(On the other hand, the Salamander knows from racism.  His old congressional seat included the tree from which Leo Frank was lynched.)

Given that every single one of our sitting Supreme Court justices was selected through affirmative action - just try to find someone on that court who didn't go to Yale, Harvard or Northwestern (and soon there won't be any "Northwestern" in that list) - it's hardly convincing to complain that the nominee's problem is that she is ever-so-slightly different.

The real problem with the nomination, I think, is  that she's too much like the others.  Yet another federal appeals court judge!  (See post 375.)  On the other hand, she was also a trial court judge, which will make her (after Souter departs) the only member of the Supreme Court with that experience.

Appellate judges who don't first serve as trial judges are prone to stupid decisions.  Not because the judges themselves are stupid, of course, but because they literally don't know what they're doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite 'workable'." 

After three years, that test has come to mean something different in every state - literally, without exaggeration, different in each of the 50 states.  It produces contradictory results on a daily basis. It's become a constitutional Rorschach test, revealing judges' biases with hi-res fidelity.

So was Scalia lying?  Of course not.  How could he have known enough to be able to lie about what he was doing?  He's never been a trial judge, never practiced criminal law, and hasn't practiced any kind of law since 1967.  He was just guessing.

Trial court experience is far more important than appellate experience to a nominee's success as a justice.  More is at stake than the difference between pondering an evidentiary question after reading exhaustive appellate briefs versus making a decision during a whispered bench conference, though of course that's a lot. 

The other thing is that appellate judges don't have to ponder.  They don't even have to read the briefs.  They can delegate all that to their clerks or staff attorneys, and some of them do.

But you gotta love the faux-uproar over Sotomayor's "better conclusion" remark.  It's American politics at its trivializing best.  Should she have said a Latina woman would reach a worse conclusion than a white male?  No? 

Then the correct phrasing must be: exactly the same conclusion.  That would be possible only if The Law exists outside of judges' rulings, as an encyclopedia that needs only to be consulted to give the one right answer - in which case the Supreme Court's librarian could do the work of The Nine.  (Whoops.  Sorry, wrong Nine.)

But what if - just what if - Supreme Court justices aren't umpires?  What if, say, they're the only government workers entirely untrammeled by the law, because "the law" is never anything than what they say it is - never anything but an expression of their will? 

In that case, we would expect wealthy country club Republicans to vote like wealthy country club Republicans, and wouldn't need Jeffrey Toobin to tell us they do.  We might expect cautiously liberal, independently-wealthy academics with little experience of life to vote like cautiously liberal, independently-wealthy academics with little experience of life.  Gee.  Wouldn't that be wild?

Liberals are kidding themselves if they think Sotomayor's ethnicity and gender is going to make nearly as much difference as she suggested, much less as much difference as the right is afraid it will.  Female judges can be extraordinarily brutal toward women.  For instance, it was a female judge who said gang-raping a prostitute at gunpoint was theft of services - and the judge felt smug about it, too.  (See post 320.)

I had a case in which a husband severely beat his estranged wife.   Autopsy photographs showed that her entire scalp was a single massive bruise.  Her forearms were entirely covered with bruises, too - he had continued beating her head long after she stopped trying to cover up.  Want to guess the gender of the judge who described those injuries as "various cuts and bruises"? 

And Justice Ginsburg's championship of women's issues is pretty tightly circumscribed by her class.  She has no sympathy at all for women who allow themselves to become victims of violence.  One might even describe her attitude as contemptuous.  (See the links in post 375.) 

When female judges are so contemptuous toward female victims, I'm not sure if it's because they're trying too hard to prove their impartiality and/or toughness, the way ex-prosecutors and ex-public defenders sometimes bend over backwards on the bench; or if it's just gender-neutral class prejudice; or if it's a psychological reluctance to identify with the vulnerable.  Maybe all three.  Whatever the explanation, the phenomenon is real. 

Liberals who think Sotomayor's gender will automatically lead her to rule in ways that benefit women are being as dumb as Gingrich and the crackers who kept voting for him.  If she is prepared to allow the democratic branches to use their power to benefit vulnerable women, it won't be because of her sex but because of her political and moral convictions - which, of course, are the things we're not allowed to know in advance.

In the course of pulling back the curtain to reveal that an upper-crust man who devoted his adult life to Republican causes before receiving the best patronage job in America from a Republican president is, in fact, a Republican, Toobin writes:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

I haven't gotten around to forming an opinion of Roberts yet.  Presumably he's written some criminal law opinions, but I can't think of any offhand. The person whose attitudes are exposed in this passage isn't Roberts but Toobin.

There are two really interesting phrases. The first is: "defer to the existing power relationships in society."

