JUDGING CRIMES

A couple weeks ago I attended a faculty workshop led by Mark Taylor, an entertaining speaker who had a lot to say about the experiences and expectations of people born in the 1980s, a cohort he calls (with the requisite cutesiness) Generation NeXt.  He pointed out, for example, that today's high schoolers are the first generation of Americans who can go shopping while sitting in class, thanks to cell phone web connections.

One of the features of post-modern society he mentioned is that laws assume the place of morality.  Or, as my notes read: "No morality, only laws."  Sound too pat?  Here's the Interior Department's Inspector General earlier this month:  "Short of a crime, anything goes at the highest level of the Department of Interior." 

A New York Times editorial about the scandal spelled it out: "The office of government ethics eventually ruled that [the Interior Department's Steven] Griles had not violated any laws."  Even the Times' professionally indignant editorial page writers didn't notice anything odd about something called an ethics office giving a pass to conduct so long as it was not actually illegal.

Then today we learn that Republican leaders of the House have known for the better part of a year that Republican Congressman Mark Foley engaged in what might be called IM-sex with an adolescent page but took no action.  The GOP honchos excused themselves this way: 

Rep. Thomas Reynolds, head of the House Republican election effort, said Saturday he told Speaker
Dennis Hastert months ago about concerns that a fellow GOP lawmaker had sent inappropriate messages to a teenage boy. Hastert's office said aides referred the matter to the proper authorities last fall but they were only told the messages were "over-friendly."

Now that Foley has resigned, Hastert declared with righteous indignation that his "resignation must now be followed by the full weight of the criminal justice system."  So Hastert excuses his reluctance to protect teenagers working in the Capitol by saying he was informed it's not a crime for a middle-aged authority figure to ask them about masturbation techniques.  But then he shows his enthusiasm for protecting the pages by encouraging someone to prosecute the non-crime.

The criminal law is the absolute lowest standard of socially-acceptable conduct.  Drop below this standard and you can't be a full member of our society any more.  You can't vote, or carry firearms, or run for many offices.  You might have to live for years in a hideous little room surrounded by people even more dangerous than you.  Or, if you're lucky, maybe you'll get to stay home with an ankle bracelet, allowed out of the house only on Sunday mornings to go to church.  Check in with your probation officer weekly, or even daily.  Oh, and pee into the cup, if you please.

To equate ethics with the criminal law is the same as saying we have no ethics at all.  It means anything goes so long as it's not (1) specifically prohibited and (2) so serious we won't even let you live freely among us any more.

A couple readers - me-mo and Darrel Jiles - have pointed out the great New York Times series on upstate justice courts.  Read it quick, before it disappears behind the Times archive bulwark.  Here's part 1, part 2 and part 3.  (Notice I said "read it quick", not "read it quickly" - the latter isn't possible, I'm afraid.)

There are too many hilarious / hair-raising episodes to recount.  A blog like this can almost pick out paragraphs at random, like this one:

[A] 76-year-old Elmira man who contested a speeding ticket in Newfield, outside Ithaca, was jailed without even a warning for three days in 2003 because he called the sheriff’s deputy a liar.

Or this one:

A 17-year-old girl had stayed out all night, then fought with her family and wound up facing a harassment charge in court in Alexandria Bay, a busy tourist village on the St. Lawrence River. The justice, Charles A. Pennington, a boat hauler with 23 years on the bench, took her not-guilty plea on a Sunday in 2003.

But when told that the girl had no place to go, the judge did not send her to a women’s shelter or alert social service officials, as local justices typically do. He took her home.

I liked the mother's comment about that one: "Sure, he can tell the difference between the stern and the bow,” Ms. Rogers said. “But what does that have to do with making major judgments about people’s lives?”

But what's most startling about the series isn't that the justices misbehave, but that a state as rich and lawyer-ridden as New York begs them to.  "[T]justices’ pay is often meager — as little as $850 a year".   A retiree could make more than that as a crossing guard. 

As for their legal training, "Those without law degrees must take six days of classes at the start. Lawyers do not have to attend, but all justices must take a 12-hour refresher course once a year."  One justice told the toothless disciplinary board: "I'm almost like a pilot flying by the seat of my pants."  The difference, of course, is that when the pilot crashes, he goes down with the plane.

