JUDGING CRIMES

This time of year always sees retrospective articles about the year in crime.  My local evening paper, the Albuquerque Tribune, today published a package of articles about murder in Albuquerque and its suburbs.  The articles show, among other things, that we had one homicide in June, the least of any month, and 10 in July, the most of any month.

There's no reason for the dramatic difference between the two hottest months of the year.  It just happened - a reminder that short-term changes in crime rates mean very little, for all that mayors and police chiefs like to take credit for every downturn.

Another reminder of random variation is that the ages of the first 6 homicide victims of the year were 18, 17, 18, 18, 18 and 19.  Those are dangerous ages in general, but I don't think there's a reason, other than chance, why the dice should have come up snake eyes that many times in a row.

In Albuquerque in 2006, you were at the greatest statistical risk of being murdered if you were 21 years old (five victims).  The next most risky age was 18 (four victims).  Being less than six months old was inadvisable (three victims), though no more dangerous than being 19 or 27.   Criminal violence is something we visit on our young.

Albuquerque is located in Bernalillo County.  While the Census Bureau reports that Bernalillo County's population is 43.6% Hispanic,  by my count 32 of the 53 homicide victims, or fully 60% of the total, had identifiably Hispanic surnames (though for various obvious reasons surnames are only a rough guide to ethnic identity).  Criminal violence is something our society inflicts on members of minority groups.

The Tribune published a map showing the locations of the homicides.  It won't mean much, by itself, to those who aren't familiar with the city, but you'll notice that the homicides were concentrated in specific neighborhoods, particularly in the southwest and southeast parts of the city.  By contrast, the northeast corner saw no homicides at all, and the northwest only four.

If you follow this link, and scroll to page 21, you'll see a map showing Albuquerque's poorest neighborhoods ("percent of persons below 100% of the federal poverty level").   The correlation is visually striking.  The areas with the lowest number of homicides - the northeast and northwest corners - also have the lowest levels of poverty.

The traditional liberal way of assimilating that information is to conclude that poverty somehow causes violence, even though we all know that's not even close to true: many people are very poor (about 90,000 in Bernalillo County), but very few of them are homicidal, or we'd have a lot more than 53 gurneys trundling into our Office of Medical Investigator.

The real significance of the geographic correlation of poverty and criminal violence is simply this: being poor increases your risk of being victimized.  Increases it by a lot.

A recent AP year-end story about rising homicide rates includes this paragraph:

Among the reasons given: gangs, drugs, the easy availability of illegal guns, a disturbing tendency among young people to pull guns when they do not get the respect they demand, and, in Houston at least, an influx of Hurricane Katrina evacuees.

What's striking about this list is the absence of any mention of the government.  (Even the reference to the easy availability of guns refers only to illegal guns, not to laws that encourage packing heat.)  We spend billions on law enforcement, the corrections system/industry, and the judiciary - and the cost is rising much faster than inflation, as measured by the Consumer Price Index.  Yet the AP's list implies that all those billions buy us no power to influence homicide rates.

So what we have here is a significant social problem that causes enormous suffering among the poorest Americans, members of minority groups, and the young.  Our government throws billions of dollars at the problem, and yet we seem to accept that it's all beyond our government's control - even though we all know that other developed countries with different governments have vastly lower homicide rates.

This is cognitive dissonance on a national level.  Which is to say: The disconnect between the facts we know and the belief system we cling to is difficult to explain except in terms of psychopathology.

Yesterday I finally got around to reading Emily Bazelon's recent Slate article about the Duke rape case, which reads as if she slapped her byline on a press release from the millionaire boys' club's PR firm.  And then I read that the North Carolina Bar Association has filed an ethics complaint against the prosecutor for talking to reporters.

Isn't it nice when the news so obligingly illustrates the points made in this blog?  One of the most significant themes running through the American criminal justice system is this one:

The people whose rights are being decided should not be given notice or an opportunity to be heard.  (See post 207.)

The disciplinary case against the DA is concerned with the right of the people to know what their government, and their elected officials, are doing.  But the people themselves have no say in the matter.  They can't decide for themselves how much information they want to receive about a pending case.  That's for the bar's in-group to decide.  (Bar associations are run strictly along the lines of student councils - the chief criterion is sitting at the same cafeteria table with all the other popular kids.)  Which illustrates another important point:

In our democracy, the people have no authority to control the administration of justice.  (See post 207.)

There's a reason the ethical rules for lawyers condemn a prosecutor's action of letting the people know what their government is doing: it supposedly interferes with the accused's right to a fair trial.  Which nicely captures another important theme:

Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.  (See post 207.)

The assumption is that prospective jurors simply cannot be trusted to tell the truth about their biases during jury selection, or to abide by their oaths to decide the case on the evidence after being sworn in.  If they heard the DA say something or other nine months ago, they will have forever lost the ability to function as rational human beings during the trial, assuming it ever happens.

