44. The Unethical Precedent,
or
“It’s Not The First Time”
This rationalization can be another variation on the Golden Rationalization, “Everybody does it,” like “It’s done all the time” and” “We’ve always done this,” but its intent is often different. The suggestion is that because an unethical act has been done before and presumably permitted, ignored, or endorsed, that presumptively ratifies the same or similar conduct as acceptable from now on. In fact, it does not. In fact, the argument is nonsensical.
An individual instance of bad conduct may have been tolerated or forgiven on the theory that a warning was sufficient, or that the circumstances prompting it were unlikely to occur again. That didn’t mean that the conduct was desirable, responsible, fair or something that would make a good societal norm. Moreover, “It’s not the first time” cuts the other way: if this conduct is happening repeatedly and with increasing frequency, that may make it worse, not more permissible.(“Hey, this isn’t the first shell that Hamas has shot into Israel! What are you getting so bent out of shape for?”)
This extremely versatile rationalization also can carry a similar unethical rational to the worst of all rationalization, #22, Comparative Virtue, or “It’s not the worst thing.” After all, it can’t be the worst thing because it’s been done before! “Ray Rice isn’t the first man to hit his girl friend” (so it’s unfair for the NFL to punish him severely), The most common use, however, is to use “It’s not the first time” to claim a double standard. Today, arguing on Sunday Morning shows about whether President Obama was exceeding his Constitutional authority by unilaterally changing the provisions of the Affordable Care Act, a Democratic Congressman pointed out that it wasn’t the first time a President had done this. The simple response is: “So what? It was unconstitutional then, and it’s unconstitutional now. It should have been stopped the first time, if it had been, we wouldn’t be having this conversation.”
In this use of the Unethical Precedent, the unethical actor or his or her defender is laying the groundwork for Rationalization #39. The Pioneer’s Lament, or “Why should I be the first?,” which stakes out a different position. The Unethical Precedent posits that because the conduct has been done before, it isn’t unethical; #39 is the fallback: “OK, it’s unethical, but it’s unfair to punish me for it if you didn’t punish everyone else before me.”
As with all of the entries on the Rationalizations List, you should protest any time you hear someone use the phrase to justify his conduct or that of anyone else. Any time you here the phrase forming in your own brain, you should realize that you are preparing to lie to yourself to justify an unjustifiable action. Finally, any time you hear, see or read about a politician or pundit using the phrase, understand that they are 1) lying, 2) unethical, 3) not very bright, or all three.
Ethics Alarms 
Doesn’t it go, pretty much without saying, that a politician is not very bright? In general, I think it is safe to say that their only concern is getting re-elected.
This rationalization has some validity if the response to unethical conduct is unprecedented. Of course, there could be counter-rationalizations (such as aggravating circumstances) justifying unprecedented responses.
Also related to whether or not a particular type of conduct is precedented or not is the response to it. It may be tempting to think, for example, that the use of torture is a recent development due to the 9/121 terrorist attacks, a reaction to fear. As I pointed out over two years ago, that was not the case.
As I stated in greater detail elsewhere, a classic example of Rule #44 is the absurd doctrine of absolute judicial and sovereign immunity. The former is a common law doctrine, invented by judges of the Tudors’ Star Chamber for their own personal benefit. Given that the Constitution is the paramount law of the land, to the extent that it is inconsistent with that paramount law, it is not “law” but rather, an illegitimate judicial fiat, which centuries of precedent cannot validate under Rule 44. The Constitution is an absolute limit on the freedom of our agents in government to act, and Article III judges can only interpret the Constitution, as opposed to writing laws to benefit themselves.
The argument that judges might not exercise fearless judgment if they were exposed to tort liability seems to be a Rule 22 violation. If that risk was real, as Congress could indemnify them, it is hard to see that argument holding water.
Again, Professor, I thank you for the generous courtesy of your time in the other conversation. It just seems that your argument is running up against your argument, and something has to give.
1.Again, you have yet to explain why you think the Constitution prohibits immunity.
2. You also seem to vastly underrate the devastating inconvenience and peril involved in being sued. Airily saying “Yu can be indemnified” is not a solution. Being sued takes time, energy and investment, indemnification or not.
