JUDGING CRIMES

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

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.

How's this for a headline?  "Supreme Court details five ways to a harmonious society".  Harmony isn't something one ordinarily associates with our Supreme Court.  It was actually the Supreme People's Court of China that "issued a wide-ranging circular ...outlin[ing] five areas were the country's courts have to solve social issues in order to achieve a harmonious society." 

One of the characteristics of our Supreme Court is that it takes no responsibility at all for the social consequences of its decisions.  (See post 232.)  Whether the Chinese court does more than pay lip service to the Confucian - or is it Communist? - ideal of its circular, I can't say.  But it's hard to find fault with its expression of that ideal, even if it leaves you to wonder how it translate into real-life action (and also to wonder about the translation into English of the fourth principle):

 All courts need to better resolve cases involving family members and neighbors to promote harmony within communities. They need to properly protect the rights of peasants to guarantee the social order of the vast rural areas. The courts need to protect the legitimate rights of laborers to enhance the development of the work force. Courts need to also strictly supervise government departments and state institutions to protect their rights. All courts need to properly handle environmental cases to prevent pollution and build a harmonious relationship between humans and nature, read the circular.

Of particular interest is the circular's admonition to judges.  China's judges aren't merely the ones given the task of reforming everybody else: "[T]he circular also said judges who abuse their power and take bribes must be dismissed."  And who can argue with that?

It's the next part of the circular that might cause an audience of American judges to start shifting in its seats: "It also urged the courts to be more transparent to people's congresses, procuratorates and the common people."  You can almost hear the paper rustling and the coughs breaking out across the hotel meeting room, can't you?

"Transparency" is a word that has recently come up in regard to the judicial systems of the EU's newest members.  Ireland's RTE summed up the flamboyant shortcomings of the Bulgarian judicial system this way:

Bulgaria's primary law, adopted in 1991 after the fall of communism, gave the judiciary total independence, breeding corruption and impunity.

Spectacular trials including an embezzlement case that bankrupted 14 banks in 1996 and 1997 led nowhere with defence lawyers and corrupt judges always finding loopholes to delay a court ruling.

Police have also recorded over 160 suspected contract killings since 2000 but there has not been a single conviction, although the names of notorious gang bosses have circulated in the Bulgarian press.

As a result, parliament passed amendments last March designed to limit the independence of the judiciary, giving parliament the power to sack the chief prosecutor and members of the supreme courts.

But the EU Commission later criticised the changes, claiming they violated the independence of the judiciary, and pressed for 'ambiguities' to be removed.

Bulgaria's constitutional court repealed the disputed legal amendment last September, making it necessary for parliament to find another mechanism to monitor the judiciary.

I wouldn't blame those Bulgarian parliamentarians for feeling they can't win for losing.  Total independence has been proven to be disastrous in practice, while Daddy in Brussels says less-than-total independence is even worse, in theory.  (And remember we're talking about a legal system - theory is what counts.)   So what's a striving wannabe-normal European nation to do?  Why, get transparent, of course:

The Bulgarian parliament has approved constitutional changes demanded by the European Union to improve the efficiency and transparency of its much-criticised judiciary.

Transparency is something American courts fight against, tooth and nail.  Hammer and tongs.  The ludicrous blow-up on the Michigan Supreme Court is all about an emotionally-adolescent Chief Justice (he circulated a draft opinion suggesting one of the women on the court start a hunger strike, which has "the potential for everyone to be a winner."  You can just hear the guys in home room cracking up, can't you?) trying to keep the people of his state from knowing how he and his pals spend their time in Lansing.  (See post 234.)

Meanwhile, in Connecticut, a judge was located who was prepared to go public with the laughable notion that it violated the doctrine of separation of powers for the state legislature to investigate the chief justice's attempt to manipulate the legislative process.  (See post 198.)