Whether jurors actually react in that way - simultaneously infantile and endowed with superhuman powers of memory - is beside the point, because

Facts can be manufactured to suit any need. (See post 207.)

It's enough simply to say that jurors react that way.

(Note the pleasing whipsaw effect: Bazelon says the DA is incompetent because he didn't exercise his own independent judgment about whether the accuser is credible, while the bar association says he's unethical because he told reporters he had done exactly that: "I am convinced there was a rape, yes, sir."  To be ethical, he should have made that determination but given reporters the impression he hadn't - and the fact that he did give Bazelon exactly that impression is the icing on the cake, the proof in the pudding, the cliche in the dessert.  You've got to admire the symmetry of the reasoning.)

An even more basic theme running through the American criminal law is one I mentioned eight months ago:

As the Duke lacrosse players are preparing to demonstrate yet again, it's very difficult to convict a rich person in the United States.  (See post 102.)

Another news story, also published yesterday, neatly captures another basic point about the American criminal justice system:

The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  (See post 207.)

Baseball has, in the past few years, taken great strides to eliminate steroid use.  The players and owners, traditionally sworn enemies, have worked together on this one issue.  Confidentiality is one of the things they agreed upon.  Now the Ninth Circuit - gee, haven't I heard that name before? - has ruled that the results must be turned over to people who are 100% guaranteed to leak them to the press. 

The natural result, of course, will be to give the players' union a powerful incentive to refuse further cooperation.  As Bob Lanza, former general counsel for the NBA players' union, told Jorge Ortiz of USA Today: "I think this could be absolutely devastating to the players associations' ability to agree to this type of testing."

But does that matter?  No.  The only reality is what occurs inside the courtroom, and inside the courtroom the big thing is not the integrity of a sport beloved by millions, but rather ... rather ...  Actually, it's not at all clear what the point of the Ninth Circuit's ruling is, except to prove that federal courts can do whatever they want, and you're going to take it and like it.

An article in the September 28, 2006 Economist contained an article about the pending EU memberships of Bulgaria and Romania with this passage:

Romania is at least willing to prosecute corrupt politicians, thanks to a fearless non-party justice minister, Monica Macovei. In Bulgaria the process has barely begun. Three ministers from the same party are seen as especially corrupt. A foreigner with a big, troubled investment says of one: “My business will close if his ministry doesn't give me the permission I need. My lawyer keeps on getting phone calls offering to ‘solve’ the problem—and that involves either a bribe, or cutting one of the minister's friends in on the deal.”

In the previous government, a minister once said to an investor that “fences in this country can be high or low. The right friend can make them low. You should meet Mr Pavlov”, before introducing him to a notorious gangster. The judiciary, autonomous to the point of lawlessness, is a big problem. One judge is nicknamed “servant” because of his docile bribability.

That phrase, "autonomous to the point of lawlessness," contains an important insight - one entire missed by headline writers who tell us that "O'Connor Worries About Courts' Autonomy."  The word she actually used was "independence."  We want our judges to be independent of political pressure for the same reason we want them to be free of political bias.  But we emphatically don't want our judges to be autonomous - at least not in the sense of being wholly self-governing or "responding, reacting, or developing independently of the whole". 

The American Heritage Dictionary's more-reassuring definition of the word, which includes "autonomous judiciary" as an illustrative phrase, also lists the meaning "Independent of the laws of another state or government; self-governing."   When the judiciary becomes a state within the state, independent of the laws of the greater state, then, Houston, we have a problem.  And we do.

Examples are so common we've grown inured to them.  There's the Supreme Court tradition of kicking off the term with unanimous reversals of Ninth Circuit decisions.  (See post 207.)  That means: there's the Ninth Circuit tradition of issuing opinions that cannot seriously be defended as lawful by anybody arguing in good faith.  Sound too harsh?  Consider this passage from a per curiam Supreme Court opinion:

All of the mitigating evidence, and all of counsel's prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court's lengthy and careful opinion.

That is, Judge Pregerson of the Ninth Circuit (more here) deliberately lied.  He was operating independent of the truth, and indeed of reality, but I'm pretty sure that's not the kind of judicial independence Justice O'Connor had in mind.

I witnessed another example of Ninth Circuit autonomy during my recent visit to Washington, when I heard the following exchange:

Chief Justice Roberts: Your friend [the slightly sick-making jargon used in the Supreme Court to refer to opposing counsel] began his argument by saying you don't defend the decision of the Ninth Circuit below on aiding and abetting.  Is  that correct?

Mr. Meade: We do defend the judgment of the Ninth Circuit.

Which means: We defend the judgment - the ultimate result - but not the reasoning employed to justify that result.   Or, in fine: Yes, it's correct. 