3. The instances where judicial immunity allows serious misconduct pale compared to the instances where it allows objective rulings without fear of reprisal.
4. I think you are misusing the rationalizations. They are not rules. They are excuses, used to justify the unethical. I don’t see how either #22 or #44 applies to this argument. Saying one result is better than the other is not saying “It’s not the worst thing.” Comparing likely results is essential to ethical analysis.
Oh…and don’t call me “Professor” (or Shirley). I have been a professor, but I am not currently.
“It is a vain thing to imagine a right without a remedy.” Ashby v. White, 92 Eng. Rep. 126 (H.L. 1703). The remedy of certiorari review exists only on paper, so the wrong would not be righted that way. Judicial and sovereign immunity eliminate all monetary remedies, which means that no remedy is available. The Constitution doesn’t proclaim that “No person … shall be deprived of life, liberty, or property, without due process of law, EXCEPT WHEN US JUDGES DO IT,” and as Chief Justice Marshall adds, “the case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest.” US v. Wiltberger. The legal burden is on the advocates of immunity to explain where they find it in the Constitution, as opposed to the other way around. But in any event, I submit that I have met the burden you laid down, and with gracious plenty to spare.
The Fifth Amendment is written in plain and absolute terms. It is as clear as the famed Ten Commandments’ “Thou shalt not.” Doesn’t “shall” mean “shall”? And if perchance it doesn’t, how can you say “shall” in a way that it actually does mean “shall”?
Okay, so lawsuits take time, and are a pain in the arse. Cops get sued all the time. Does that mean that we shouldn’t permit lawsuits against cops? Of course not! Getting sued comes with the territory. Why should judges be any different? Judges have plenty of time to teach classes and accept awards. And if we need to add a few more judgeships to account for the time judges spend on defending themselves in meritorious lawsuits, then so be it. Due process is always inconvenient to those in power, but it is what we expect as citizens. And if the contention that lawsuits were too great a burden for the President didn’t hold water in Clinton v. Jones, why would it hold water here? If there is a reason to treat federal judges as sui generis, it is neither compelling nor clear.
You claim that the specter of lawsuits for acts of willful misconduct would have a devastating effect on judicial independence. But do you have any empirical evidence to support this claim? Judges’ self-serving statements are of little discernible value. I can point to numerous instances where a pack of federal or state judges ran roughshod over the rights of litigants simply because they could (e.g., Erickson v. Pardus). Right-wing groups whined that the sky would fall if we ever allowed gay marriage — and the sky is still there. And as Justice Stewart suggested in Stump, perhaps a little intimidation would be in the public interest.
Perhaps I was being a little sloppy in the use of the rationalizations, and for that, I apologize. One result may be better than the other. Perhaps the jury trial ought to be relegated to the dust-bin of history. But who gets to make that call and under what reasonably transparent process? We all know that judges will always be in favor of any outcome increasing their powers, and so much so that they can’t be seen as neutral. To say that the Constitution somehow grants them absolute immunity sub rosa is to do violence to the plain language of the text and necessarily to undermine its purpose. Or to state it in the functional language of Justice Scalia, “would anyone in their right mind have ratified a constitution that empowers judges to deprive us of life, liberty, or property because they feel like it?”
Throughout human history, there have always been “disposable persons.” Two hundred years ago, they mostly had black skin. And you say that it is ethical for a government — when a judge acts, the government acts — that is ordered not to deprive any person of life, liberty, or property without due process of law to willfully disregard that pellucid order for what it perceives to be “the greater good”? “Whenever any Form of Government becomes destructive of those ends [preserving unalienable rights], it is the Right of the People to alter or abolish it.” The Framers couldn’t go there, and neither can I. Absolute immunity is certainly not legal, and I must question whether it is even vaguely ethical.
Christ, Steve:
“The remedy of certiorari review exists only on paper, so the wrong would not be righted that way.”
UNTRUE. Or incomprehensible. Laws also exist “only on paper.” What’s your point?
” Judicial and sovereign immunity eliminate all monetary remedies, which means that no remedy is available.”
UNTRUE. Sovereign immunity is not absolute, and is often waived…as you later describe, with regard to police.