Another justice showed an even deeper insight, though it doesn't appear the Times reporters grasped what they were hearing.  They (only the male reporter got a byline, but a female "contributed reporting", whatever that means, exactly) told us about Justice Thomas Buckley of Dannemora (closer to Montreal than most of LA's suburbs are to the La Brea tar pits), who ordered the jailing of 

a 19-year-old charged with a misdemeanor, even though the law required him to set bail. In an interview, Mr. Buckley explained that the young man had been a troublemaker “ever since he was born.”

Like many small-town justices, he said many of his decisions were down-to-earth solutions. “You’ve got to use your own judgment,” he said. “That’s why they call us judges. The law is not always right.”

The real small-town atmosphere can be found in there, and that can be a strength of justice courts (though I wouldn't expect the 19-year-old to agree - but then, what can you expect of demon spawn?).  When two neighbors are squabbling over grass clippings, like Kevin Brown and the millionaire next door, having a tribal elder, some universally-respected older person, tell them to stop being so childish might be a whole lot more effective than spending thousands on mutually-spiteful discovery motions.

But the other thing the judge was telling the reporters was that the justices do something other than enforce the law.  They're living exponents of the Judge Stroessner principle (see post 159), semi-fossilized remnants of the style of judging once practiced by Cro-Magnon clan chieftains, dispensing a purely personal kind of justice.  

The law exists to restrain the powerful, and inside a courtroom all the power is concentrated in a single person.  When Justice Buckley said, "That's why they call us judges.  The law is not always right", he wasn't just giving a sound bite of bumptious ignorance, as the Times reporters seem to have assumed.  He was expressing what all Gullivers feel about being tied down.

Over at 3L Epiphany, Ian Best asks: "Where is the Hudson v. Michigan blog?"   Part of the reason for the founding of law reviews in the first half of the 20th century was that they provided student-written "comments" or "notes" on recent legal developments.  There was actually a reason for practicing lawyers to read them.

That day is long gone.  A quarterly or bimonthly publishing schedule seems pretty hectic when you're meeting it during those spare moments you can spare from studying, pizza-binging, nursing hopeless crushes across the lecture hall, and trying to corner some faculty member into a long-term commitment to write as many recommendation letters as changing circumstances in your future life might demand. 

But to people on the other end of the mailing list, it means  notes and comments appear months, even years, after the cases they're intended to inform readers about.  Anybody who hasn't already read the case in question can't be seriously interested in it.  So the notes and comments in the back of law reviews have gradually turned into a species of term paper, their purpose fulfilled by their writing.

As for the featured articles in law reviews, mostly articles written by professors, well ...  At the risk of sounding critical, not all of them are as pithy as might be.   (Check out these word totals.)

It's no wonder that law professors typically publish a note giving thanks to a list of all the people who read the article in draft and provided such valuable comments, etc.  I mean, how many other authors can say they have thanked in writing every person who will ever read their work?  Because, really, no matter how fascinating a topic might be as a conundrum of administrative law, by the time the article grows longer than the history of time itself, well ...  I'm sure their mothers were very proud to receive the offprint.   And justly so.  It's not easy to achieve that level of unpithiness.

Scholarship-by-accretion remains the dominant mode in law schools.  Here's a good description of the scholarly method employed by students and assistant professors alike:

In the scriptorium, or writing studio, of every monastery the brethren dipped their sharpened goose quills into their phials of coloured acid and bent over their transcriptions of ancient manuscripts.  The writing stand of each monk held two books, the manuscript on which the scribe was working and the volume from which he was copying, for to be learned in the year 1000 was to copy.  You did not innovate.  You learned by absorbing and reproducing the wisdom of earlier authorities.

Do that long enough and you have a law review article.

Given that the monks and monkettes have, in the last 5 or 10 years, turned in their quills for laptops, shouldn't they be posting instead of copying?  The old purpose of law reviews might once more be served, if Ian can convince others to take up his blog challenge.

(Incidentally, I'm deeply grateful to all those who read this posting, including in particular you.)

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.

Britain's Observer recently published a long essay by Martin Amis about political Islamism.  Describing the cult of the suicide bomber, Amis writes: "Contemplating intense violence, you very rationally ask yourself, what are the reasons for this? And compassionately frowning newscasters are still asking that same question. It is time to move on. We are not dealing in reasons because we are not dealing in reason."

This same insistence on finding reason in irrationality, sense in violent senselessness, has long been a kind of fungal growth that contaminates all attempts to talk about the extraordinarily high level of criminal violence in America.  In 1973, William O. Douglas told the world that "the causes of crime" are "the sociological factors of poverty caused by unemployment and disemployment, the abrasive political tactics used against minorities, the blight of narcotics and the like." 