In this instance, too, the Ninth Circuit relied on reasoning that a competent lawyer arguing in good faith simply could not defend as legally correct.  Which unavoidably means that the judges on the Ninth Circuit who joined that opinion - or, to be fair, the judges who joined the earlier, published opinion on which it was based, or voted against en banc rehearing of that prior opinion - either knew it was unjustified and didn't care, or were too dumb (or, more charitably, too disengaged) to notice.

Nonetheless, the Ninth Circuit, in my view, is treated somewhat unfairly in the press.  (See post 11.)  That's not because it doesn't deserve its reputation, but because other circuits do, too.  Consider the Sixth.  In a decision involving a relatively high-profile death penalty case, that court held - I'm not kidding - that the Ohio Supreme Court misinterpreted Ohio law, and as proof the Sixth Circuit cited a stray comment in a decision by an inferior Ohio court.  (See the dissent here.)  It's simply not possible that the judges who joined that opinion believed their holding was legally correct, or even remotely justifiable.

It's not a coincidence that two of the three cases mentioned are death penalty cases, and the third involves a relatively sympathetic permanent resident who faces banishment for a crime no worse than car theft.   It's understandable that the judges didn't like the result compelled by observation of the law.  So they chose not to follow the law. 

They chose autonomy - becoming a state within the state, independent of the laws that govern the masses.

Every once in a while a news story comes along that makes the point without the necessity of interpretation.  Consider, for example, a law professor's published comment about the case of Charles Maestas.  Mr. Maestas was an elected magistrate judge in Espanola, New Mexico, an ancient town (founded 22 years before the seasick Pilgrims got their buckle shoes sandy) at the confluence of the beautiful Chama River with the Rio Grande, twenty-some miles from Santa Fe. 

(To give some idea of the economic divide those twenty-some miles represent, it's enough to observe that many state government employees commute to their jobs in Santa Fe from Espanola.)

Maestas' approach to his judicial duties can be gauged by the following excerpt from a Court of Appeals decision in his case:

On the first tape, Defendant and Victim discussed Victim's fines, potential jail time, and suspended driver's license. Defendant told Victim that if she would get her license cleared up, he would assess only $17 in fees on each charge for a total of $68. Defendant then commented on Victim's breasts and lips. He scheduled Victim's next court date and said, "We'll see if we can try and get together before that. . . . Give me a call when you're ready."

On the second tape, Victim stated that she was at Defendant's house, waiting for him. When Defendant arrived, Victim asked, "Okay what am I going to get out of this? . . . Will you lower my fines?" Defendant responded, "Oh yeah." A sex act then ensued, the two said goodbye, and Victim stated on the tape, "I just exchanged . . . giving head to the judge to change my[,] to lower my fines."

Other women testified to similar occurrences, but Maestas was only convicted on the charge supported by the surreptitious tape recording - a striking example of the prestige a judges continues to enjoy even among 12 people  who have determined beyond a reasonable doubt he doesn't deserve it.

Maestas was convicted under a statute that made it a felony for a "public officer or employee" to request or receive "any money, thing of value or promise thereof that is conditioned upon or given in exchange for promised performance of an official act."  That might seem to cover what Maestas was doing, but - as a colleague of mine in the Attorney General's Office pointed out to the state Supreme Court - a provision of another statute seems to exempt judges from the statute.  And the state Supreme Court vacated his convictions. 

Depressing all the way around, but what's really interesting is the comment attributed to a professor:

Michael Browde, a constitutional scholar and UNM School of Law professor, served as an adviser to the legislative committee that rewrote the act in 1993.

"I don't remember any discussions about judges," he said.

But, Browde added, "I think there's a serious separation of powers problem, which of course is taken care of by the Judicial Standards Commission and the Code of Judicial Conduct."

Now, I know Michael slightly, and my dealings with him have always been friendly, and I don't mean my words to reflect on him personally, but ...  separation of powers problem?

See?  No interpretation is necessary.  Here's a respected law professor seriously suggesting that judges are above the law.  They can take bribes, rape, presumably even rob and murder, and it's a constitutional crisis if anyone tries to hold them criminally responsible.   All that can happen to them is that, theoretically, they could be removed from office.  (But see post 60 and post 103.)

Would even the most recklessly critical blogger suggest judges are so swollen with self-importance - so contemptuous of the concept of democratic rule - so out of touch with reality - that they actually believe that? 

UPDATE: Upon reflection, it occurs to me that perhaps what Professor Browde meant was something more like Pinochet's senator-for-life immunity.  Under this view, a judge remains immune from criminal prosecution in the name of separation of powers only until he or she is removed from the bench.  By the same reasoning, it goes without saying, executive branch officers have an absolute privilege to withhold materials from the judiciary while in office, right?  Sauce for the co-equal goose and all that.  