“The legal burden is on the advocates of immunity to explain where they find it in the Constitution, as opposed to the other way around.”
The right to declare judicial immunity is in the Separation of Powers, and has many applications. Lawyers cannot be sued for slander or liable based on what they argue in court and in briefs. A Court created immunity. Lawyers can be punished for “frivolous cases” and defenses—it is prohibited to bring them. Court created limitations on lawsuits. Judge-made law. The Courts have the right to manage the court system, and their right to do so under the Constitution has been upheld and is settled law. That’s what the Constitution says about it—and judges have upheld it. The Judiciary has the undisputed power to police its own members, including those who practice before it. Judicial immunity comes under that function.
“You claim that the specter of lawsuits for acts of willful misconduct would have a devastating effect on judicial independence. But do you have any empirical evidence to support this claim?”
Of course not, because there has never been a US system that permitted it. We also have no empirical evidence that lowering the drinking age to 12 would be disastrous, or that having open borders would be ruinous, or that eliminating currency would cause chaos. Judges can take judicial notice of what they and reasonable people know. That allowing losers in court cases to sue for damages would compromise judicial independence is one of those certainties.
This—“Why should judges be any different? Judges have plenty of time to teach classes and accept awards. And if we need to add a few more judgeships to account for the time judges spend on defending themselves in meritorious lawsuits” is just plain nuts, Steven. It adds a conflict of interest to every single case-–can’t you see that? Police aren’t adjudicating—they are enforcing the law. Judges have to be fair, meaning they cannot be tainted by bias. The felt desire to avoid lawsuits is a bias. The need to avoid lawsuits is a major problem in health care, which is why limiting liability of the medical profession has been proposed. You don’t like the judicial system, so you apparently want to make it unworkable. This is a good way to start, I grant you.
The fact is that judicial immunity comes into play very, very seldom compared to all the cases it allows to be adjudicated without fear. All functioning systems require trade-offs; systems are not perfect. Your obsession is the perfect example of making the perfect the enemy of the good.
Here is one question about those who want to void absolute judicial immunity.
How is the appellate process inadequate? A party to a case who feels wronged by a judicial ruling, order, or decree can, you know, appeal. if the judge is wrong, the judgment is reversed. No harm, no foul, no need for monetary damages.
I agree. Steven appears not to trust the appellate process.
No, I don’t. And my cynicism is supported by overwhelming precedent, and a massive bank of academic support. A fair portion of the academic material was collected at http://www.nonpublication.com by California attorneys Ken and Michael Schmier.
Just out of curiosity, have you gentlemen ever practiced appellate law? (I did a quick database search for Jack in CA-1 and Mass, and it came up dry, but that is hardly conclusive).
I could write a dissertation on the structural inadequacies of American appellate review. “Unpublished” opinions are riddled with error, and no one at the appellate level cares because SCOTUS has declared that it doesn’t do error-correction. Every lawyer at the appellate level has to explain this to his clients, and that (per Judge Dummkopf) not even trial judges bother to read merits briefs. Professor William Richman wrote that even appellate courts have become certiorari courts, where (per Judge Richard Arhold) as many as 50 appeals can be decided in a two hour session, and the judges don’t even bother to read the opinions they deliver. Filing an appellate brief is fast-becoming a waste of time. Our system has become so decrepit that tf you don’t cut a deal prior to trial, you have failed your client.
Bradley v. Fisher is predicated on the assumption that every case could be appealed to the Supreme Court under a writ of error (certiorari), resulting in a written decision with binding precedential effect. Remove that safeguard, and the rationale for absolute judicial immunity disappears.
Last time I checked, that safeguard is still there.
You must be about 100 years old, as it was extinguished in the Judges’ Bill of 1925.
The bill did not prevent the Supreme Court from reviewing lower court rulings.
My point is that, on account of the Court’s declaration that it will not do error-correction (pursuant to the 1925 Judges’ Bill), errors and even willful acts of judicial misconduct will not be corrected. Compare that rule to the Commonwealth countries, where the writ of certiorari is always available as a matter of right. Their system works better because the safeguards are intact.
As Chief Justice Roberts observed, the Soviet Union’s 1933 Constitution had a more robust Bill of Rights than even we do. But it you can’t enforce a right at need, you don’t have it.
