judges
About Fox News’ Fake Judge
In a post on the Legal Ethics Forum, not as active as it once was but still one of the best legal ethics sites around, Legal ethicist and law professor Steve Lubet clarifies something I have always wondered about, and like a lazy slug, never investigated.
Fox News contributor Andrew Napolitano, most recently in the news for claiming that the British intelligence service GCHQ colluded with President Obama to conduct surveillance on the Trump staff during the 2016 campaign, is always called “Judge Napolitano” during his appearances. Lubet points out that he’s not a judge any more. Napolitano once served on the New Jersey Superior Court, but resigned in 1995 and has not held judicial office for more than two decades. It is apparently at Napolotano’s insistence that he is always addressed as “Judge” in Fox. His website, JudgeNap.com, refers to him as “Judge Napolitano” throughout, as does his bio on the Fox News site.
Lubet notes that The American Bar Association has held that the use of judicial titles by former judges practicing law is misleading and unethicalin connection with law practice. ABA Formal Opinion 95-391 says that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” Of course, Napolitano isn’t practicing law when he bloviates on Fox News, so it isn’t a Rules violation, but the Judge label is still misleading
The Ohio Rules of Professional Conduct, Lubet found, goes further by decreeing that it is only ethical for a former judge to use the titles “Judge” or “The Honorable” if they are preceded by the word “retired” or “former,” and the rule does not limit this caveat to ex-judges actively practicing law. Again, Napolitano is not out of compliance, because he is not subject to the Ohio Rules. That doesn’t make what he calls himself strictly accurate, or sufficiently accurate. (I confess, I have had a bias against such things ever since I suffered through a year with an insufferable high school history teacher who called himself (and insisted that we call him) “Dr. Arthur” because he had a PhD in history.) Continue reading
Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen
That’s the judge lying down. At least he wasn’t wearing his robe…
Arkansas circuit judge Wendell Griffen granted a temporary restraining order last week halting the Arkansas Department of Corrections from executing seven condemned prisoners within eleven days as it had planned, as Griffen barred the use of one of the ingredients in the lethal drug “cocktail.” A federal judge followed up quickly with anothee order likewise barring Arkansas from proceeding to execute anyone with a lethal injection. Mission accomplished, Judge Griffen decided to reward himself by attending an anti-death penalty rally in which he participated with elan, playing a condemned prisoner lying prone on a lawn chair as if it was a gurney.
What fun! And what an idiot! No ethics alarms went off, despite the fact that he was flagrantly displaying his bias against the death penalty immediately after interfering with the state’s law enforcement based on a fair and objective interpretation of the law.
State officials were outraged, and argued that Griffen’s conduct proved that he was not capable of impartiality in capital cases. Ya think?
Yesterday the Arkansas Supreme Court pulled Griffen from all pending death penalty and lethal injection protocol cases. It also referred him to the state’s Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.
Good. Continue reading
Signature Significance: The Democratic Party’s Irresponsible And Petulant Gorsuch Tantrum [Updated]
Signature significance, in the context of ethics, is when a single example of conduct or a single episode is sufficient to make a definitive judgment about the ethical values of an individual or an organization. It is something so striking and blatant that the usually valid statistical argument that one data point is meaningless doesn’t hold true. Ethics Alarms refers to signature significance frequently.
The Democratic Party’s behavior regarding the confirmation of Judge Gorsuch is signature significance. It won’t work. It will result in permanent harm to the Senate, harm that will initially most affect Democrats. It is hypocritical, irresponsible, and embarrassing, at least if the party is considering citizens who understand what is going on, admittedly a minority. It is unprofessional. It is dishonest. It is unpatriotic. The conduct is so obviously irresponsible that it is difficult to believe that Democratic leaders don’t realize it. Because it is all these things, the strategy is also very close to insane.