And as for state legislators and Congress members videotaped taking bribes - well, all they have to do is survive in office and, needless to say, the judicial branch has no jurisdiction over them.  Right?  Not until they're expelled by their institution.  It's a separation of powers thing.

(Immunity is best, but almost is good is having your judge be a member of the same good ol' boy network as yourself, though the risk remains that an among-friends dismissal of an indictment could be reversed on appeal by some do-gooding Virginian - proving, once again, that Virginians are at least half-Yankee anyway.)

This blog has asked a couple of times what it takes to fire a judge.  (See post 60 and post 103.)  Firing a judge is not a particularly severe punishment.  In fact, it's hardly a punishment at all, because the ex-judge simply returns to the practice of law.  It is a measure of the psychological moat judges dig around their thrones  that they prefer to endure all sorts of public humiliation rather than return to the practice of a profession that requires them to appear as humble petitioners or sycophantic courtiers in front of the likes of themselves.  (See post 185.)

Judges can engage in outrageously unethical, abusive and downright illegal behavior and not be removed from the bench.  (See, e.g., post 92 and post 108.)   And members of your state's highest court - being the ones who run the disciplinary system - are immune from all ethical rules under the doctrine of rex non potest peccare, as judicial conduct boards from Washington and Connecticut have recently confirmed.  (See post 198.) 

Nonetheless, occasionally lower-court judges are removed, and it's always instructive to see to what lengths they have to go to suffer that ultimate degradation, becoming a (shudder!) mere lawyer again.  John R. Sloop, formerly a Florida judge, demonstrated one method that proved effective: imprisoning people for the crime of following instructions from court personnel.  Sloop, whose only defense was that he was mentally unfit to be a judge in the first place (see post 87), discovered that arbitrarily imprisoning people is one way to get removed from the bench.

Santa Barbara's ex-Judge Diana Hall didn't have to go to that extreme to get herself booted.  She just had to get convicted for drunk driving - twice, fraudulently conceal the source of a $20,000 campaign contribution, and improperly question a prosecutor about the prosecutor's decision to excuse her from hearing a case. 

So we can say with certainty that it is, after all, possible to fire a lower court judge.  But the judge has to be prepared to work hard to achieve it.

It's a custom of the Supreme Court to kick off the term with unanimous reversals of dishonest Ninth Circuit decisions.  Here (and here, and here) are some selections from previous years.  (The Sixth Circuit gets unanimously reversed nearly as often, but with much less publicity - but that's another story post.)  This year, as the December days kept getting shorter, I began to worry that that young whippersnapper Roberts was going to break with tradition.  But my curmudgeonly fears were laid to rest earlier this week when the Supreme Court decided Carey v. Musladin on a 9-0 vote. 

Way back in May, 1994, in San Jose, Mr. Musladin came to his house belonging to his estranged wife's mother to pick up his 3-year-old son for a scheduled visit.  He brought a gun with him.  The estranged wife was at the house with her new fiance, Tom Studer.  See any potential for conflict there? 

Musladin knocked down his wife, then pulled out the gun.  The wife and Studer scrambled back to the house and Musladin fired, hitting Studer in the back.  Studer crawled into the garage, attempting to get beneath a car.  Musladin followed him and shot him in the head, killing him. 

Musladin didn't deny any of that, but claimed he thought Studer and his wife's brother were attacking him with a gun and a machete (usually people faking a self-defense just claim to have seen "something 'metallic' in [the dead man]'s hand", but Musladin was very specific that the family came after him with a big ol' jungle-hacker).  You can find a fuller statement of the facts in the dissent to the Ninth Circuit's original panel decision.  

On the first day of Musladin's trial, three members of Studer's family wore buttons with a picture of him.   Here's his parents holding a larger-sized copy of the very same photo.  There were no words on the buttons, simply the picture: a photograph of a young man.

Studer's parents say that three family members wore the buttons on the first day of trial, and that the buttons were two inches wide.   Make the OK sign with your thumb and middle finger and you'll have an idea of the buttons' size.   Here's a picture.

Musladin's defense attorney asked the judge to tell the three family members to remove the buttons, but the judge said no, and the lawyer let it go, not getting any but the vaguest information about them into the record.  As Justice Thomas's opinion for the Supreme Court reveals, the Ninth Circuit knew next to nothing about the matter it decided:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

Musladin, naturally enough, disliked being in prison for killing someone who self-evidently deserved to die - after all, Studer stole his woman.  Eleven years after the murder, ten years after his conviction, he managed to convince a judge that those buttons made his trial unfair. 

The Ninth Circuit found itself asked to decide which was worse: (1) shooting a wounded man in the head; or (2) being tried by a jury that might possibly have observed three members of the dead man's family wearing two-inch buttons with a picture that might theoretically be discernible from the jury box by a juror with exceptionally sharp eyesight or the aid of binoculars.  Naturally, the Ninth Circuit plumped for door # 2.