The flaw in our system is structural. The purpose of having one supreme Court is for that Court to exercise superintending control over lower courts, the purpose of which being to ensure equal justice under law. But if a court can disregard binding precedent whenever it finds it inconvenient, “law” as we know it ceases to exist.
If it exists at all (several states abolished it outright), sovereign immunity should be waived by implication, as it was in British law and the ICCPR. If Congress has to waive immunity, it can withdraw that waiver, making our rights perpetually insecure.
The authority to declare judicial immunity is in the separation of powers?!? Wow! Talk about ethereal emanations from penumbrae! Judges can’t even write their own procedural rules; even the power to write rules of evidence is pursuant to an express delegation of authority by Congress. 28 U.S.C. Sec. 2072. Your argument is just legally wrong, and my best guess is that you’ve never researched this. Technically, there IS no “judge-made law.” If your argument for judicial immunity depends on that, it fails.
I’m gobsmacked by your argument. Quite to the contrary, the “separation of powers” principle dictates that CONGRESS writes the laws (and the people write the Constitution), and all judges have the lawful authority to do is interpret it. Letting judges write laws and interpret them violates it, which is why Section 2072 has to exist. If you were right, it wouldn’t need to exist. Why is that statute there, if you are right?
If Congress is authorized to write the laws, it can craft laws minimizing the threat of frivolous litigation in this area. I would rather that judges have a little fear than for them to wield despotic power without consequence, but that is a decision that we as a society should make, as opposed to judges with an obvious conflict of interest.
As for judges having a conflict of interest in every lawsuit, that is absurd, as the alleged bias wouldn’t favor any party. If you issue a plainly wrong decision in favor of the plaintiff, you would be sued by the defendant, and vice versa. All this does is discourage judges from issuing plainly wrong decisions, which is the whole point of the threat of malpractice lawsuits.
Given the sloppy way in which most appeals are decided, I would estimate that appellate judges could be sued for negligence in at least five percent of cases, and with good cause. When a federal appellate panel decides fifty appeals in two hours, they are not exercising appropriate care in any of them. If you haven’t even read the briefs, how can you properly decide?
“Obsession?” With all respect, I would submit that the ad hominem is not warranted. Either I am right, or I am not. This is not a case of the perfect being the enemy of the good, but one of a constitutionally sound and more effective system replacing one that is hardly better than monkeys throwing feces at a wall. Equal justice under law should not only be a shibboleth on the wall of our Supreme Court building; it is our common birthright.
You are the one who is wrong, Steve. For example, Courts are 100% charged with the discipline of judges and ethics violations of lawyers. The SEC’s requirement that lawyers rat out illegal conduct by corporate clients has not been determined to trump state ethics rules to the contrary, all court-approved, and then sometimes ratified by the legislature. When it is litigated, it will be a Separation of Powers matter, before SCOTUS.
Congress cannot tell courts how to conduct themselves, and the concept of judicial independence springing from the separation of powers was effectively locked in by the development of institutions that facilitated the federal courts’ self governance. President (and later Chief Justice) William Howard Taft was the leader of that process, beginning with the following of his recommendation for the establishment of a conference of chief judges from each circuit to carry on independent judicial administration. Congress then set up the Administrative Office of the U.S. Courts in the 30’s, which reported to the conference of judges and provided courts with the support formerly given by the Department of Justice….an executive agency. Now the courts were in charge. The Congressional act of 1939 established in each circuit judicial councils the power and responsibility for improving the administration of all courts within that circuit. Then the Federal Judicial Center, established in 1967, gave the federal courts an agency for judicial education and court staff and for research on improving judicial administration. Courts set the rules now, and it is the correct reading of the Constitution to have them do so. You can complain about it or say that shouldn’t be where we went, but it’s not being unraveled. I trust the Courts a lot more than I trust Congress.
“Obsession?” With all respect, I would submit that the ad hominem is not warranted.
Please read up on what ad hominem attacks are, Steve. This isn’t one. I didn’t say that your opinions were invalid because you were obsessed. I said, and say, that your views on this topic evidence obsession.