I just watched Senator Grassley’s address to the Judiciary Committee, ticking off l the reasons why the inflammatory Democratic rhetoric regarding Judge Gorsuch ranged from untrue to self-contradictory to ludicrous. He wasn’t exaggerating; it wasn’t a partisan speech. Grassley reminded the committee that Gorsuch had been unanimously confirmed when he was nominated to the 10th Circuit. The Senator correctly explained why the recent mantra that Gorsuch wasn’t “mainstream” was counter-factual, since he has voted with the majority on that court over 90% of the time.
Grassley dismissed as offensive and judicially ignorant (my words, not his; Chuck was appropriately mild in his word choices) the argument that Gorsuch lacked compassion and wouldn’t rule “for the little guy.” Competent and ethical judges—unlike, say, Justice Sotomayor—don’t change their decisions according to which litigant is “big,” “little,” rich, poor, black or white. Their job, duty and role is to clarify what the law is. It is only part of the current progressive delusions, most recently shown in the rulings against the Trump travel halt from terrorist-teeming Muslim nations, that judges should base their analysis on their personal and political biases, when those biases are the “right” ones.
Senator Grassley then moved to the complaint that Gorsuch “refused to answer questions.” “What this means is that the judge wouldn’t say in advance how he would rule on cases that hadn’t come before him yet,” the Senator said. Of course he is exactly right. No judicial nominee has been willing to answer such question since the Democrats politicized the confirmation process forever by voting down Reagan appointee Robert Bork, despite the judge being as qualified and brilliant a jurist as anyone nominated to sit on the Court. No judge should have answered such questions before that, either. Cases are decided on the law and the facts. A justice who has made up his or her mind before even reading the briefs or hearing oral arguments is not judging fairly or competently.
Finally, Grassley pointed out that no Supreme Court nominee has ever faced a filibuster or the threat of one. For Gorsuch to be filibustered by Democrats, despite being assessed by almost every legal expert and commentator as unusually distinguished and qualified (including the left-leaning American Bar Association, which has found conservative judges less than qualified in the past because they were…conservative), is indefensible on the merits. Continue reading
“The Good Immigrant” III, or Fake News? The Incredible Sobbing 13-Year Old
A 13-Year-Old Girl Sobbed While Recording Her Immigrant Father Get Arrested By ICE Agent is the headline at Buzzfeed. Wait, teenage girls weeping is news now? Was she the only teen sobbing this week? How is this news, by any standard?
Of course, it’s headline worthy if the objective is to provoke an emotional reaction rather than to inform the public objectively. In fact, nothing about the story is newsworthy, except as pr0-illegal immigration, anti-law enforcement, anti-President Trump propaganda and hate-mongering. Illegal immigrant and scofflaw Romulo Avelica-Gonzalez had dropped his daughter off at a Los Angeles school, and six blocks from the school his car was surrounded by immigration enforcement agents who took him into custody, just as law enforcement takes law-breakers into custody every hour of every day of the week. Gonzalez had a 2014 deportation order against him issued by an immigration judge, and violated it every day he spent in the U.S., masquerading as a law-abiding citizen, since then. He also had a 2009 DUI conviction. This wasn’t even a close call.
I’m pretty sure the children of gang members, drug dealers, muggers and serial killers also sob when daddy is taken away, and while I feel sorry for the children, it doesn’t make me want to let their fathers go free, it doesn’t mean we should change the laws, and it isn’t news.
ICE said Avelica-Gonzalez is scheduled to be deported to Mexico, where he was supposed to have returned three years ago. This isn’t cruel, this isn’t unfair, this shouldn’t be a surprise.
Brenda Avelica, a different daughter from the one heard sobbing on the viral video of her father’s arrest—YES! It really happened! The girl SOBBED! Film at 11!— said that her father has been in the US for 20 years and has four children, two of them adults.
So?
“It’s really hard what we’re going through,” Avelica told reporters. “I never thought we’d actually go through something like this. It’s terrible to feel and see your family being broken apart.”