(Of course, the court didn't admit in so many words that it was deciding which was worse, but it did explicitly rule that the one infraction must be punished before you can even consider punishing the other - and what else can that mean except that the first is worse than the second?)

The fact that the Ninth Circuit could reach that result only by violating the very statute that gave it authority to review the state court opinion was no impediment, so long as the case remained on the west coast.  But then it traveled east.  Not one justice could be found to defend a line of reasoning that commanded the respect of a majority of the Ninth Circuit's judges. 

(Here's Dahlia Lithwick's report of the oral argument.  She's obviously much more sympathetic to Mr. Musladin than I am - note her description of the way in which Musladin followed the crawling Studer into the garage before executing him.  If her description were the full story, then he didn't commit first degree murder at all.)

The case brings together a number of the threads that run through the modern American criminal justice system, such as:

1.  The people whose rights are being decided should not be given notice or an opportunity to be heard.  The gist of the Ninth Circuit's ruling was that, by stepping into a courtroom,  Studer's family members surrendered their first amendment rights.   (That, indeed, is what Justice Stevens came right out and said.)  (See post 206.)  The Studers were given no notice that their rights were being decided, and much less were they permitted to participate in the decision-making process. 

2.  Jurors are impressionable, overly-emotional morons who should not be permitted to decide cases, if it can be prevented.   For example, the sight of a grieving parent wearing a tiny photograph of their dead child will put them in such a tizzy that they won't be able to think again for the rest of the trial.  

3.  Facts can be manufactured to suit any need.  Such as: the 12 jurors in Musladin's trial were put into a tizzy.  The Ninth Circuit had absolutely no evidence that any of the jurors even noticed the buttons, and much less that the slightest tizziness had occurred.  The complete absence of evidence didn't matter: the Ninth Circuit simply pretended it existed, and that was good enough.  That is, the Ninth Circuit relied on non-evidence to conclude that the jurors had done the same thing.

4.  In our democracy, the people have no authority to control the administration of justice.  Your beliefs, feelings and sense of justice don't count unless you are (in descending order of significance) a Supreme Court justice, a federal judge, a state court judge, a lawyer, or, in certain unusual circumstances,  a party to the proceedings.

5.  The trial is everything.  There is no big picture.  There is no reality - or no reality a judge needs to respect - outside the courtroom.  That's why, 11 years after Studer's death, after Musladin's jury convicted him and the conviction was upheld on appeal, the Ninth Circuit put quotation marks around the word "'victim'" when used to describe the dead man.   A person who is shot to death doesn't become a shooting victim when he's shot, but only when a judge decides to recognize that fact.

I usually don't post in response to comments because I have no desire to emulate - or even appear to be emulating - those mean-spirited professors in the New York Review of Books or The New Republic responding to letters-to-the-editor.  However, Young PD's thoughtful comment to post 206 raises too many interesting topics to pass up.  He or she wrote:

I find it hard to believe that you think that cheering sections for parties in trial should be allowed. In my opinion there is a big difference between keeping something relevant from a jury because of its potential prejudicial effect and allowing family and friends of a victim who have been told by the cops and the prosecutor that this is the guy, to come in and cheer for the state.

But if they formed a cheering section they would disrupt the trial, and that would be different.  If a banner was strung across the back of the courtroom, as Justice Kennedy suggested, then obviously the courtroom staff was involved, either in hanging it or in not taking it down, and that's different again.

But if Justice Stevens is right, and spectators have no first amendment rights at all, then the judge could have prohibited Studer's family from carrying his photograph in their wallets and purses.  (It's no answer to say a judge wouldn't know about concealed photographs - as everyone who has visited a courthouse in the last few years knows, non-judges have absolutely no fourth amendment rights inside a courthouse.) 

Then, too, do families of murder victims really come to the courthouse to cheer on the state?  I think it's always a mistake to think of crime, violence, death, justice, suffering and grief in terms of trials.  The trial is an itty-bitty part of a very big thing.  The victim's family doesn't attend the trial out of enthusiasm for the prosecution.  (Indeed, in my experience, families are often suspicious of prosecutors, even hostile, expecting at any moment to have the rug pulled out from beneath them.) 

The family attends the trial because it's one part of the worst thing that has ever happened to them.  They don't want the prosecution to win; they want justice for their loved one, and peace within their own souls.  The verdict is no more than a signpost along that very long road.  For the lawyers and the judges, it's the destination.

That's not because we're shallow, but because we're involved in the case only through our professional lives.  The deaths of strangers have very little emotional meaning to anyone, anywhere.  Lawyers and judges can read about Musladin's execution of Tom Studer with the same emotion with which they - and everybody else - scan the obituary page.   If you don't recognize the name, it really doesn't mean very much.  Tom Studer's family can't do that.