Meanwhile, no one has yet come up with any explanation as to how the Supreme Court's ban on TV in federal courtrooms, conspicuously including its own, can possibly be squared with the first amendment - you know, the one the federal courts are always so eager to enforce against the other branches.

(The justices have come up with an explanation as to how their denial of freedom of the press can be squared with the sixth amendment guarantee of a public trial, but that explanation is mere magic-wand jurisprudence, a because-I-said-so declaration that the sixth amendment's reference to a "public trial" doesn't, as the legally-unsophisticated might naively assume, necessarily mean "public trial.")

Perhaps there's a kind of reversion to the mean going on.  Relatively successful legal systems, such as ours, seek to reduce transparency in order to increase the personal power of the judges.  Relatively unsuccessful legal systems, such as Bulgaria's, seek to promote transparency in order to decrease the personal power of judges.  The goal of both is mediocrity.  The interesting question is: will either achieve it? 

New Mexican wannabe Don Imus recently said to President-Elect Bill Richardson: "Besa mi culo!" Now, imagine if, on the day after the formality of the inauguration is out of the way, the new President were to retaliate by ordering a proceeding to determine whether to ban Imus from the airwaves.

That's pretty much what the Michigan court system did to Geoffrey Fieger.  Of course, Fieger had to babelfish Imus's words, because he was speaking to a Detroit audience.  But when he invited judges of the state's Court of Appeals to kiss his ass, they retaliated by initiating a disciplinary proceeding, threatening his right to practice his profession.  (See post 144.)

Various justices of the Michigan Supreme Court who ran campaign ads attacking Fieger by name didn't see any conflict of interest that would keep them from presiding - fairly and impartially, of course - over the opportunity to trash him.  And, surprise, surprise, they found no first amendment violation.  When one of their number protested the sheer shoddiness of the put-up job - the amateurishness of the oiliness - the chief justice responded by attacking her personally as an overly-emotional female-type.  (See post 216.)

The attitude Christopher Buckley attributed to Tom Clancy's Superman seems to be shared by Michigan's Chief Justice Cliff "Hack" Taylor:

[Jack] Ryan liked women.  His mother was a woman, and his wife was one, too, but it was madness that they were allowed to serve in combat or in the Senate.

Amazingly enough, various Michigan newspapers, such as the Jackson Citizen-Patriot and the Detroit News,  side with those justices who wish to punish free speech, impose prior restraints with a great flourish of wounded self-righteousness, and conduct government in secret as a matter of principle.  If newspapers are dying out, it's for the same reason the dodos did: they can't recognize their enemy, even when it's holding a club over their heads.

The Sixth Circuit - which, perhaps coincidentally, includes Michigan - went through a hilarious drama about court secrecy a few years ago.  Judge Alice Batchelder - perennial token female candidate for the Supreme Court (the Republicans can't be too choosy about who they promote as their tokens) - deplored the personal attacks of a colleague she characterized as among the "smallest" of persons.  She joined the comments of Judge Danny Boggs deploring that same colleague's decision to reveal what goes on behind the red velvet curtain:

I write to note, with regret, the breach of the long-standing custom of this court that actions by a member of the court with respect to petitions for rehearing of en banc are matters of internal court procedure and are not made public by other judges.   [Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d at 605]

As the case name suggests, that was an abortion case, and the conservatives prevailed, allowing them the luxury of displaying their condescending "regret."  But just three years later, in another politically volatile case - involving affirmative action - the conservatives were on the losing end.  And guess who spilled the beans about the court's internal procedures, attempting to show that the chief justice had engaged in politically-motivated maneuvering?  Why, yes, I believe that was Judge Boggs who published his "procedural appendix."  (The fifth entry from the top; it opens only in Acrobat.  Scroll down to page 95.) 

And, golly, that's Judge Batchelder joining his dissent, explaining that "[u]nless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate."  It was up to Clinton appointee Karen Nelson Moore to be "saddened" by their act of disclosing the internal workings of the court: "their conduct in the present case is nothing short of shameful."