It seems self-evident that the law itself is nothing - literally nothing - but a power relationship. Hobbes said: "when the command is a sufficient reason to move us to the action, then is that command called a LAW." I think that's right.  Whether the law is politically legitimate, whether we have a moral duty to follow or defy it, etc. - those are different and far more involved questions than whether it's law.

When we say that judges "enforce the law," all we really mean is that they make people do things we don't want to do. They make criminals go to jail, ex-ballplayers pay child support, sovereign individuals pay income tax, and so on.  Without the power of coercion, judges would be professors without students, Hyde Park Corner orators, mere bloggers.  The threat of force is the only reason anyone takes judges seriously.

(I've long thought that much of the hostility judges direct toward police officers is the resentment of complete dependence. Without cops, judges are nothing. That's why judges are constantly alert to the least hint of police disobedience.)

Obviously enough, whoever makes the law is powerful, and that includes judges as well as legislators - from which it follows that judges never do anything but enforce power relationships.  That's their job.

The only alternative to a judge "deferring" to existing power relationships is for the judge to impose a new power relationship, and when the judge does that he or she is - unavoidably, by the very nature of imposing - putting him-or herself at the top of the organizational chart. 

So what Toobin meant was that Roberts uses his political power to establish or reinforce one set of power relationships rather than another.  That's all Toobin meant, although I don't think he realized how little he was saying.

From his use of the verb "defer," I gather that he suffers from the widespread fuzzy conception that judges somehow are distinct from "the government" -- a fuzziness that judges themselves propagate with all the avidity of mold spores colonizing old cheese. (See post 133 and post 339.)

That shows up most clearly in the second really interesting phrase in the quoted passage, this one naming specific power relationships in society: "Roberts has sided with the prosecution over the defendant."

Now, I'd like to see a show of hands. When a man kills "his" woman because she wants to break up with him, how many of you agree that the really important power relationship involves the prosecution and the defendant?

I doubt if Toobin believes it, either. I doubt if even occurred to him to think about what he was saying in concrete terms. He just thinks of "criminal law" as synonymous with judicial opinions, and the opinions as expressions of the authoring judge's political views and/or moral purity.  Which, I think, is how many judges see it, too: they're the important players.  You know, the powerful ones.

Without lawyers and the lawyers who go on to be become judges, he said, society would be prone to "private acts of vengeance."

It's not like I thought Souter was a particularly street-wise guy - I mean, he admits to enjoying Swinburne, which is like admitting you like to drink Karo from the bottle while listening to Montovani. But it's still kind of shocking that he thinks he lives in a society that isn't prone to private acts of vengeance.

Of course, he himself doesn't live in such a community, and neither does anyone he's been in the same room with since he left the trial bench in 1986. But a great many Americans live in exactly that kind of society. Here's a nearly-random example, from an unpublished California Court of Appeal decision from last week:

Sometime in July 2005, Greenwood drove [his girlfriend] Hamilton's car to a Ralph's parking lot. Hamilton was asleep in the passenger seat. Greenwood left the car for a while. When he returned, he was bleeding and upset. He said he had just had a fight with Loops. Hamilton did not know Loops, whose real name was Christopher Patron. Greenwood asked Hamilton for her mace. Then he began driving around, looking for Patron. When Greenwood did not find Patron, they returned to Hamilton's apartment. ... Greenwood told Hamilton he had been in an altercation with a woman, Patron had intervened, and the fight had ensued.

A couple of days later, Greenwood received a phone call and told Hamilton he had to go out and meet someone on Sepulveda Boulevard. Hamilton drove Greenwood to the appointment and parked behind a convalescent home. Greenwood got out, walked to the side of the building and was soon out of sight. A few minutes later, Hamilton heard gunshots. Greenwood and a man named Youngster came running back to Hamilton's car. Greenwood told Hamilton to take him to Van Nuys Boulevard. During the drive, Greenwood and Youngster “were saying that Loops was right on the corner; and did they get him; and they were saying, ‘I think we got him.’ “

But the next morning, when Hamilton asked if Greenwood's mission had been successful, he said, “The wrong person died.”

That's real life. Private acts of vengeance are a way of life for tens of millions of Americans. The alternative, of involving the police and court system to resolve one's disputes, doesn't even occur to them, because the alternative doesn't offer either justice or protection from retaliation. It's more dangerous to involve the justice system than to do it yourself.

That's why studies consistently show that people at the bottom of the social ladder are least likely to report victimizations to police. (Not just in the USA, BTW.)  The people at the bottom know that the legal system - the cops and courts - aren't for them.

It's only the people at the top, such as Souter, who don't know it, and then only because they insulate themselves from the reality they impose on the rest of us.