It's not that the victim's survivors are viewing the case emotionally, while lawyers and judges are objective.  Rather, the emotion experienced by the lawyers and judges is inward-directed.  (Monitor your emotions as you scan the obituary page.  It's not that you're emotionless, it's just that your emotions are occupied with things other than the names of dead strangers.)  During the trial, it really is all about me, about the impression I'm making on the jurors, about what I need to accomplish with this witness, and what I need to do after dinner to get ready for tomorrow. 

For a majority of the judges of the Ninth Circuit, Tom Studer's death was an opportunity to act out the public ceremony of self-righteous superiority while simultaneously experiencing the illicit thrill of exercising arbitrary power - apparently a mixture of speedball-like addictiveness.  I imagine it's rather like the emotional experience of priests who preside over solemn mass knowing they'll be fondling the altar boy in the sacristy before the last parishioner is out the door.

This is all very different from the emotional experience of the victim's family, which is outward-directed.  They're not more emotional; their emotion is more noble.

The great error of judges and lawyers - the error that I think is right at the heart of so much that has gone haywire in our system - is the solipsistic self-importance of thinking that what we do is the important thing.  It's as if UPS, DHL and FedEx drivers all became convinced that the highest priority of a package-delivery service is to load the truck well.  If it's not well-loaded, a proper sense of priorities requires us to unload and start all over again.  As for those people who make such a big deal about wanting to receive their packages?  Tell 'em to take off those damn buttons or we'll empty the truck again.

Judge James Robertson of the D.C. federal district court ruled that the United States' currency was unconstitutional.  Now, I agree that there's no reason our bills don't provide tactile information of their denominations, whether braille-like bumps, a variety of sizes or something else.

Then again, I also think American money is ugly by international standards.   (Check out these close-ups of the old Irish pound or punt, using ancient Irish manuscripts as the hard-to-counterfeit background design.)  Worse yet, the uniformity of American money's ugliness makes it easy even for the sighted to proffer the wrong bill by mistake - we've all done it, or received the wrong bill in exchange.  Abolishing the dollar bill and replacing it with a small, thick gold-colored coin like the English pound coin would be another excellent idea. 

The question is: how come I don't get to make these decisions?  Why can't I just make an announcement and order the American government to comply?  Is it merely that I'm not a federal judge?  Or is there some other concept at work? - what we might, for lack of a better term, call democracy.

The underlying assumption of Judge Robertson's decision is that the people of America have no say in the design of their currency.  Congress doesn't get a vote - on the implausible theory that it already voted, when it enacted the Rehabilitation Act outlawing discrimination against the vision-impaired.  What the people or their representatives actually want is neither here nor there.  Judges, because they are the Wise People, our Clan Elders, get to make decisions for all of us.  (See post 106 and post 125 and post 159.)

Variations of that underlying assumption can be found in every corner of the modern criminal justice system.  Indeed, Justice Stevens made it explicit earlier this week, when he wrote in a concurrence: "In my opinion, there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing proceeding."

In other words, victims of violent crime, and the survivors of victims, "shed their constitutional rights to freedom of speech or expression at the [court]house gate."  By virtue of their status as non-lawyer weaklings, victims and their survivors are "so far inferior that they had no rights which the white man was bound to respect".

Stevens' point, of course, was that the work of the judges and lawyers is the only thing that matters.  Everything else - everything else in the world - is less important, by definition.  If your constitutional rights impinge on the autonomy of judges, then your constitutional rights evaporate.  That's the assumption behind his  entry in the competition for all-time most-fatuous Supreme Court decision, the one ordering the political persecution of the President through the judicial system to continue as long as right-wing billionaires were willing to finance it. 

Judge Robertson ruled that 300,000,000 Americans have no right to have any say in the design of their currency.  It might seem strange to phrase it that way, and probably Robertson himself used different words.  But the underlying idea isn't strange at all, at least not within the make-believe world of the courtroom, especially the criminal courtroom.  Our judiciary is dedicated to the proposition that deciding how much criminal violence is too much is entrusted to the Clan Elders.  Now, finish your snack and take a nice nap.

Robertson's ruling was purportedly based on a statute (though I doubt even he believes that), but the mindset it reveals is the mindset of the entire judicial project of the past half-century.  The mindset is: You don't count.  You're not a judge, you're not even a party to this case.  You have no rights that a judge is bound to respect.

The point of any constitutional ruling is to declare the topic of the ruling off-limits to the influence of majority rule.  Every constitutional decision puts another area of our public life outside the reach of democracy, and today virtually every area touching on the administration of criminal law is dictated by rulings that purport to be based on one or another Constitution.  The 300,000,000 don't have a say in the matter.  That's not a side-effect; it's the point.