The underlying assumption of Douglas's words, at least when taken at face value, was that criminal violence was a rational response to social conditions.   That view has always been embarrassed by the reality that the vast majority of people who grow up in poverty don't kill other people. 

Scratch the surface of Douglas's words and you'll find traces of the sentiment that People Like Us simply can't ask any more of people like them.  The poor dears, it's not their fault.  Civilization doesn't come naturally to them, you know. 

The number of truly dangerous people remains relatively constant, at something like one percent of the population.  Economics and education are vitally important, not because they form the psychopath's character, but because they determine what the psychopath does with his or her life. 

The opportunities available to an inner-city psychopath are limited compared to those available to the Ivy Leaguer who improves his position on the grade scale by sabotaging his fellow students' experiments.  For example, Enron appears to have been an entire corporation built on the principle of psychopathy.  And it was Fortune Magazine's "most innovative company in America" for 6 years in a row.

Here's a twisted little saga out of Lorain, Ohio (whose official website includes a section entitled "Links of Interest," the first such link proving to be "Association of Government Accountants"), a town that can be described as located on Cleveland's west side, though I imagine Lorain residents are irritated to hear it described that way.  Cleveland is on Lorain's east side, maybe.

Anyway, on September 14th the Morning Journal reported that Common Pleas Court Judge Betleski, a Democrat, had appointed a special prosecutor to investigate irregularities with respect to the nominating petitions of a Republican running against an incumbent Democratic judge.  Judge Betleski declared that he acted on request of the grand jury, and was obliged to appoint a special prosecutor because the elected County Prosecutor (who looks like Bert Lahr in glasses) had a conflict of interest.

So far so good.  Except that, as it turns out, the alleged "irregularities" in the nominating petitions are trivial beyond belief: "questions were raised" as to whether a Republican domestic relations judge circulated the petitions "but was not present when signatures were obtained."  The allegation is that the judge signed the petition as "circulator" before it was signed by three people outside her presence.  It's no hanging offense, as Mick Jagger once said, but apparently if you squint you can make that look like a violation of Ohio election law, and since it involves a judge, perhaps an investigation is warranted.

Except it was already the subject of a monthlong investigation by a prosecutor from a neighboring district, who filed a report finding no criminal wrongdoing.  And that grand jury request that triggered the whole thing?  Well, as it turns out, according to the Morning Journal, that "the grand jury foreman, David Wargo, is a Democratic political hack -- a Lorain city councilman and former bailiff for Betleski's father."  Yes, that's right, the judge's father was a judge, too.  

("Hack"  is a harsh assessment of Councilman Wargo, who has a kindly, Irish-grandfatherly face in this group photo that shows him posing near a young colleague named Betleski - apparently it's a golden name in Lorain.)

And then, supposedly Judge Betleski discussed the subject of appointing a special prosecutor prior to the grand jury request.  The person he discussed it with, according to the papers, was none other than his Democratic colleague on the bench, the incumbent judge whose sinecure was being placed at risk by the Republican candidate.  Here's an account from the Elyria Chronicle.

Betleski backed down, at least for the time being.  The Cleveland Plain-Dealer treated it as a funny little squabble between small-town pols, but the larger point isn't funny at all.  For what authority does a judge have to appoint a prosecutor?  

Distribution of powers is the Rosetta Stone of American politics, the key to understanding the judiciary's role in our government.  (See post 5.)   Madison wrote: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny."   By that definition, Judge Betleski's act of appointing a prosecutor was tyranny.  (Justice Scalia nailed this one back in 1987.)

Dahlia Lithwick is the greatest Supreme Court reporter around, but sometimes even Homer nods, and Dahlia snoozes through her recent Slate column on the Nancy Grace dust-up.  Now, I've never seen the Nancy Grace show.  Shockingly enough, I don't even get cable or satellite TV (please don't tell the authorities).  So I'm not interested in defending her, assuming she needs defending.  I'm interested in Dahlia, who writes:

In her 2005 book, Objection, Grace dismisses "legalese, arguments for argument's sake. ... None of it matters. All that matters is the truth and it remains the same, no matter how attorneys twist it and turn it and repackage it."

Grace's conviction that there is a single, simple "truth" to every case, and that lawyers and legal processes work to confound rather than clarify it, is chilling in a lawyer.