Your jaundiced view of the integrity and fairness of the Courts is simply not warranted by their performance, no matter how many times you assert otherwise.
As my coach used to say, “obsession is a word the lazy use to describe the prepared.” It is an ad hominem, Jack, completely unwarranted by a fair and unbiased review of the evidence. I will ask again: “Have you ever practiced appellate law?” If you haven’t, I would submit that you really don’t know the issues, and the difference in view between the ivory tower and the trenches. I know the appellate process too well to trust it.
And what part of “pursuant to authority delegated by Congress” do you not understand? 28 U.S.C. Sec. 351 provides that “Any person alleging that a judge has engaged in conduct prejudicial … [may file a written complaint].” While I might argue that the Supreme Court does have intrinsic authority to discipline lower federal court judges pursuant to its general superintending authority, the Court has never actually attempted to exercise it. Courts say that the only valid avenue for judicial discipline is through the congressional warrant codfied at Section 351, et seq., and it is so useless that it isn’t worth traveling. And if you don’t like that assessment, take it up with Chief Judge Kozinski. In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1183 (Kozinski, J., dissenting) (“Passing judgment on our colleagues is a grave responsibility entrusted to us only recently. … If we don’t live up to this responsibility, we may find that Congress … will have given the job to someone else.”) There is no legal warrant for your claims.
With all respect, Jack, it seems to me that you honestly don’t know the law in this area.
Anyone who has ever attempted to avail himself of it knows that Section 351 is a farce. Anthony D’Amato of Northwestern has written extensively on the subject, and Judge John Kane echoed that view in the Washington Post. If you let the foxes run the chicken coop, the outcome is inevitable. Attorney Isodoro Rodriguez did a study showing that less than ten of 7,000 (as best as I can recall) complaints resulted in actual discipline, and none of it was serious. What circuits do when a judge gets too old and senile to do his or her job is have them serve as a rubber stamp on unpublished opinions. As Judge Dummkopf opined, having a mentally feeble judge on your appellate panel violates your right to due process. I can’t disagree.
I’m saying that the system has unraveled. The concept is one of a Potemkin village. And judges themselves are telling us this. Judge Posner and Judge Kozinski are the most outspoken (see his trenchant comments in the matter cited above), but they are not by any means alone.
it would be one thing for me to say this in isolation, but the weight of judicial and learned academic commentary is overwhelming. (I am working on a law review article on this subject, which is why I know it cold.) The World Justice Project declared that our legal system is the worst in the Western world, and that organization has four SCOTUS Justices on its advisory board. My view is not an outlier.
As the late Judge Arnold famously observed, if a judge decides a case one way on Monday and the same case the other way on Thursday (obviously, a paraphrase of Anastasoff), those decisions cease to be “law.” And in turn, this denies equal justice to the parties, which is “within the prohibition of the Constitution.” Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).
The evidence speaks for itself. How much arsenic do you need to find in the water before it is no longer potable? How many appalling decisions do you need to find that our judicial system is no longer adequate? The edifices of which you speak are worthy of scorn; in a world where even priests cannot police themselves, only the terminally credulous would think that judges are virtuous enough to police themselves. You can’t make that argument with a straight face, and probably shouldn’t try.
1. And thus we see your agenda, your obsession, and your bias. It is, you know, off topic completely. Does Congress have the right to take over judicial discipline? I suppose: it would be a fight, and since SCOTUS decides…well, what do you think?
2. Yes, I have practiced in the appellate system, criminal appeals, in Massachusetts. I don’t think my experience is relevant or helpful here, though.
3. I think that last post is res ipsa loquitur, Steven. You have a position, and even though the bias caused by allowing suits against the judiciary would make the conditions you revile worse, you can’t bring yourself to acknowledge the obvious.
First and foremost, a topic travels where the discussion takes it. Second, you didn’t even know that judges can’t write their own law, but only do so pursuant to the delegation of that authority by Congress. Your immaculate misconception of the separation of powers principle is disconcerting, but all it does is weaken your argument. We can’t know everything.
I think the constitutionally correct answer is that SCOTUS has the inherent authority to discipline lower court judges, in much the same way that King’s Bench did in England. But no one seems to agree, and Judge Kozinski is of the opinion that Congress can delegate that authority to anyone. Why is he wrong? (With the possible exception of Posner, he is the brightest man on the bench today, and it is usually pretty hard to argue with him.)