It's occurred to me that the dominant judicial philosophy in America can be compared to that of the welfare reformers of the 1990s. The latter wanted to end what they called a "culture of dependence" by encouraging poor people to take responsibility for raising themselves out of poverty.

Our judges, similarly, seem to want to end the culture of societal interdependence by teaching vulnerable people not to rely on organized society to protect them from violence. They're on their own. For example, you say you don't want your man to hit you, and yet you won't testify against him. That's why I, as a taxpayer and judge, wash my hands of you.

Certainly better-off Americans understand the point - the private security business is booming. The Washington Post reports: "The more than 1 million contract security officers, and an equal number of guards estimated to work directly for U.S. corporations, dwarf the nearly 700,000 sworn law enforcement officers in the United States." Jeremy Scahill puts those numbers into alarming (or at least alarmist) perspective over at RebelReports. 

The numbers are a quantification of the failure of our justice system.  The government doesn't provide safety, so people who can afford it buy it themselves. But if you can't afford private security, with all the unintended consequences of over-the-topness it threatens,what are you going to do?  The answer's pretty obvious: either resign yourself to being victimized or else get the .38 down from the top of the water heater.

At least Souter's cluelessness absolves him of the suspicion that he's spent his career deliberately speeding up these social processes.

Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will."

In Justice Ginsburg's defense, she didn't believe a word of that. It certainly doesn't describe the "mission" of, say, the Kansas Supreme Court, which describes its political function rather differently:

The Supreme Court, by constitutional mandate, has general administrative authority over all Kansas courts. Its rules govern appellate practice in the Supreme Court and the Court of Appeals, and procedures in the district courts. Supreme Court rules also provide for the examination and admission of attorneys, set forth the code of professional responsibility which governs the conduct of attorneys, and include the canons of judicial ethics which govern the conduct of judges. Rules also provide for the examination and certification of official court reporters. The Supreme Court may discipline attorneys, judges and nonjudicial employees.

All of the nonjudicial employees of the Kansas court system are under a personnel plan adopted and administered by the Supreme Court.

And so on. I'm sure the Kansas justices would say they also do the things Justice Ginsburg described, but that makes it just one part of the job.

Ginsburg's description has even less to do with what the Supreme Court does, because the Supreme Court has complete discretion over its docket. The justices won't agree to hear a case unless at least four of them want to hear it, and why would they want to? Because they're indifferent?

Has there been a news article yet that didn't tag Souter as a "liberal" or, you know, "liberal"? Try searching for "Souter liberal" in Google news. My search came back with "Results 1 – 10 of about 6,000 for souter liberal. (0.27 seconds)." 

When we describe a justice, or any judge, as liberal or conservative, all we mean is than that the judge is committed "on controversial issues in advance of adversarial presentation." 

Do you think Ginsburg is committed on issues such as, say, pay equity for professional women?  (She's much less concerned about the well-being of women who don't wear power suits, I've noticed - the ones who become victims of violence.)

The Supreme Court is in the business of creating law, not applying it - which is just another way of saying that it's the only governmental agency entirely free of the law, because the law can never be anything but what the court itself says it is.

So what we're about to endure is yet another silly roundelay in which no one says out loud what they know is true: we're picking someone to make law for the next 20-30 years.

Now, if you're going to elect somebody to make law to govern your society, what's the one thing you would want to know about him or her? Right.  Nothing else matters much in comparison to knowing what he or she will do with the power you propose to give him or her, especially since you can't revoke the grant.  But by the absurd conventions of the process, that's the one thing we're not allowed to ask. We have to pretend our heads are stuck in the fantasyland described by Justice Ginsburg.

Given that we're forbidden to know in advance what the new ruler will do to us, we don't have any choice but to apply essentially arbitrary factors to evaluate his or her fitness for the job.  In the media, the arbitrary markers of choice are race / ethnicity and gender, which (as Clarence Thomas continually demonstrates) makes no difference at all to a justice's actual exercise of power over the lives of Americans.

Here are some factors that would actually make a difference.

DEFINITE DISQUALIFIERS

1.  Being a federal appellate judge should be an absolute disqualifier.  Every member of the current court is a former federal appeals court judge, and it shows.  People who have devoted a substantial part of their lives to an institution, and enjoyed great professional prestige as a consequence, will remain loyal to it.  They will refuse to think ill of it.  They will get all teary-eyed and sentimental about it. 

2.  Having practiced law for less than 10 years.  We currently have a court full of people who never practiced law, or only for a couple years in their youths.  Scalia, Ginsburg, Thomas, Breyer - their knowledge of law is all hearsay.  They've read about it.