In Dahlia's capsule biography on Slate's "about us" page, we learn:  "Before joining Slate as a free-lancer in 1999, she worked for a family law firm in Reno, Nev."   It may well be that family law practitioners, who often act as  a kind of therapist for their clients, have learned to be dismissive of the concept of "a single, simple 'truth' to every case".  Therapists are interested in their patients' emotional experience, not the historical truth.

But when a bullet passes through a young woman's right index finger, enters her right temple, bisects her frontal lobes and passes out through the left side of her skull, causing almost her entire eyeball to bulge from its socket -- well, I'm afraid there is "a single, simple 'truth'" to the case.  And it's not the story told by the only other person in the house at the time, the man who told police she shot herself, clumsily putting her right hand in front of the barrel while holding the gun with a contortionist's dexterity in her left.

Furthermore, it's not a criticism of criminal defense lawyers to say that often they seek to confound ("To cause to become confused or perplexed")  rather than clarify the truth.  When the client is guilty, it's a defense lawyer's job - his or her ethical duty - to discourage the jury from arriving at the truth.  Truth is the enemy of guilty criminals on trial.

(When the person on trial is actually innocent, of course, the shoe is on the other foot, and it's the prosecutor who tries to persude the jury to return an incorrect verdict.  That's just the way the adversarial system works.)

Nor, I would have thought, is it news that the criminal justice system frequently deprives juries of information relevant to the decisions entrusted to them.  The very purpose of the exclusionary rules and all of the Rules of Evidence except the requirement of relevance is to construct a courtroom alternative to reality.   Jurors are solemnly instructed to base their verdicts on that edited version, not on the raw feed of reality.  There are many good reasons for concealing relevant information from jurors, but clarifying the truth is not one of them.

All the things that Dahlia professes to find "chilling" I think of as the background hum of daily practice.   It's  disillusioning to discover that my law-journalism hero is not only surprised at things I've long since learned to take for granted, but that she's actually indignant about having the obvious pointed out to her.

Dahlia cites a Jason Zengerle New Republic profile, which describes various criticisms of Grace's courtroom practices.  ("Defense lawyers accused her of intimidating witnesses and withholding evidence." - is there a prosecutor in America who hasn't been accused of intimidating witnesses and withholding evidence? - the naivete of journalists is frequently astonishing.)   One of the things the gool ol' boys of Atlanta said about Grace was that "she would wear low-cut blouses and provocatively lean over into the jury box", a technique that apparently works in Georgia because they don't let women serve on juries yet.  Hey, how else to explain losing to a girl?

Dahlia also writes: "Another criticism of Grace is that she privileges sensationalism, raw emotionalism, and victims' rights over the complexity of the legal process. "  The use of "privilege" as a verb is always a sign that the author isn't thinking about what she's writing - that's why you encounter it so often in academic papers.  The first two items are standard TV criticism since at least Newton Minnow's day.  Drop them and look at what you're left with.  And, mind you, it's a criticism of Grace that she cares more for the rights of victims - that is, for the purpose of criminal law - than for complexity.

And, by the way, if there's no single, simple "truth" to every case, how is it possible for lawyers and legal processes to work to clarify it?

And, oh yeah.  There's a single, simple truth about the missing 2-year-old, too. 

"Prestige" has a specialized meaning in the legal profession.  "Prestigious" is a precise synonym for "powerful" and a somewhat looser synonym for lucrative.  The equivalence with big bucks isn't perfect: a billboard practice might be lucrative but it's not  prestigious.  Nonetheless,  as a rule of thumb, the word "prestige" is used in the legal world to refer to power and money.

A second, related rule of thumb: Lucrative = boring.    Prestigious firms can be identified by the sky-high salaries they offer law school graduates, but the salaries are high for the same reason the witch's house is made of gingerbread.  No one would submit to stressful tedium for less.

The tedium of prestigious legal work is no paradox: smart and ambitious people won't do uninteresting work unless they're paid exceptionally well, and they draw the line at degrading work unless the pay is outrageous.   One of the bon mots customarily attributed to Churchill, the one about haggling over the price, is generally understood to refer to the recruitment practices of prestigious law firms.

The lawyer as family retainer has long since faded into the hazy distance of nineteenth-century English fiction, but lawyers at prestigious firms remain a variety of servant.  They're corporate butlers, involved in the dynamism of capitalism the way a highly skilled caddy is involved in the Masters golf tournament.  High pay is compensation in the psychological as well as financial sense.