Whenever a judge tries to pretend that secrecy is a matter of principle, it means only one of two possible things: I have something to hide; or, I want to silence my enemy.   And usually it means both.

Me-Mo first directed my attention to the case of St. Louis Circuit (i.e., trial) Judge Robert H. Dierker, Jr., a city counselor who lost his race for the state House and settled for being a judge instead.  Dierker has published a book called The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault. 

(Assault on what?  My guess is that the designer miscalculated the type size, hit the right edge before completing the title, and then was too lazy to start over.)

I think we ought to be happy that the friskier piglets in the litter are beginning to crawl out of their pokes.  (See post 7.)  Given that judges have assumed the duty of telling us how to live our lives, basic democracy requires them to run for office on an honest platform, and Dierker, at least, seems to be (rather belatedly) revealing to St. Louis voters the planks of the platform he ran on.

That judges have platforms can hardly be doubted.  Look at this chart documenting the frequency with which judges in a certain court dismiss DWI charges.  Over a period of three and a half years, some judges dismissed over 50% of all drunk-driving cases before them, while others on the same bench dismissed just 20%.   Given the huge volume of cases (17,884) and the relatively long time frame, and given that cases are assigned randomly (unless some behind-the-scenes hanky-panky is going on), it's self-evident that the difference between 50% and 20% dismissal rates is personal, not legal.

These particular judges have to run in one contested election and thereafter stand for retention.  Why shouldn't the people voting in those elections be told ahead of time what the judge intends to do once power is in his or her hands?  Then the people with eight prior arrests will know whom to support.

So in general I think it's a good thing for judicial candidates to tell the voters what they're likely to get for their votes.  And, in a more general sense, I think it's a good thing for judges to tell us how we should live our lives before they whack us for not following their rules.

But Dierker's book suggests he's not really carrying his weight on the St. Louis Circuit Court.  The evidence for that isn't the book itself - Hey, some people write blogs in the evenings and on weekends, and that's far more demanding than this kind of book.  No, the evidence of lollygagging is that Rush Limbaugh's show runs from 11-2 on St. Louis's KMOX.  The judge's writing strongly suggests he's in the habit of calling a recess for his elevenses, and then allowing the break to glide gracefully into a late lunch.  Take a look at this sentence from his book:

Just as we saw with the femifascists, illiberal liberals don't want equality; they want to make some people more equal than others.

(I know what he means about making some people more equal than others.  Why, just a couple years ago some irony-deficient Pepperdinefascist was calling the Supreme Court "first among equals"!)

Now, in that single sentence I've quoted, Dierker compares the "illiberal liberals" to the pigs in Orwell's Animal Farm ("all animals are equal, but some animals are more equal than others") which is to say he's calling them Stalinists.  And, for good measure, he also calls another group of his enemies fascists.  An argument could be made that the tone of this discussion is shading over into a gray area in which reasonable people might fairly disagree about whether it was approaching the less-than-temperate.

There once was a time, far back in the mists of long-ago, when the world wasn't filled with female lawyers.  We're talking, oh, I don't know, practically prehistory.   Like, you know, back when they were singing this kind of thing.  In that hideous year, the year before Judge Dierker started law school, women made up 3% of the legal profession, according to the ABA.  He thought he was pledging a fraternity.

By the time I went to law school, the world had moved on to Burning Down the House and Eartha Kitt's comeback, and the male-female ratio at Northwestern was about 2-1.  The law school prominently displayed the faces of all its writing instructors in its catalogue, even though the instructors were treated as second-class members of the faculty in every other way, for one simple reason: the second-class jobs went to females, and featuring their mug shots tended to disguise how few female professors the school had.  At that time, according to the ABA, 13% of the members of the profession lacked the Y chromosome.