 3.  Being a law professor.  The chief characteristic of professors who become judges is that they demand reality conform to their ideas, rather than adjusting their ideas to reflect reality.  That happens to be the very thing that makes the current court so low-functioning. 

The inadequacy of the current justices, bright people all, have succeeded only in making the criminal law increasingly random in its application.  But they don't know enough about what goes on in the courtroom to understand that randomness is a problem.

(Query: How many of the current justices ever tried a case?  To a jury?  How many have watched a trial from beginning to end, as participant or spectator?  I don't know the answer to any of those questions, but I suspect the answer to each is less than nine.)

That's why you hardly heard about about Knowles v. Mirzayance, decided two weeks ago, and what little coverage there was missed the only particularly significant thing about it. The Associated Press dutifully sent out a dispatch that manages, in good AP style, to make it bland and boring. Google News doesn't reveal any other mass media coverage.

And yet there's something noteworthy about the opinion. Mr. Mirzayance confessed to police that he stabbed his niece 19 times and shot her 4 times, which, from a defense lawyer's point of view, can be considered the kind of thing that might reduce the likelihood of acquittal below the threshold of optimism.

The only real shot for the defense was insanity - that Mirzayance was so disturbed he didn't know what he was doing - which is hard to sell to jurors even with the strongest case. And Mirzayance's wasn't the strongest of cases:

Mirzayance initiated the crime after entering the victim’s bedroom with a knife in hand and a pistol in his pocket; he had waited until he was alone with the victim in the house before he closed the curtains and commenced the fatal stabbing and shooting attack; immediately after the murder he collected the knife and some of the spent bullet shell casings; he then returned to his apartment where he showered and put the bloody clothes into a trash bag; he concocted a false alibi on a telephone answering machine; then drove to a Burger King where he dumped the bag containing the bloody clothes into the restaurant’s trash container.

It's almost as if he appreciated that some people might think he had done wrong, isn't it?

Such intra-familial overkills are also the kind of thing that can cause divided loyalties within the family. After the jury found Mirzayance of first degree murder, rejecting his mental illness defense in the first stage of California's strange two-phase insanity-defense trials (see page 22 of this pdf), his parents surprised his attorney by declining to testify at the second phase.

A three-judge panel of the Ninth Circuit heard his appeal. District Judge Lonny Suko, dissented from the ruling reached by Judges Proctor Hug (a strong contender for the owner of the most ridiculous name in history) and Kim Wardlaw, who found Mirzayance's attorney professionally incompetent for failing to get the parents on the stand:

Further, although counsel claims that Mirzayance’s parents refused to testify, the district court’s finding that the parents did not refuse, but merely expressed reluctance to testify, is correct. Competent counsel would have attempted to persuade them to testify, which counsel here admits he did not.

The unanimous Supreme Court reversed, with this comment:

According to the [Ninth Circuit], Mirzayance’s “parents did not refuse, but merely expressed reluctance to testify.” And because they may have been willing, “[c]ompetent counsel would have attempted to persuade them to testify, which counsel here admits he did not.”

At best, the Court of Appeals’ characterization of counsel’s efforts to persuade the parents to testify is misleading. According to the Magistrate Judge, counsel testified that he did attempt to persuade the parents to testify but that their response “‘was kind of flat, and I had no influence over them.’” In his efforts to convince the parents to testify, counsel told them that Mirzayance “had no chance of securing an NGI verdict [not guilty by reason of insanity] without the ‘emotional quality from nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s testimony could provide; and ‘that they were abandoning their son.’”

The nine justices of the Supreme Court, in other words, agreed that Judges Hug and Wardlaw were liars.

Judges love to go on and on about maintaining public confidence in the judiciary. Here's a Ninth Circuit example from this year (partial dissent warning about "impact on the public’s perception of the rule of law"), and here's one from last year (refusing to take step that would "damage the public's perception of the judiciary").

The Supreme Court sounds the same note with wearying frequency. Here's Justice Alito describing "grossly prejudicial errors of law that undermine confidence in our legal system."  Justices O'Connor and Stevens each sound the same note in their separate opinions here. 

Cases such as Mirzayance tells us how wrong we are to have such confidence.  There is no pressure on federal judges to be even minimally honest in their opinions.  Most are, but only because of the people they are, not because of the institution they serve.  And most, as Judges Hug and Wardlaw remind us, isn't all.

Even before the inevitable result of the court of inquiry was announced, a lawyer pursuing the matter in civilian court blogged about it, 19th century style, by commenting to the press. Military courts of inquiry, this lawyer said,

are an expensive and stupendous farce, and are conducted on mutual admiration principles, and if there is the least possible excuse for applying the white-wash to a military man, it will be done, without regard to the beauty and symmetry of the job, and this is especially so when the complaint comes from a civilian.