There's a Forbidden City in the middle of our public square, an area into which commoners are not permitted to tread.  Stevens and his fellow judges have spent much of the last 50 years razing the surrounding neighborhoods to add new wings to it.  In this week's concurrence, Stevens was acknowledging the Forbidden City's existence and explaining exactly who are the commoners forbidden to set foot in it: everyone except judges and their servants, the lawyers. 

Yesterday in a bookstore I looked at a copy of Jim Newton's new biography of Earl Warren.  The jacket copy - for which the Penguin publicity department, rather than Newton, was presumably responsible - mentioned Warren's enthusiastic support for reviving the 19th-century California custom of persecuting Asians.  (See post 196.)  The jacket copy describes this as "one of the few blemishes on an otherwise progressive record."

The famously "idealistic" Woodrow Wilson was the President who inaugurated segregation in federal employment, and in his 1916 campaign against former Justice Charles Evans Hughes, Wilson's thin victory margin may well have been his appeal to the racist vote (remember than Blacks were generally not allowed to vote, despite the 15th amendment - Wilson counted on that).  

For example, in a campaign speech in St. Louis, our idealistic President accused Republicans of "'colonizing' imported black voters in a fraudulent attempt to pad the electoral rolls."  Less than a year later, by no coincidence, East St. Louis was the site of the first of the anti-Black pogroms of the dreadful 1917-23 period - pogroms that Wilson made no effort to suppress.

It would be nice to believe the "scholarly" Wilson was being cynical in his campaign speeches, but he wasn't: his racism was sincere.  More than that: it was at the very core of his supposed scholarship.  Some of his most grotesquely racist comments, directed against Southern Europeans as well as the more traditional targets, can be found in his multi-volume History of the American People.  (Check out vol. V, pp. 17-22, 44-53, 58-64, 184-187, 212-214; a selection can also be found here at 208-213.) 

Wilson's racism played a significant part in his post-WW I negotiations, when he refused to accept a proposal by the Japanese to include in the League of Nations' covenant an explicit recognition of "the equality of the yellow race," to use the phrasing found in this history of Japanese-American relations.   Wilson's racism gave a clear message to the Japanese of the interwar years: they couldn't expect to share the Pacific peacefully with the United States, and needed to start considering another modus vivendi.

So how do his biographers treat Wilson's racism?  Louis Auchincloss, the chronicler of WASPy law firms, called Wilson's support for segregation a "stain" on his presidency - almost as gauche, one imagines from the wording, as spilling gravy on a linen tablecloth.  Wilson's suppression of political dissent is another "stain."  The current holder of the franchise for scholarly biography of Wilson, Arthur S. Link, calls his subject's record on race a "blot."

Andy Warhol once wrote, or rather spoke into his tape recorder and had some assistant type up:

When I did my self-portrait, I left all the pimples out because you always should.  Pimples are a temporary condition and they don't have anything to do with what you really look like.  Always omit the blemishes - they're not part of the good picture you want.

The Wilson apologists' use of "blot" and "stain," like the Penguin copy-writer's reference to the "blemish" on Earl Warren's record, convey the same idea, but less forthrightly.  They mean to imply that Wilson's and Warren's  attitudes toward race and free speech don't have anything to do with what those men were really like.  The injustices these heroes perpetrated, the sufferings they imposed on so many innocent people, were external to their achievements, mere pimples on the angelic face of public service.

Instead of looking at their concrete accomplishments, the biographers all tell us, we should focus on their intentions, or rather on their public formulations of their intentions.  See?  They said all sorts of noble things.  That's what's essential about them, not what they actually did.

I recently traveled to Washington to attend a conference on Supreme Court practice put on by the National Association of Aspiring Governors (a joke, I'm sure, only a few seconds younger than the oldest state attorney general's office).   As explained on the NAAG website, the conference featured "[p]anels of experienced Supreme Court practitioners [who] addressed oral argument, written advocacy (including petitions for writs of certiorari and oppositions thereto, merits briefs, and amicus briefs) and more."

One of the extremely distinguished panels even included Tom SCOTUSblog himself.   Roger Daltry might have been talking about our conference when he sang, "The crowd went crazy when Tommy hit the stage".  Security was able to restore some semblance of order after just a few minutes, though I have to say the screaming sometimes made it hard to concentrate on what was being said.

Other stars of the Supreme Court bar who shared stories and advice with us included Donald Ayer, Virginia Seitz, Carter Phillips, Michael J. Wahoske, Beth Brinkmann, and a whole bunch of other ex-Supreme Court clerks now billing the big bucks at various mega-firms.  All of them very nice, well-spoken, funny, informative, somewhat clannish, and respectful. 