Since then, the ABA tells us, the percentage has doubled.  That's an 8-fold increase just since Judge Dierker was taking his LSAT.  All those women are following in the footsteps of the people he calls "femifascists" - the term apparently being his way of indicating that, unlike Limbaugh, he's not necessarily accusing feminists of signing on to the Wannsee protocol.

Beneath the look-at-me rhetoric, there may even be some ideas in Dierker's book.  Certainly the judiciary's assertion of authority to order elected officials to raise taxes is wildly, almost comically - in a Keystone Kops slapstick sort of way - violative of the separation of powers, though my understanding of natural history causes me to part company with Dierker's contention that "[t]he Constitution died on April 18, 1990" (referring to this Missouri case).   See, the way I figure it, words written on paper can't experience terminal ischemia. 

But does Dierker really mean that we were better off when the Constitution was still "living"?  That's not exactly a conservative position, and almost certainly not what he means when he mourns its death.  Which tells us something about his sensitivity to language.  As Scott Lemieux points out, we're not exactly dealing with a Holmes or Cardozo here. 

What we're dealing with instead is:

• A sitting judge speaking out in a way that gets past the bromidic pap.  That's good.
• A bad writer.  That's not good.
• A writer who gets his ideas from talk radio.  That's trite.
• A judge who insults roughly two-thirds of the lawyers who appear in front of him, and a big percentage of the parties into the bargain.  That's bad.

All in all, the book will probably help Dierker move from the bench to a comfortable perch in a conservative think tank, from which he can draw his judicial pension in comfortable semi-celebrity.  Good for him.  But in the meantime, if I were a female, a Democrat, or a liberal, I would recuse him from every case in which I wasn't absolutely sure, based on experience, how he would rule.  (So would Ann Bartow.  Steve Benen at Washington Monthly points out the essential self-contradiction of the judge's disclaimers.  His belief system doesn't inform his exercise of discretion?  Then what does?)

There's one more thing.  We also have:

• A judge who's about to dump a big chunk of his caseload on his colleagues, who will have to pick up the slack when he's recused from hundreds of cases.  Ask them if they think that's good.

Incidentally, it's worth noting how uncomfortable Dierker's tantrummy anti-feminism makes people on the reasoned right who would otherwise be his allies.  But don't feel bad for him: there are those who decry the shrill tone of the rhetoric employed by liberals to criticize the judge.

Is it more important to have a good reputation or to deserve one?  That's the question facing the justices of the Michigan Supreme Court these days.

It's difficult to know the exact basis of the dispute on that theatrically dysfunctional court, except that it seems pretty clear the majority of four petulant Attilas ignored the cardinal rule of open government, as recently expressed by my new boss, that if you're doing something you don't want your mother to read about in the newspaper, you probably shouldn't be doing it.

As near as I can gather, the seven justices decided not to hear lawyer / publicity hound Geoffrey Fieger's case, in which he complained about being punished for exercising his right of free speech.  (See post 144.)   Some, at least, of the justices had a serious conflict of interest - that is, had it in for Fieger for reasons unrelated to his disciplinary case - and were ethically obliged to disqualify themselves from hearing the case, according to their colleague Elizabeth Weaver. 

Weaver documents some of the instances here, in footnote 1 beginning on page 27 of this pdf.  I don't think anyone reading these examples can have much doubt: she's absolutely right.  During their campaigns, the justices in the majority ran ads singling out Fieger by name.  They came very close to making an explicit promise to rule against him.

Those justices  rushed through an administrative order prohibiting Weaver from releasing her dissent in the Fieger case -  which is pretty much the same as saying, "She's right, you know."  This is the order, quoted here in its entirety:

All correspondence, memoranda and discussions regarding cases or controversies are confidential.  This obligation to honor confidentiality does not expire when a case is decided.  The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC [Judicial Tenure Commission] or proper authority.