I was reminded of that quotation when I learned how swiftly the New Jersey Supreme Court dealt with the prosecutor's complaint against "the bad boy of the N.J. Supremes," Justice Rivera-Soto. (See post 371.) As blogger Bob Ingle observed in a post about the white-wash - which was, indeed, neither beautiful nor symmetrical - "Supremes take care of each other."

In a letter explaining the court's decision that it's not improper for a supreme court justice to violate a sealing order,

[t]he chief justice explained that Rivera-Soto said he was not aware of the sealing order when he named the officer and that it was entered administratively without any involvement by the justices. Rabner also wrote that one party's legal briefs identified the superior officer by name.

So the orders of the New Jersey Supreme Court aren't actually entered by members of the court, but by the drones in the clerk's office, and don't have to be obeyed.  That will save a whole heap o' compliance costs, won't it?

And then, if one party's legal brief violates the sealing order, then everyone else can join in for free. That's nice to know, too, isn't it?

And, yeah, right, he didn't know about the order. That's why he reacted by saying: "I just violated that sealing order. Let’s talk about Captain Hunt." Isn't that how you respond when you discover you've just committed a faux pas? "So I just made a raucous joke about STDs at a crowded party in front of a person whose divorce was precipitated by her husband giving her one. Let's talk about it."

If Rivera-Soto didn't know about the sealing order, he hadn't read the case file before solemnly waddling into court for the oral argument. Not only that, but he apparently hadn't read the Appellate Division opinion, either, which contains passages like this one:

When the court has completed its analysis, it shall enter an appropriate protective order to secure the materials released to defense counsel, as well as any materials that may be released in future discovery. In particular, the protective order should include very substantial sanctions to truly deter intentional or even inadvertent release of the documents to the press or anyone else. The protective order must limit possession of the documents to defense counsel with an absolute prohibition against copying or distributing the documents to anyone, including defendant. Moreover, since defense counsel has acknowledged that defendant's wife has frequently released information to the press that defendant and his counsel were prohibited from releasing, the protective order should contain a specific prohibition against defendant and his counsel allowing Mrs. Williams to have any access whatsoever to the documents or discussing their contents with her. This prohibition extends to anyone with whom defendant or his counsel may have contact. The sanctions should be sufficient to dissuade defendant, his counsel, his wife or anyone else from disclosing the contents of the discovery to anyone, including the press.

Admittedly, that's a pretty dense block of prose.  But if you glanced over it, would you maybe take away the impression that maybe there was some concern about leaking the information to the press?

So Rivera-Soto's defense, in essence, was that he was too lazy to prepare for the argument: "I didn't violate the order out of an arrogant belief that I'm above the law.  I'm just a bad judge, that's all."  It's s reminiscent of the defense tendered by Florida's Judge Sloop, who thought he should be allowed to keep his job because his attention deficit disorder made him unfit for it. (See post 87.)

Can you make yourself believe that any of the other members of the New Jersey Supreme Court believe Rivera-Soto?  Me, neither.  But still, I have to agree it's not unreasonable for them to take care of themselves, when you view the matter from their point of view.  After all, what's better, being subject to the law or immune from it? If sacrificing self-respect is the price that has to be paid for immunity, then so be it.

One last source of amusement about Rivera-Soto, who has already, most appropriately, become a campaign issue.  Rivera-Soto was vetted by the then-governor's "one-man search committee, former Justice Alan B. Handler." Ex-Justice Handler has made this blog before. He served as the head of the "ethical" committee convened to determine if Judge Bill Mathesius violated the canons of judicial conduct when he wrote an opinion critical of ... Justice Handler. (See post 287.)

Handler, in short, is a person without any ethics at all, and he was the sole adviser to a rotten governor. Put 'em together and you get someone "not fit for even this national laughing stock of a court."

Anyway, CQ, whatever that sinister appellation might mean, released its (or "its") annual rankings of most dangerous states, and as always states reach the top only by resembling New Mexico in at least three of the following four areas: poverty, political corruption, frantic sprawl, and hot summers.

It's easy to understand how Nevada and Louisiana beat New Mexico at its own game, but I was a little puzzled by South Carolina sneaking ahead of us. After all, Wikipedia assures us that "Violence was relatively low in the state."

Here's a handy online flip-chart of the top- and bottom-ranked from AOL's Wallet Pop. Compare it to the same site's list of unhealthiest states. Notice any similarities?

And then we can go over to the Centers for Disease Control and Prevention site and take a look at this map of heart disease and stroke death rates.