Let me fix that for her. It’s terrible to finally have the law catch up to you when you are guilty as hell. The James brothers said that, I think. Maybe it was Bonny and Clyde. Or Bernie Maddoff. ICE agents are not the bad guys here. The elected officials, activists, and journalists who want us to think that, however, are. Very bad. Continue reading
Ethics Lesson: Judges Can’t Campaign Like Other Candidates
The Supreme Court of Appeals of West Virginia suspended Judge Stephen Callaghan for two years and fined him $15,000 for a campaign flyer that it deemed dishonest. The court said that the flier depicted the incumbent judge, Gary Johnson, as “partying” with President Obama. Johnson had visited the White House for a federally required conference on fighting child trafficking, but he didn’t see Obama there, there was no party, and no function involving alcohol. The flier was mailed out five days before the May 2016 election, which Callaghan won. Callaghan won the election by 220 votes.
The flier was “in every sense, materially false” according to the decision. You can see it above. Photos of Obama and Johnson are shown next to each other. Obama is shown holding a beer and streamers are in the background. The caption reads, “Barack Obama & Gary Johnson Party at the White House.” The opposite side of the flier read,
“While Nicholas County lost hundreds of jobs to Barack Obama’s coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama?”
After Johnson objected to the flier ( and probably threatened to sic the Judicial Ethics Panel on him), Callaghan removed the flier from his Facebook pages and ran radio ads saying the flier’s “specific characterization of the White House visit may be inaccurate and misleading,” and “candidate Callaghan apologizes for any misunderstanding or inaccuracies.” Continue reading
New Jersey Tries An Ethics Experiment
New Jersey, a state for which many would say ethics itself would be a novelty, has taken the lead in a truly revolutionary criminal justice experiment that resolves an ancient ethical dilemma in favor of mercy and compassion. Beginning on January 1 this year, New Jersey judges are expected to release all but the most dangerous and untrustworthy defendants pending their trials, often with certain conditions, rather than to require cash bail as a condition of avoiding jail.
In 2014, voters decided to amend New Jersey’s Constitution and virtually eliminate bail, responding to a national movement to reform a system that has always discriminated against poor defendants. Although bail requirements are usually modest for most offenses (a bail bondsman typically charges a defendant 10% to post the entire bond), many defendants are still unable to pay even small amounts. Then they wait in jail, often losing their jobs and causing hardship for their families. Continue reading
About the “So-Called” Judge’s TRO
Ethics Alarms had a revealing comment on the post about the grandstanding and unethical ex-acting-Attorney General’s breach of her duty to represent her client regarding the President’s Middle East immigration Executive Order. Following Judge Robart’s temporary restraining order (or TRO), the reader said, in essence, ‘See? She was right! The order was illegal, just like she said it was!’ The comment was idiotic on its face on many levels, yet it was also a fair summation of how partisan citizens have viewed the controversy. The various TROs validate the criticism of the Executive Order in their minds. They don’t, however. Judge Robart’s order particularly doesn’t. In fact, it is infuriatingly vague.
Now, a TRO doesn’t necessarily have to explain in detail what is wrong with a law, regulation or order. The purpose of this judicial act is to stall a measure that has the potential of causing a lot of disruption, unhappiness or expense from going into effect until there can be a decisive determination that it is legal, constitutional and within the power of the government entity that issued it. A judge issuing a TRO must conclude that the objection to the act is substantive, that the party applying for the TRO has a substantial chance of prevailing on the merits, and that the party has standing to object. The judge does not have to conclude that the party asking for the order is right, just that the party may be right.
However, reading Judge Judge Robart’s order, one can glean no clue as to why the TRO was justifiable, and why it is so sweeping. Although the judge writes in his conclusion that…
The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. …
[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.