What's immediately striking about this order is the incompetence of its draftsmanship.  Imagine what the pooh-bahs of the Michigan Supreme Court would say about a criminal statute that did not say who it applied to, did not define its critical terms (what does it mean to "honor confidentiality"? bow down to it?), or even specify what penalties would be imposed for violating it.  Talk about void for vagueness. 

The second striking thing is: They wouldn't need to promulgate a special rule to protect their good reputation if they deserved it.

Michigan's political commentators don't know what to make of it all.  The Detroit News tried the jaded-realist line, declaring that "Fieger's complaint that he can't get a fair shake from them is a problem of his own making," because he's a Democrat and a majority of the justices are Republicans.  Really, I'm not kidding - the paper's editorial board really said  that. 

All that stuff Weaver wrote about free speech, and open government, and basic fairness - that's just "overwrought".  Why, if the News itself were, like Fieger, subject to punishment for using words protected by the first amendment, or if it were, like Weaver, the subject of a prior restraint prohibiting it from exposing government wrongdoing - well, of course the paper would bite the bullet, take its medicine, and open its checkbook.  Of course.

(For you word-watchers, note the paper's scrupulous observance of the Dictionary of Newspaper Cliche.  The word "overwrought" is to be used in editorials only to describe an opinion by a female judge.  If the person wearing the black dress has a Y chromosome, the correct adjective is "thundering.")

Meanwhile, Michigan's reasonable-guy, good-government columnists seem unable to believe that a majority of four justices would knowingly violate the United States Constitution merely to conceal from the public their own lack of ethics, although Ron Dzwonkowski of the Free Press points out that no one can prevent the from violating the  Constitution if they want to. 

The lesson is clear.  Some things are greater than the United States Constitution.  And among them are any four justices of the Michigan Supreme Court. 

One of the things I learned by living abroad is that every generalization about the United States is true, in part.   Such as: its entire history, beginning with the founding sin of slavery, is a history of the most brutal racism; it's the most successful multi-racial society in history.  Or: its people are almost quaintly religious; their society is permissive to the point of depravity.  Or: it's the model of a freedom-loving, democratic polity; it's a dangerously violent 800-pound gorilla, with something less than a gorilla's capacity for understanding history, nuance, and other people's cultures.

I think everyone will immediately - almost involuntarily - think of examples that prove the partial truth of each of these propositions.  America's population today is approximately the same as the entire world's population at the time of Jesus and Augustus, and while education, governmental coercion and the persuasive power of mass media have (as we might delicately put it today) narrowed the diversity of lifestyle choices during the intervening 2,000 years, the universe of basic personalities probably hasn't shrunk by much. 

It's a reasonable working assumption that somewhere in America, people are at this very moment doing everything that a person is capable of doing, including several things you didn't think were possible.  That's one of the reasons (in addition to the intrinsic interest of the stories) why I try to include stories of judicial activities from around the globe.  The details are vastly different, the overall systems are night and day, but in moral terms the temptations facing a judge in, say, Yemen are not so very different from those confronting a judge in New York City.  (See post 109 and post 111.)

As I've mentioned before, it's difficult to follow the Greek judicial scandal in the English-speaking press - American newspapers just ignore it.  (See post 12.)  Which is a shame, because it's pretty spectacular.   As one particularly vivid lede put it, "When justice is not blind, she is greedy, as Greece's burgeoning judicial corruption scandals have amply shown." 

It began with an audio tape of Piraeus judge Antonia Elia allegedly telling a drug convict that in order to get off the hook he had to pay a hefty sum to Athens lawyer Sakis [allegedly Kehayoglou], who in turn would pay off an appellate prosecutor.

Criminal lawyer Costas Koutras, whose 30-year practice includes a string of sensational nationally publicised cases, says that judicial corruption includes policemen, investigating magistrates, court secretaries, prosecutors and judges. "Each precinct and police directorate - like narcotics, homicide, immigration and robbery - channels cases to specific lawyers. The police get a 20 percent commission," Koutras explains.