It's easy to think of reasons why some states and regions are more violent than others. I picture the enraged North Dakota ex-husband climbing into his pickup, determined to kill the new boyfriend, but after half an hour he has to stop and buy gas. Then he passes a cafe and realizes he's getting kind of hungry. Then, since he's near the Wal-Mart, he might as well pick up a few things he needs. By then it's getting dark and more snow is forecast - not really a good time to be on the roads. So he heads home. Another homicide averted.

For those of us used to getting our information from such unreliable sources as judicial opinions, it's a little harder to think of reasons why cardiovascular health should have a geographical relationship to violence.

And then we get to accidental deaths. Accidents, of all things, ought to be randomly distributed. How could chance occurrences occur other than by chance? And yet... The map is pretty blotchy for motor vehicle deaths, too. The most violent states are also the states with the most accidents and the highest rates of death by cardiovascular disease.

Of course, people die elsewhere. Suicide, for example, turns out to be a Rocky Mountain thing. (A new slogan for New Mexico: Where Southern violence meets mountain despair!) And all those inhibited New Englanders suffer the burden of not dying young, or perhaps of not killing: check out colorectal cancer rates. I happen to live in the nation's liver disease capital (New Mexico, Land of Big Livers!) but other violent states such as Louisiana are at the other end of that particular scale.

But the correspondence between violent death, accidental injury and death, and cardiovascular disease isn't coincidence, I think. A powerful clue is suggested by yet another map: low birth weight births by state. Another hint is offered by figures 4, 5 & 6 of this report, which illustrate the depressing finding that "[f]etal and perinatal mortality rates vary considerably by race and Hispanic origin of mother." Self-evidently, race and Hispanic origin aren't the cause of those particular variations.  Those categories are capturing something about the women and children that goes deeper than skin color or last name.  But what?

Does the criminal justice system have anything to do with public health?  Most people don't, in fact, think of them as related, much less as the same thing.  But the topics discussed at the CDC's website sound like the names of divisions in a DA's office: Child Abuse / Maltreatment, Intimate Partner Violence, Sexual Violence, Youth Violence.

I've spent much of the past several months, to my own astonishment, discovering what a wonderful laboratory the criminal justice system has created for social scientists who study the effects of trauma on human beings.  Did you know we have regular academic journals with titles such as Violence against Woman and Child Maltreatment? 

Future posts will describe the things that we (that is, they) have learned about what violence does to people.  Many effects last long after the bruises, and even the scars, fade.  Low birth weight,  fetal/infant mortality and cardiovascular disease are three of the lingering effects.  Lower academic achievement and consequent lower lifetime earnings are two more.  Risk-taking behavior is another. 

The strongest statistical link of all tells us that we've finally discovered the cause of violent crime: previous violent crime.  Tolerating violence now means encouraging it in the future.   Much as with Plessy v. Ferguson, I'm afraid it's going to take many generations to begin to undo the damage the Supreme Court inflicted with just a few pompous-yet-careless words. 

Future posts will develop these themes.

Not only was the new ms. transmitted electronically, but the copy editor worked directly on the Word files I had created, rather than by hand on page proofs. The famous "track changes" feature, so potentially catastrophic for lawyers, turns out to be very handy for editors.

(Incidentally, you can already preorder the book on Amazon. Be the first in your office! You might notice, though, that the subtitle on the cover is different from the subtitle on the book description. And if anyone can explain precisely what the broken gavel symbolizes, I'd appreciate hearing from you. Not that I mind the graphic - given the limited repertoire of standard images signifying the legal profession, the image is surprisingly surprising, isn't it? Besides, broken two-pan scales would just look like fossilized spaghetti.)

Much of one chapter is devoted to the hidden conflicts of interest built into the profession. The Model Rules of Professional Conduct don't begin to address the really significant ones. For instance, the biggest beneficiaries of punitive drug laws, and especially forfeiture laws that exempt legal fees, are criminal defense lawyers: "You can either give it to me, your last friend, or you can let the cops take it." (Check out footnote 5 of this.)

Similarly, the biggest beneficiaries of expanding tort liability (after the insurance companies, who sell more insurance) are the insurance defense lawyers, who see their caseloads increase in steady and predictable ways.

But the most pervasive conflict of interest is even more camouflaged than those. That's the need to stay on the good side of judges. It requires lawyers to weigh their duty to their own careers against their duty to their clients.

In a small community, kissing ass is an absolute imperative - you can't function if the local judge is going to rule against you out of spite. Appellate attorneys spend their days trying to appeal to the 5 or 7 members of the state supreme court, or to the three members of an intermediate court's panel. A bad personal relationship with any one of them can make you a hazard to your own clients.

I always figured that's why they call it a "court" - because the lawyers act like courtiers. They pay court to judges. Judges who are sufficiently ruthless about holding clients hostage can even turn lawyers into courtesans.