I would have thought that Cravath, Swaine & Moore was the the most prestigious of all firms - in fact, its website says it is - but this survey says it's fallen to number two.  Kind of a Harvard / Yale thing, I suppose.

Balzac said that behind every great fortune there is a great crime.  I'm not prepared to say that behind every prestigious law firm there is the monthly practice of mail fraud, but in the case of Cravath, Swaine & Moore, there's an earthier sort of crime.

At least, that's according to John T. Noonan, Jr., who himself followed the power path to prestige.  In his book Bribes - the only fat footnoted book about the law ever to be published without a subtitle, though the hardback edition does have a wordy blurb on the front cover - Noonan describes the receivership proceedings involving Williamsport Wire Rope Company, which he describes as "a small corporation coveted by its chief creditor, Bethlehem Steel."

Bethlehem Steel, in turn, was represented by Hoyt A. Moore.  Yes, that Moore.  (Still ... Hoyt??  Shouldn't it have been his mother's aristocratic maiden name, or, failing that, a name shared by at least one post-Ethelred English king?)  According to Noonan, Moore oversaw the shoveling of $250,000 to a federal judge, Albert W. Johnson, who ordered the smaller company into receivership and then "manipulated its receivership so that eventually in 1937 Bethlehem was able to acquire the company at a bargain price."

Moore was put on trial but got off by pleading the statute of limitations - a litigation coup oddly unmentioned on the firm's website.  However, his partner Swaine once wrote that Bethlehem was Moore's principal client, adding, "No lawyer ever unreservedly gave more of himself to a client."  It's hard to be less reserved than a criminal, but what he gave wasn't so much of himself.

One of my colleagues clerked for a justice of the state Supreme Court who followed a simple rule when deciding whether to grant review of a decision of the intermediate appellate court: if the Court of Appeals' opinion was more than 10 pages long, it needed to be reviewed, because that length indicated the judges were up to something.

It sounds silly at first.  But as a rule of thumb it's pretty reliable, because there are few legal problems that can't be resolved within 10 typewritten pages - if, that is, the court is applying existing law.  You don't have to justify your adherence to precedent.  Greater length generally means that the judge isn't applying pre-existing law, but is doing something he or she feels compelled to explain.

Another useful rule of thumb is that judges reserve their "eloquence" for opinions that need a little bolstering.  No judge uses fancy language to follow existing law.  So you don't really need to wade through the 82 pages of the Second Circuit's recent decision concerning New York's method of selecting judges to get the bottom line.  It's enough to read the first sentence:

This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people.

Gee, wonder which way the case comes out?  That attempt at eloquence is the responsibility of Judge Chester Straub, a one-time New York State Assemblyman and State Senator.  Straub knows quite a bit more about the way judges pull out their patronage plums than most people.  This is from his official biography:

 Judge Straub was Chair of Gov. Mario Cuomo’s New York Statewide Judicial Screening Committee from 1988 until 1994 and of the First Department Screening Committee from 1983 until 1994. He was a member of Senator Daniel Patrick Moynihan’s Judicial Selection Committee from 1976 until 1998.

And that, boys and girls, is how you get to be a federal judge: you provide service to the party and make yourself useful to powerful politicians.  There's something indescribably aromatic about federal judges condemning the ghosts of Tammany's tigers for trying to replicate the federal system in miniature.

So from a judicial selection system heavily weighed toward the federal style of backroom deals, New York will presumably move to a system in which doing favors / paying one's dues / serving as a bagman will be more evenly balanced with big money media campaigns. 

The sense that there's something seriously wrong with New York's judicial selection process is not a new feeling.  Richard J. Tofel's Vanishing Point: The Disappearance of Judge Crater, and the New York He Left Behind doesn't provide much information about the famously retiring judge that wasn't already conveyed in Morris Markey's October 11, 1930 New Yorker article. 

But Tofel's entertaining book does provide a detailed glimpse of the sort of bargaining that promoted Joseph Crater to a seat on a Manhattan trial court.  I don't think "corrupt" is the right word at all.  "Pragmatic" gets a little closer to the key point, which is that there are many reasons other than legal acumen for turning a lawyer into a judge.  People got appointed to the bench because their appointments made sense, once you understand the point was to minimize the number of powerful men made unhappy by the choice.  Somehow I suspect that Judge Straub's stab at top-down reform won't make much difference in the long run.