One judge, Konstantina Bourboulia, fled the country, living the exciting life of an international fugitive for several months after her 43 secret bank accounts were discovered.    She was eventually arrested in France and is now doing time.  In August ex-judge Leonidas Stathis was sentenced to (according to one's on-line source) 25 years or even 86 years for his corruption.  (I'd be curious to know  what those figures mean in terms of actual time inside.)   Compare that to the sentences American judges get for planting drugs in the cars of those who oppose their zoning variance requests.  (See post 78.)

One Greek sculptor gives a historical perspective on his country's scandals:

[H]ere comes the traditional "Greek" solution, having its roots in the ages of Turkish domination, when masters did favors to good slaves. In a very similar way, VIPs in Greece (e.g. politicians who are in need of votes), or those who have money to pay, have many opportunities to acquire some benefits not accessible to ordinary mortals.

Thinking in terms of power relations - of masters doing favors for their good slaves - helps to explain the New York Times' findings about Ohio Supreme Court Justice Terrence O'Donnell, who was found to decide cases in favor of his large contributors about 90% of the time.  (See post 176.)  (But then, who's the slave and who's the master?)

A major part of the Greek scandal, from what I understand, involves payoffs to prosecutors, who apparently shared the proceeds with judges.   A similar form of corruption, involving investigating magistrates, is alleged to have been widespread in Bulgaria.  Given the vast sums of money changing hands in the drug biz, it would be foolish to imagine such things never happen here.  Certainly I've heard rumors, which I believe but am too prudent to repeat, of sweetheart plea deals getting even sweeter at sentencing hearings.

For a time, the worst thing former Green Bay DA Joe Paulus had to worry about were the tape recordings of him bragging about having sex in the office during business hours.  PDFs of documents pertaining to the subsequent bribery charges, for which he is currently serving time, can be found here. 

What tripped Paulus up was (1) his lack of subtlety, which (as the tape recording reveals) was a personality trait and not just a lack of a savvy; (2) his co-conspirator's decision to cooperate with authorities, and in general his failure to surround himself with dishonest people who owed him - some of his own prosecutors began keeping tabs on him; and (3) his failure to cut judges in on the action - some of the judges of northeast Wisconsin, to their credit, noticed and reported "what appeared to be unusual dispositions in certain cases."

This list suggests the circumstances that would have to be present to replicate the Greek scandal in America: an operation run by a slick pro; careful selection of henchpersons; and compliant judges.   The first of these can take care of itself, and generations of Mafia types have demonstrated that the second requires only a combination of due care and a sociopathic lack of sentimentality. 

But how can a would-be briber be sure a given judge will be willing to play ball?  This, I think, is the easiest of all.  What you need is a judge with a substance abuse problem.  All the judge has to do is accept cocaine once, and you have him for life.  New Mexico has seen two judges recently booted from office on account of cocaine use - one of them a presiding judge, i.e., with the power of assigning cases - and I'm confident judicial use isn't unique to this state.  Here's a Pittsburgh story describing how easy it is for a courtroom worker to pinch cocaine without, apparently, going to the trouble of thinking through how best to do it.

While I have no particular reason to think the New Mexico cocaine-using judges were being blackmailed by / providing services to their suppliers, it doesn't seem totally out of the realm of possibility that other using judges might earn their stash.

But cocaine and meth are merely the best possible hooks, not the only ones.  I would imagine videotape of the judge drooling drunk, or staggering into his or her car, would work, too.  Sex, of course, was an old standby of the KGB, and say what you will, they were pros.   Legalized gambling, I'm sure, also provides lots of opportunity for shady loans that could prove very embarrassing to a judge if leaked to the media.   Look at post 214 and consider the possibilities.

In short, I think we should look at the ongoing judicial scandal in Greece, a country of 11 million people, as a window into something that is almost certainly happening somewhere in our country of 300 million.  One more pair of opposing generalizations is, I'm afraid, as true as those with which this post began: America has a superb  judicial system; we tolerate enormous corruption in our judicial system.