But then, as with that supremely satisfying moment in A Christmas Story when Farkus gets his, sometimes lawyers will stand up to a judicial bully. One of my colleagues tried it here in New Mexico, only to be told - off the record, on the Q-T, and very hush-hush - that the super-secret Judicial Standards Commission didn't act against appellate judges. After all, the top appellate judges ran the agency.

Is it different in New Jersey? We may find out:

A Hunterdon County assistant prosecutor has filed a complaint against Supreme Court Justice Roberto Rivera-Soto, charging him with violating a court order sealing the identity of an investigator who used a racial slur while discussing former NBA star Jayson Williams.

In the complaint filed to the Advisory Committee on Judicial Conduct, Assistant Prosecutor Bennett Barlyn accuses Rivera-Soto of "inappropriate, contemptuous and injudicious conduct" that constituted a "willful and deliberate violation of the court's sealing order."

The justice's name might sound familiar. Rivera-Soto has made this blog before, for using his position to bully a school administrator. (See post 287.) (And no, he still doesn't have sufficient self-respect to admit in his official biography the name of the governor who appointed him - a man whose sexuality is the least interesting thing about his public career, but the only thing he'll be remembered for - pretty effective spin, really.)

As to why the investigator's use of what the paper so discreetly calls "a racial slur" - apparently, "the N-word" is too loaded to be effective as a circumlocution - is even remotely relevant to the prosecution of the person who owned the 30,000 square foot building (I don't think "home" is quite the right word for anything the size of a grocery store) in which a working-class person was shotgunned to death ...

Unless McGreevey's boy on the bench merely wanted to make the point that our legal system is always prepared to offer an O.J. defense to anyone who can put up a star athlete's money - which, truth be told, most Americans already know - I don't see why he wanted to talk about the investigator with the racist vocabulary.  But he did.  He said: "I just violated that sealing order. Let's talk about [the cop]."

Ever since I first heard about the episode I've wondered if Justice Rivera-Soto was trying to encourage someone to kill the cop. That might seem extreme if you haven't listened to sports radio recently. Telling obsessives how to track down someone responsible for injuring the object of their obsession seems, at a minimum, negligent. 

But to impute bad motives to the justice, a "veteran casino lawyer" described in the papers as "pompous," would imply a greater level of self-awareness than he seems to possess.  (More about the justice's pre-judicial career here.)

So let's ignore his motives and just look at what he said: "I just violated that sealing order." His readiness to admit that can only mean that he considered himself privileged to violate it, and further privileged to require a lawyer appearing in front of him to violate it, as well - which he did by demanding, point-blank, that Barlyn confirm the investigator's identity.

In short, whatever his subjective reasons might have been, Rivera-Soto's point was that members of the Supreme Court aren't bound by the same law that applies to less-exalted personages.

Richard Nixon, we were reminded this past Christmas movie season, once expressed the same view: "When the President does it, that means that it is not illegal." Another, more recent (but distinctly Nixonian) politician said something similar, too, but only "as a general proposition." It's interesting that Rivera-Soto would bracket himself with that pair - but, once again, it might be giving him too much credit to suggest he's capable of perceiving that he's doing any self-bracketing.

As for the complaint, well, I hate to be pessimistic about things like the rule of law, but, you know, the doctrine of rex non potest peccare is pretty well-established in America. (See post 208.) My guess is that if anything happens to Justice Rivera-Soto, it will be because his colleagues on the New Jersey Supreme Court are tired of having him around.

But if anything happens to Bennett Barlyn ... what with Jersey being Joisey, at least on HBO... I know a place much favored by the witness protection program, according to the writers of In Plain Sight.

(Supposedly you can watch a video of the argument here, though for whatever reason I couldn't get it to play.)

Weaver has been highly critical of Taylor and he retaliated in public with sexist derision, characterizing her detailed complaints as "sort of strange rantings ... of an unhappy human being" and the venting of "a sad and angry woman." (You know how emotional women get.) In a draft opinion circulated among his fellow justices he suggested she launch a hunger strike "as it seemed to have the potential for everyone to be a winner." (Speaking of sad, Above the Law swallowed the Chief Justice's poison.)

The papers call it a "feud" but in every instance that's come to my attention, Weaver was clearly in the right. It wasn't even arguable, except in the sense that everything's arguable to a lawyer who wants something for him- or herself. It's incredible that the Michigan newspapers don't see where their own interests lie - in governmental openness. (If this isn't enough for you, here's Justice Weaver's own website.)