Deeply respectful.  They seemed as much in awe of the Supreme Court and its godlike members today as they must have been on their first day of new clerk orientation.  In the two days of the conference I didn't hear a single disparaging word, or even a cynical joke, about the justices or their institution.  The tone was more than just respect for power; it was closer to hero-worship.  It's hard to imagine a similar group of lawyers who represent clients in high-stakes matters before, say, the United States Senate having quite the same reverential attitude, though an argument could be made that the Senate is among the world's top-1o deliberative bodies.

I could think of three explanations for the gee-whizness of it all.  The first and most heart-warming is that the Supreme Court is the only institution of government that has earned the unadulterated respect of everyone who has benefited from its infinite resources of disinterested sagacity, which is to say everyone.  (With a single exception.  See post 196.)  In this age of weary cynicism, isn't it refreshing to know that one institution of government remains a ________ [insert hackneyed image here.  Example: beacon in the darkness.].

A second and somewhat less inspiring explanation is that the importance of Supreme Court practitioners depends wholly on the importance of the institution they serve (or perhaps service).  Members of the in-group talk up the Court as a way of talking up themselves.  Emphasizing all that is unique and demanding about litigating in the Supreme Court is a form of boasting.

Both those explanations might have an element of truth, but I think a third goes further than either, and that looks at the sorts of people who become Supreme Court specialists.  As mentioned, most of them are former Supreme Court clerks, and you don't win a position as a Supreme Court clerk with an attitude. 

The clerks are all people who graduated near the top of the class at one of the elite law schools.  (Tony Mauro published some famous articles a few years back demonstrating that the justices think along the same lines as U.S. News and World Report, hiring most of their clerks from the magazine's top 10 schools.)  That tells you right away that all the clerks are smart, hard-working and focused. 

They're not people who waste time questioning why they're doing what they're doing.  In law school, they weren't the type of people inclined to fritter away precious study hours attending concerts, visiting galleries or museums, engaging in meaningful relationships with fellow human beings, reading for pleasure, or any of the other frivolous things that so often distract students from their work.

Furthermore, they're people who have learned the knack of winning the approval of powerful people, and have then applied themselves to exercising that knack systematically.  References from professors got them clerkships with tied-in judges of the federal courts of appeals, and recommendations from those strategically-placed judges led to the Supreme Court clerkships, and the approbation of the justice will cast a golden glow over the entire future legal career of the 27-year-old ex-clerk.

Now, I've worked with two ex-clerks, both of whom have been fabulously successful, and both of whom I greatly admire.  Both are far more disciplined than myself, exhibiting a capacity for work far surpassing my own. 

I can illustrate my point by describing my law school experience.  I was glad to get high grades in the law classes I enjoyed, which were taught by professors I respected, but didn't much mind low grades in boring classes taught by the bad teachers.  People would laugh when I'd say, "I'm not going to let classes get in the way of my education," but I wasn't really joking.  I'm confident that thought never occurred to my ex-clerk friends.  Or if it did, they successfully suppressed it.

The club of ex-clerks that make up the Supreme Court bar is composed of people who bought into the system completely during law school, and in the critical first two years after graduation.  In some ways it's actually rather touching to discover that the same mode of unquestioning acceptance that got them the clerkships has helped them to the very pinnacle of professional success.  The formula works.  All you have to do is buy into it, and then keep buying, and never look up.

Some years ago I said about an appellate judge, "At least he/she is smart."  (Well, I didn't actually say "he/she", but I don't want to make my specific meaning too plain.)  I was talking to a friend who once worked at ("clerked on") that judge's court.  My friend said, "I used to think that, too, but then I realized he/she is just a bully."   The intimidating effects of a great intellect can be achieved by techniques that are simple to learn.  In just seven days ...

I've long wondered to what extent Justice Scalia's reputation as a brainiac depends on his storied domination of oral argument, his way of badgering attorneys who appear before his court.  As it happened, I was present in Washington last Tuesday and got to hear Scalia pose a rhetorically-loaded question to an assistant solicitor general. 

The attorney waited for Scalia to pause, then started to answer.  But he hadn't gotten two words out of his mouth before Scalia interrupted, posing the same question again, but this time even more belligerently.  Again Scalia paused, leaning forward as if in anticipation.  And as soon as the lawyer started to answer - as soon as the first sound was out of his mouth - Scalia interrupted again, asking the same question yet a third time, more aggressively yet.  (A reporter for the Rocky Mountain News told readers how "Scalia asked repeated questions", which is one way of putting it.)

It's easy to earn a reputation as a debating master when lawyers before your court are formally instructed - as advocates before the Supreme Court are formally instructed (see page 5 of this official guide to attorneys) - to cease talking as soon as a justice begins.  Scalia counts on that, knowing that his rhetorical points will seem unanswerable so long as he can prevent the attorney from actually answering them.