In 1528, William Tyndale, translator of the Bible (most of the "King James" version is his single-handed work), examined scripture relating to acquiescence to authority and concluded: "Hereby seest thou that the king is in this world without law, and may at his lust do right or wrong and shall give accompts, but to God only." 

Is there anyone in modern American society who is in this world without law, who may at his lust do right or wrong and give accounts only to God?  No, I'm not talking about the President, whose accounts are rapidly coming due - something to do with the shift in balance caused by all those rats jumping ship.

Consider William J. Sullivan, whom we've met before.  (See post 178.)   He was the retiring Connecticut chief justice who delayed the release of an opinion because he thought it would help the political career of one of his buddies, a fellow state Supreme Court justice with ambitions to succeed Sullivan in the center chair.  Sullivan lied to the general assembly, although his lie was one of omission rather than commission.  Sullivan's admitted purpose was to prevent the general assembly from making a fully-informed decision in the fulfillment of its constitutional duties.   (See post 178.) 

Why did Sullivan want to hide the opinion from the general assembly?  Because the opinion was an outrageous encroachment on the authority of the general assembly.  Sullivan was exhibiting what prosecutors call consciousness of guilt - a concept neatly explained by this Connecticut jury instruction.

One of Sullivan's colleagues on the court was naive enough to believe that supreme court justices are bound by ethical rules.  He filed a complaint.  Last week the Connecticut Judicial Review Council did its best to rid that justice of his last lingering shreds of idealism.  Hilariously enough, it acquitted Sullivan of the charge of bringing the court into disrepute, despite many months of headlines detailing the extent to which personal relationships and empire-building dominate the administration of justice.  

In fact, one district judge on the council voted to acquit on all charges because she liked and admired the guy - and didn't see anything wrong about letting the world know the purely personal basis for her exercise of judgment.  "If I didn't like him, I wouldn't have any problem throwing the book at him," this judge didn't say, but might as well have.

But the Council did vote that Sullivan should be suspended for 15 days - even though Sullivan no longer holds any position from which he could be suspended.

But that's a veritable life in prison compared to the "punishment" meted out to Washington's Supreme Court Justice Richard Sanders.  An AP dispatch run in the Vancouver (Wash.) Columbian News last month gave the bare bones:

Supreme Court Justice Richard Sanders violated the Code of Judicial Conduct by touring Washington's sex predator center at McNeil Island while residents had appeals pending, a panel of judges sitting for the state Supreme Court ruled unanimously Thursday. ...

"Justice Sanders created a situation that clearly violated both the letter and the spirit of the canons and created serious concern for both counsel and fellow jurists about the appearance of partiality," the opinion read.

That doesn't quite give the full flavor of it.  The Washington Supreme Court was faced with a constitutional challenge to Washington's sexually violent predator act - a statute that permitted state authorities to keep certain sexually violent offenders locked up after the expiration of their sentences.  Under U.S. Supreme Court precedent, the key constitutional issue was whether the incarcerated men had difficulty - a lot of difficulty, but not insurmountable difficulty, you see? - controlling the impulse to sexually humiliate and violently abuse women.

At a time when the court was considering that challenge, and Justice Sanders had already circulated to his colleagues a draft opinion expressing his belief that such people should be set loose, two men confined as sexually violent predators wrote to him, asking him to come talk to them about their cases.  Both had cases pending before the Supreme Court.

No fewer than three of Sanders' colleagues on the bench told him ahead of time that it was a very bad idea to meet with the adjudicated predators, but he went anyway.  And - this is the part that makes you realize what a dim bulb Sanders is - he spent his time in the facility for sexually violent predators asking them "what they thought of volitional control."  Apparently, he actually thought he could discover some kind of psychological truth by asking a group of psychopaths to be frank with him.

