount of support.  Here in New Mexico it's customary for the judge to tell the jurors they can stick around if they want, but don't have to.  Usually a few accept the invitation, frequently because they have questions of their own.  What they have to say can be extremely useful.

And it's not just useful in the sense of letting a lawyer know that scratching the interior of his ear with the barrel of his pen distracts from his opening statement, or that heavy sarcasm plays better among his lawyer buddies over drinks than it does on cross-examination of a trembling witness answering in a little tiny voice.  Jurors notice everything, but they often process it in a way that wouldn't even occur to lawyers, who tend to run like slot cars in a single track.

One woman I knew was a juror in a case tried by a fairly well-known attorney.  The judge ruled that a certain item of evidence was inadmissible and the lawyer spent the next half-hour trying to backdoor it, attempting various clever stratagems to get around the judge's ruling.  The jurors thought, I know the judge won't let it in, how come he doesn't get it?  They thought: What an idiot!  (His client didn't win.)

Then there was the parental-kidnapping case in which the husband admitted striking the wife, producing a gusher of a bloody nose.  There was the eyewitness testimony of the neighbor and photographs of blood spattered all over the white door.  There was basically no defense to the charge of battery, so defense counsel devoted her closing to other, winnable points, and the prosecutor hardly said more.  But the jury acquitted on that count.

The acquittal seemed to make no sense, especially since the same jury convicted on other, more complex and contested charges.  But then the prosecutor talked to the jurors after the trial was over and heard: "He didn't intend to hurt her, he just intended to kidnap the kid."   The verdict was actually perfectly logical, if you started from the (mistaken) premise that  "intent" means "motive."

These types of insights can't come from any source but the jurors.  Once their service is over, they and the parties and the lawyers are released from the magic spell of courtroom decorum.  They become ordinary American citizens again.  And American citizens are allowed to converse.

The LA Times recently quoted Justice Scalia telling students at Claremont McKenna College: "I'm a textualist. I'm an originalist. I'm not a nut."  But he's a nut about some things, and one of the nuttiest things about him is that he doesn't perceive any contradiction between his first two self-descriptions. 

The whole purpose of being an "originalist" is to fill in the gaps left by the text of the Constitution.  The doctrine, if it deserves such a dignified title, is based on the idea that judges have the power - even the duty - to invent new constitutional doctrines based, not  on the text, but on the judges' imputation of an unexpressed intent, the meaning that the drafters intended to put into the text but absent-mindedly left out.  (See post 81.)

Pure textualism is the only position justified in democratic theory.  It's based on the idea that the Constitution is binding only insofar as the American people agreed to be bound, and they could only have agreed to be bound by the words on the page.  There are no gaps to be filled.  There can be no gaps, by definition.  If the Constitution as it exists is inadequate, the only legitimate way to fix it is by democratic action, that is, through the amendment process. 

Originalism, like any other theory of the "living Constitution," is based on nearly the opposite idea, that the Constitution is an open-ended grant of power to judges.  That the American people who ratified the Constitution and its amendments were saying: "We don't care to define our essential liberties.  We'll leave that to unelected federal officials to explain to us at some later date."  Whether the judges base their eventual explanations on mystical revelations of social evolution or on amateurish historiography (see post 238) is, at best, a difference in technique only, and maybe not a difference at all.

Or, more brutally but perhaps more realistically, originalism boils down to this: "It doesn't matter what the American people said in the past or what they want of their government today.  We're judges and we make the rules.  The people can pass laws that will be effective unless we decide to veto them, based on cynically-shifting proclamations of what is and what is not 'constitutional.'  Other than that, the people's only job is to obey us - although, really, they ought to reverence us, too."