Crater got appointed to the bench because he had spent many years being useful to Robert Wagner, Sr., and took care to avoid making himself obnoxious either to reform Governor Franklin Roosevelt or the gangsterish Tammany bosses, which allowed him to succeed as a compromise candidate.   Here's an American Heritage capsule summary of his famously thorough disappearance. 

(My own guess is that Crater, an appellate specialist during his years in private practice, discovered too late that life on a trial bench was unpleasantly fast-paced and stressful.  Having cashed in the political chips he had spent so many years amassing, he felt unable to free himself from a job he had asked for but experienced as a burden.   And the prospect of campaigning to keep a job that had become the focus of his clinical depression was just too painful to bear.  His wife's strange behavior following the disappearance makes sense if she was simultaneously dealing with the shock and trying to follow the instructions her husband left in a note explaining how to avoid the suicide exclusion in his life insurance policy.)

The Second Circuit's recent decision that only federal judges have the authority to decide what is appropriate clothing for children to wear in public middle schools, and that holding totalitarian hordes at bay requires moving decisively against democratic control of the trivial details of life in a public school (see post 162), should be celebrated for the triumph of Judge Richard Cardamone's clerk in the game of Opinion Bingo.

Judge Cardamone is given credit on the Second Circuit website for having written the opinion, but it's unlikely he even read it.  The giveaway is the sentence on page 23 that begins: "While the exact contours of what is plainly offensive are not so clear to us as the star Arctarus is on a cloudless night..." 

If the author of that sentence expected readers to recognize the name Arctarus, he or she would not have found it necessary to preface it with the explanatory phrase "the star".  Which tells us that the author didn't expect readers to understand the allusion; the explanatory phrase is a kind of apology for what follows.   Which is reason to wonder why the allusion was included.

The use of such an obscure word in such an awkwardly-phrased sentence to make such a banal point is nearly-conclusive evidence that Cardamone's clerk was playing Opinion Bingo, in which, as Dahlia Lithwick has explained,  "points are earned for working a randomly selected word from Webster's into any published opinion."  A judge who reads the opinion before signing it will, of course, delete such nonsense, as Dahlia loyally insists her judge always did.

Given that the 81-year-old Cardamone has been a judge since 1963, it's hardly surprising that he's too tired to care much any more, or so used to being treated like royalty that he sees no need to perform his job.  His clerk might be just a few weeks out of law school, and if so we really must congratulate him or her on earning so much free pizza and beer right out of the box. 

That greenness also explains how an opinion that pretends to be enforcing the first amendment could reach the conclusion that school officials must first examine the message of a t-shirt before deciding whether to enforce a blanket ban on depictions of drugs and alcohol in 7th grade classrooms. 

The case holds that the first amendment's guarantee that the government will not interfere with the freedom of speech requires the government to regulate t-shirts based on their messages.  All t-shirt messages fit into one of the only two possible categories (see post 137): government-approved (that is, federal judge-approved), and everything else.   Items of clothing in the second category are subject to the school dress code, but items in the first category are not.   Like Mom sorting the laundry into light and dark loads.

Can even a half-senile judge's pimply-faced clerk sincerely believe that governmental discrimination based on the message being conveyed by speech is consistent with the first-amendment?  Federal judges are occupationally prone to megalomania, but can even they believe that the first amendment tolerates - indeed, commands - that the government discriminate between messages based on the ideas being conveyed? 

I think the clerk (and/or Cardamone) was trying to say something like: only the type of speech matters.  The t-shirt conveyed a political message, and lawyers and judges tend to be interested in politics, and so therefore those types of messages are particularly important.  T-shirts depicting bands that judges have never heard of, on the other hand, aren't important, and so schools are free to regulate them.

But only a person trained in the crudities of legal reasoning, who accepts without question that reality is properly understood in terms of categories that exist only as linguistic constructions, could believe that (1) a meaningful distinction can be drawn between "message" and "type of message", and (2) that distinction defines the government's authority to regulate its citizen's speech.

But here's some categorizations of my own: the Vermont school district's blanket ban on all clothing depicting drugs or alcohol in school was a reasonable regulation consistent with the first amendment.  The Second Circuit's opinion requiring the school board to discriminate based on content violates the first amendment.  And federal judges (and their clerks) who don't understand that distinction really ought to be put into positions where they can avoid embarrassing themselves again in the future.  Here's a suggestion of such a position.