After three years, Sanders was "admonished"  - which means, more or less, that he was neither disciplined nor let off.  But he wasn't repentant.   He said, "If I had thought any of this would have violated the rule, I wouldn't have done it."  On the other side of the country, William Sullivan said, "If I thought I was doing anything wrong, I wouldn't have done it."  Do you suppose they employ the same spin doctor?  Or do they really think that judicial ethics is a personal matter - if it feels good, it must be ethical?

So, to answer the question with which this post began, I don't think our state supreme courts justices are quite "in this world without law, who may at [their] lust do right or wrong and give accounts only to God."  But they're working on it.

The Seattle Times' series on "Your Courts, Their Secrets" deserves a couple Pulitzers: one for the reporting, and a second one for proving that it's possible, after all, for newspapers to write sensibly about the courts.  (See post 183.)  Earlier articles in the series documented judges illegally sealing cases to protect their buddies on the bench or in the profession.  (See post 157 and post 94.)

Last Sunday the Times' latest entry described the enormous lengths to which officials in the Northside School District, just north of Seattle, went to avoid dealing with a predatory elementary school teacher.  The principal, upon being told of the teacher's gropings, promptly set about reinforcing the lesson about betrayal of trust, calling the 10-year-old girl into the his office where he confronted her with the molester at his elbow.

The teacher did everything humanly possible to demonstrate his unfitness.  His application letter was barely literate, he touched prepubescent girls' breasts in front of witnesses, he demeaned his students and taught them sexually-charged words - and yet his principals protected him, because "principals don't like problems." 

For a careerist bureaucrat, not having problems is the ultimate goal, and the principal who called the 10-year-old into his office was suitably rewarded for his determined efforts not to deal with, or even know about, what was going on in his school: "He's now principal of Skyline High School in Sammamish, one of the state's top high schools."

Families of three of the girls, who had to endure nearly-daily gropings - one described how much she dreaded sitting at the computer in the classroom, because there was no escape, and another wore heavy sweatshirts even on the hottest days - sued the school.  The amazing thing isn't that the district shoveled tons of money their way, but the type of secrecy the district insisted on:

It required the families and their attorneys to gather whatever documents they had about their allegations, and turn them over to be destroyed. They also had to "purge all computer records" related to their claim.

Even though the Northshore School District is a public entity — making its finances public record — the agreement forbade the parties from disclosing the settlement amount. It also prohibited any party from disparaging another, and set the penalty for any violation at $10,000.

According to the Times, "The secrecy agreement even restricts what they can tell any therapist."  The school district had two levers with which it could extract that agreement out of the families.  First, as mentioned by the families' lawyer, unless they accepted the settlement "these 'very vulnerable girls' would have been exposed to depositions and a possible trial".  That is, the school district was applying the same pressure routinely exerted by pedophiles, who hold their victims' psyches hostage during plea negotiations: agree to my terms or we'll really give her something to cry to her therapist about.

The second reason, of course, was that the lawyer himself was mostly interested in getting top dollar.  For his clients, I mean.

A superior court commissioner (apparently a kind of adjunct judge) agreed to seal the court file, "signing an order that violated the rules governing open court records."  So here you had the court system using its power and prestige illegally to threaten schoolgirls with $10,000 fines if they opened up to their therapists. 

The parents and taxpayers of the school district weren't to know what their principals and teachers did to their children.   The public wasn't to know what its government was doing, when it was doing the public's business.  The institution that exists to educate the young was teaching them instead a bitter lesson about justice.  And the institution that exists to enforce the law was violating it.

The Northside District has posted a letter to parents that largely avoids the temptation to blast the Times for raking this muck.  I don't believe for a minute that there's anything really out of the ordinary about the district.  Nor do I think there's anything out of the ordinary about the casual way King County courthouse officials violated the law about sealing court files.  Which is to say, your courts are doing it, too.  You just don't have a Seattle Times to tell you about it.