But to return to the Slate article, which used Taylor's well-earned, thumping defeat as the take-off point for complaining about democracy and openness in government. What makes the article, by the head of an anti-democracy and anti-transparency organization, particularly "delusive; unreal" isn't just its premise that "the business sector" is unable to perceive its own best interests, or even its see-through pretense of offering disinterested and helpful advice.

No, it's that while accurately summarizing the corrosive effect of money in judicial races, it fails to consider why people are prepared to pour so much money into campaigns that attracted no interest at all just a few years ago.  It reports that a union official supposedly said, "We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators," without drawing the logical conclusion: the official was saying that one was as good as the other.  The seven justices are now doing things that not so long ago were done by 132 legislators.

People who run for office with an "ethical" commitment to not informing voters about what they plan to do with the power entrusted to them (see pp. 11-12 of this handbook for New York judges) now routinely substitute their policy views for those of legislators who laid out their programs, or at least their slogans, in expensive campaigns.  The word for that is "de-democratization."

So what's the alternative to judicial elections?  "Merit selection," of course, means appointment by backroom politics. It means sale of judicial appointments.  (See post 229.)  In New Mexico (state motto: "Because that's how we've always done it"), we've cleverly managed to combine the worst aspects of both systems, and a good 85% of the time the scuttlebutt among lawyers accurately predicts who will win the "merit selection" competition for an open judgeship. 

That's not because we're a particularly clairvoyant lot, but because we belong to a relatively small bar.  To calculate in advance who's going to be appointed you first have to suppress your wistful hope that this time it might be different.  Instead, you just need to glance at the list of people applying, then look up political contributions on Followthemoney.org and keep your ears open to learn who's been seen palling around with the governor or his big supporters, and you'll be able to guess with remarkable accuracy who will be appointed.

If the prediction is a little more difficult in other states, it's only because you have more members of your bar, making it harder to get a handle on the relationships.

Money and connections - that's what "merit selection" means. I've heard the general concept defended on the ground that it weeds out the absolutely incompetent, the complete morons, but that's not even entirely true on the federal level, where the Senators and White House judge-pickers are under a degree of scrutiny.  It's certainly not true in any system that doesn't receive sustained media attention.

In short, "merit selection" means the non-democratic appointment of people to make anti-democratic policy decisions.

Lawyers like merit selection for the same reason they like the concentration of power in judges' hands: the goo-goo types enjoy the delusion that they can exert some influence over the final result through the application of sufficient earnestness and commitment to the process. 

The realists know they can get what they want from enlightened despots without all the inefficient muss and fuss of democratic self-government.  That's why they make the contributions. 

Big contributions aren't the cause of the corruption.  They're a symptom.

Prop 5 is massively long - 57 sections over 20 pages of small type - making it difficult even for those of us trained to endure long statutes to be sure exactly what it does.

But the California Secretary of State's website does include this very amusing "rebuttal" to arguments against Prop 5 from Orange County Superior Court Judge James Gray, who (according to his own website) ran for Congress as a Republican and for the Senate as a Libertarian without having to hang up his robe:

Under Prop. 5, judges make the call as to which nonviolent offenders get into treatment and which don’t. Judges know how to separate dangerous offenders from deserving cases. We do it every day.

Nothing in Prop. 5 prevents judges from sentencing dangerous offenders for the crimes mentioned by opponents.

It's not really a criticism of judges to say: balderdash and blatherskite. No one's particularly good at predicting future violence except in the obvious, Tasmanian Devil cases. But judges are demonstrably bad at it.

From England's reliably excited Daily Mail we learn (if that's the right verb to use in connection with the Daily Yell):

Criminals on probation commit a murder every week, official figures show.

In the past two years, offenders under supervision have been convicted of 121 murders.

Meanwhile, 44 have been convicted of manslaughter, 103 of rape and 80 of kidnapping.

(Nice short paragraphs, no?)

In comparatively unpopulated New Mexico, our number of homicidal probationers is much more modest, according to my local paper, the Albuquerque Journal:

At least 13 people sentenced to probation in the past five years have been charged with committing homicide while serving their sentences, according to a survey of court records.

Two of them have been charged with multiple killings while on probation, bringing the total number of deaths to 16.

(Those monstrously long paragraphs!  They wind on and on like mountain roads!)

Sixteen deaths is pretty horrible, but I don't think anyone should be surprised that probationers (allegedly) committed them.  As the best recent justice of our Supreme Court mildly observed in a Halloween op-ed, "The unpredictability of behavior of an unpredictable population is a real challenge to those working in the system."

It's hard to know when some people are done being dangerous.  That works both ways, of course.  We learn about the dangerous people judges let out, but not about the undangerous sent away to prison.

There may be some excellent reasons for voting for Prop 5, but faith in the ability of judges to predict the future dangerousness of drug-abusing criminals isn't one of them.