Apparently, you have conceded defeat, resorting to facile accusations of obsession and bias. I have reached a conclusion, and you have not been able to offer any reason to abandon it. You say that allowing suits against wayward judges would somehow cause the sky to fall, but Lord Cockburn respectfully disagrees. Should I listen to someone who spent twenty years on his nation’s highest bench, or someone who hasn’t practiced in almost twenty years?
I don’t know what SCOTUS would do if the office of Inspector General as proposed by Professor Rotunda and Rep. Sensenbrenner were created and endowed with meaningful authority. I would suspect that they would recuse themselves. 🙂 Congress is of the opinion that they have no legal authority to enforce the Good Behavior Clause (per Charles Geyh), but it doesn’t mean that judges couldn’t be criminally prosecuted by that office. If a judge violates a litigant’s rights, an indictment could be obtained by the AG without it, and the IG would make prosecution easier.
First, I apologize for being flip and dismissive in the last comment. I’ve been handling comments on the fly, and cannot give yours the detailed attention their erudition and passion justly requires.
I agree that a topic travels where the discussion takes it, and I enjoy the ride, but this one keeps going in circles. The issue is whether judicial immunity is a wise utilitarian trade off. First, my post simply explained why the trade-off exists, and why, with the principle in place, the 6th Circuit made the correct decision. Nothing you have said changes s this. Did the Constitution allow for sovereign immunity? Is sovereign immunity unconstitutional? Courts have upheld said it is not, and the same goes for judicial immunity. Go ahead, disagree. Ethically, I don’t really care. Ethically, I think, on balance, and this is all about balancing, judicial immunity is a good idea. The current case is a horrible example of it, but I think it is not too great a sacrifice to stop a deadbeat dad from getting windfall damages when 1) an un-compromised judge would probably have held against him anyway 2) the case was overturned and 3) allowing losing litigants to sue judges would open a conflicts Pandora’s box, adding one more element to an already difficult job.
Moreover, since your bias is against the entire judicial system, adding layers of review, more judges and more litigation for judges to oversee solves nothing; it just increases the likelihood of unanticipated consequences. I’ll concede that your system could be arrived at under current law. So what? It would be a mess. Moreover…
1. This just doesn’t happen enough to justify the massive problems that would result from trying to fix it. That utilitarianism. Back to the post.
2. You keep appealing to authority, as if the fact that Posner and Kosinski are smart guys, which I don’t dispute, makes their positions correct. Kosinski posted porn on his website. That wasn’t very smart. Posner, in US Williams, simply brushed aside the duty of loyalty to a criminal client. I’m no Posner, but I can tell an unethical decision when I see it, and a defense attorney testifying against a former client is it. Just because they can run rings around me in legal scholarship doesn’t mean I have to bow down before them. They are both more interested in theory than practice in a lot of their writings. This is one example.
3. All of which puts me in a position of arguing against a position that I basically agree with: in a vacuum, McCree should be sued and prosecuted. Absolutely. But doing so would do more harm than good. Your argument against that is “try it and see.”
4. This thread does not belong here, because it has nothing to do with the rationalization. I’m not justifying the applications of judicial immunity by saying “It’s not the first time.” That’s a misrepresentation, and you know it.
5. Judges make law. The Miranda warning is a law. Every time SCOTUS specifies an application of a general constitutional principle, it is lawmaking. Arguing otherwise—especially snottily, as in, “you didn’t even know that judges can’t write their own law, but only do so pursuant to the delegation of that authority by Congress,” is just semantics. If Congress doesn’t affirmatively stop judges from exerting authority in areas where Congress otherwise would, then the power has been delegated, just as the President will have the power to unilaterally amend or not enforce laws if Congress allows him to do so by being passive.
6. I did it crudely, and again, I apologize, but my reference to obsession was not done to undermine your arguments, but to place them in context, and to suggest that you are overly committed to them because of personal experience. And you essentially confirmed that. An underlying contempt for the system is, in fact, a bias, just as my belief that on the whole the system works very well, but not perfectly by any means is a bias.