…the order never states what is illegal or unconstitutional in his view. This omission has led many analysts to conclude that there isn’t anything. He just doesn’t like the order. Much has been made of the fact that Robart was a Bush appointee, so the order isn’t “partisan.” Of course, the same people making this argument, in other settings, would maintain that a Bush appointment is just a bad judge. Many, many, many Republicans and conservatives detest the President, and especially, one should remember, the Bush family. It is far from unlikely that bias against the President caused Judge Robart to employ poor judgment. Democrats cite the fact that Rorart is a conservative as part of a wonderfully convenient construct: if a conservative judge opposes them, the fact that he’s a conservative means he’s wrong, and if a conservative judge agrees with them, the fact that he’s a conservative means he’s right.
Some of the exchanges in the hearing that led to his order directly contradict his written statement that he is not questioning the wisdom of the order rather than challenging its legality.
Ethics Observations On The President’s “So-Called Judge” Tweet
Ugh.
In case you were lucky enough to miss it, after Judge James Robart temporarily blocked President Trump‘s Executive order halting immigration from seven Middle East nations teaming with terrorists, nationwide, the President responded on Twitter yesterday:
Tweet 1.:
When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security – big trouble!
Tweet 2.:
Interesting that certain Middle-Eastern countries agree with the ban. They know if certain people are allowed in it’s death & destruction!
Tweet 3.:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
The last one inspired expressions of alarm and horror:
Senator Schumer: “POTUS’s attack on Judge Robart shows a disdain for an ind. judiciary that doesn’t bend to his wishes & lack of respect for the Constitution.”
Bernie Sanders: “Trump has to learn the very important truth stated by Washington AG Bob Ferguson: “No one is above the law, not even the president.”
Representative Jerry Nadler: ” No “so-called.” Judge Robart is a GWB appointee who was confirmed 99-0. We are watching closely your contempt for our Judicial Branch.”
Evan McMullin—remember, the Independent who ran to be President of Utah?—wrote,
“Disagreeing with a court decision is fine, but undermining the legitimacy of a judge and the Judiciary Branch is a threat to the Republic.”
(Somehow I just don’t think that a President who has for three months watched an entire political party seek to undermine the legitimacy of a duly elected POTUS–him–with protests, riots, recounts, an Electoral College rebellion, calls for impeachment, calls for military coups, Hitler comparisons, accusations of incest with his daughter, insanity, and conspiracy theories involving Russia will take too seriously the argument that three words in a tweet is a “threat to the Republic.” I could be wrong…)
Naturally bloggers, pundits and social media users have reacted to the three words with even more intensity.
Ethics Observations: Continue reading
Supreme Court Vacancy Ethics: A Competent Choice, An Unethical Announcement, And An Irresponsible Reaction
You know, if every day is going to set off multiple political ethics controversies, I’m not going to have time to write about lobster hats.
Last night, President Trump selected Colorado federal appeals court judge Neil Gorsuch as his Supreme Court nominee.
A. The Choice
Except for those who literally are determined to freak out and condemn anything President Trump does, this was a competent, responsible choice. He would be one of the best of the available choices for any Republican President, more qualified than Obama’s snubbed selection, Merrick Garland, to fill the same vacancy, and Garland was certainly qualified. It’s ridiculous that Gorsuch is one more Harvard grad on a Court that is exclusively Harvard and Yale, but that aside, he adds some diversity of outlook by being from the middle of the country rather than the coasts. He writes clearly, unlike, say, Justice Kennedy, and is not a pure political ideologue, like Ginsberg or Alito.
Before the Democrats’ rejection of Robert Bork shattered the tradition of allowing every President the privilege of having his SCOTUS nominations approved absent real questions about their competence or honesty, a nomination like this one would have garnered bipartisan praise. Trump made a responsible, competent, choice. Really. He did.
B. The Announcement Continue reading
Ethics Alarms 
The post about the absurd Arkansas judge who saw nothing wrong with taking part in some anti-death penalty protest theater shortly after halting some scheduled executions. Can we say “objectivity”? Sure we can!
The impetus for Steve-O-in NJ’s Comment of the Day was what could be called dicta in the original post about the dubious role models for judicial conduct currently sitting on the U.S. Supreme Court.
Here is Steve-O-in-NJ’s Comment of the Day on the post, Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen: