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What Would William Howard Taft Do About Attacks on Judges?

During a week when Washington has been unable to focus on anything other than the legacy of William Howard Taft, it's been a pleasure trying to channel our most judicial president on tariffs, Facebook, Mexico, and Robert Mueller. Let me end today by asking what Taft would have made of the recent attacks on judicial independence -- embodied by Jacksonian attacks on individual federal judges and by the 51 bills pending in 16 state legislatures that would diminish the independence of state judges.

Judicial independence was the cause to which Taft was most devoted, as President and Chief Justice. Taft fought the election of 1912 as a crusade against Theodore Roosevelt's demagogic attacks on judicial independence. In February, 1912, Roosevelt alarmed Taft by attacking individual judges by name and endorsing the right of the people to overturn state court decisions as well as recalling state court judges.

Taft responded that "the charter of democracy" Roosevelt proposed "advocated a change in our judicial system" that "would be dangerous to the body politic." The recall of judges and their decisions, he said, "would necessarily destroy the keystone of our liberties by taking away judicial independence, and by exposing to the chance of one popular vote, questions of the continuance of our constitutional guarantees of life, liberty and property and the pursuit of happiness." After delivering this fervent address, Taft retreated to his private railway car and expressed anguish to a journalist, "Roosevelt was my closest friend," he declared, with his head in his hands. And then he began to weep.

The tenderhearted president did not let his personal feelings interfere with his commitment to the rule of law. He vetoed the admission of New Mexico and Arizona into the Union as states because their constitutions provided for the recall of judicial decisions. And in his galvanizing book Liberty Under Law, Taft anticipated the dangers of making fundamental constitutional changes by a single popular referendum, like Brexit in our time:

A popular constituency may be misled by vigorous misrepresentation and denunciation. The shorter the time the people have to think, the better for the demagogue. One of the great difficulties in carrying on popular government is in getting into the heads of the intelligent voters what the real facts are and what reasonable deductions should be made from them. Any reasonable suspension of popular action until calm public consideration of reliable evidence can be secured is in the interest of a wise decision. That at least was what our forefathers thought in making our Federal Government and the result has vindicated them.

Taft further promoted this Madisonian view of the need for republican deliberation rather than direct democracy during his distinguished Chief Justiceship. In an interview for the book, Judge Douglas Ginsburg told me that "Taft was the most underappreciated constitutional figure since George Mason, who refused to sign the original Constitution because it didn't have a bill of rights." And in a recent conversation at the National Constitution Center, Judge Ginsburg ventured that Taft was the second most successful Chief Justice, surpassed only by John Marshall.

This judgment is based on Taft's three great achievements on behalf of judicial independence as Chief: He persuaded Congress to establish a conference of federal appellate judges in 1922, establishing the modern administrative apparatus of the federal judiciary. He persuaded Congress to pass the judiciary act of 1925, which gave the Court control over its own docket and allowed it to focus on constitutional cases. And he helped to build the Temple of Justice, the majestic Supreme Court building across from the Capitol, symbolically establishing the Court as the head of a separate and fully equal branch of the federal government.

These are anxious times, in America and around the world, as new populist forces threaten constitutional values such as limited government, individual liberty, and the rule of law. All citizens -- libertarians, conservatives and progressives -- eager for guidance about how to resurrect the framers' vision of a republic ruled by reason rather than passion can be inspired by the legacy of our most judicial president and presidential chief justice, William Howard Taft. Thanks for helping me channel him this week and if you check out the book, please let me know what you think!

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  • Vandalia||

    This is the fundamental problem: a lack of accountability is not acceptable in the 21st century.

    Within living memory, professionals were pretty much able to do whatever they liked (professionally at the very least) without significant consequences: physicians, lawyers, dentists, priests, ministers, rabbis, etc. This is no longer true: there are plenty of the above in prison, licensing boards are more active and protective of the public, etc. etc.

    The problem is that judges do not regulate themselves. There is an example from my state's Supreme Court: they directly castigate and reverse a circuit court judge for deliberately flouting the law in a civil case and rendering a decision clearly not based on the law and on the evidence. A unanimous court decided it was not even close. However, there was no discipline. As a more national example, one can take a look at some of the controversies surrounding Federal District Court Judge Manuel Real.

    Some will say that the possibility of appellate review alleviates these concerns; since the injured party is not "made whole" that is not correct. In some cases where judges are elected they may be voted out of office; however, that is "throwing Br'er rabbit in the brier patch."

    Courts must take action against their clearly negligent colleagues and subordinates. If they don't, then the public and the politicians will solve the problem themselves, and that will be very bad. "Just Trust Us" doesn't work in the 21st century.

  • Sam Gompers||

    You want to see judicial discipline? Be a judge and choose not to perform gay weddings in your free time.

  • Sarcastr0||

    This comment is interesting sociologically.

    Clearly false, I figure it serves more as a crying out - a metaphor for how put-upon Sam feels.
    Not for himself, exactly, but on behalf of the people in all the stories he hears nowadays being unable to exclude gays from stuff.

  • LawDog||

    A federal judge would rather sodomize her daughter's corpse than cede a scintilla of the power The Tribe has wrongfully usurped. By way of example, the Galveston Daily News 'connected the dots' with respect to the scandal involving ex-Judge Samuel Kent:

    "In 2001, there was grumbling about favoritism in Kent's court on Galveston Island. The Southern District removed 85 cases from the court. The attorney on all 85 was Richard Melancon, Kent's close friend and the host of the reception for the judge's wedding.

    The judicial system looked into it and moved the cases. The judges in charge told the public the reason was a heavy caseload."

    Heber Taylor, Judicial Discipline Needs a Full Probe, Galveston Daily News, May 15, 2009.

    Eighty-five litigants. Eighty-five litigants, denied the right to have their cases heard by a fair and independent tribunal. Eighty-five separate acts of honest services mail fraud. E.g., United States v. Welch, 327 F.3d 1081 (10th Cir. 2003) (elements of honest services mail fraud). And one felony, committed by judges charged with ensuring that incidents like these do not happen. /2

  • LawDog||

    2/Misprision of felony has four elements: (1) commission of the felony alleged; (2) the accused had full knowledge of that fact; (3) the accused failed to notify authorities; and (4) the accused took an affirmative step to conceal the crime. United States v. Baez, 732 F.2d 780 (10th Cir. 1984). But being a federal judge means never having to obey the law; that's how we got Edward Nottingham, Manuel Real, and Thomas Porteous, among others. "Heavy caseload?" No. His colleagues on the Fifth Circuit obviously knew what they were doing, and that what they were doing was a crime.

    The same thing happened in the case of CJ Ed Nottingham of the District of Colorado. He was busted for having weekly trysts with Elliot Spitzer-class hookers that he couldn't afford on a judge's salary. His ElGA forms showed that he had no other source of income; ergo, he was taking bribes.

    What happened? Bush brought in a confederate of Jack Abramoff to quash the prosecution. lf a Bob Mueller had gotten to him, he would have started singing like Beverly Sills, and damn near every major player in the Denver legal community would have gone down ... and we couldn't have THAT.

  • David Nieporent||

    Eighty-five litigants. Eighty-five litigants, denied the right to have their cases heard by a fair and independent tribunal.

    Uh, if the cases were taken away from Kent and reassigned to another judge, how do you figure that they didn't have their cases heard by a fair and independent tribunal?

  • LawDog||

    Obviously, you have never spent fifteen minutes in trial court in your life. l would strongly recommend that you read the LA Times' excellent "Juice v. Justice" series. http://articles.latimes.com/20...../na-vegas8

    ln trial court, pre-trial rulings often make the difference between winning and losing, and even one corrupt ruling violates the litigants' right to a fair and independent tribunal. CA-5's sin was in not even telling them that their rights had been compromised.

    lf you're not a trial attorney, this concept might seem abstract. But there's a reason why trial judges are bribed so damn often.

  • David Nieporent||

    Obviously, you have never spent fifteen minutes in trial court in your life.

    You're mistaken; you're confusing me with someone who was declared mentally unfit to be admitted to the bar.

    But there's a reason why trial judges are bribed so damn often.

    There's a reason why people who think this aren't lawyers.

  • LawDog||

    DN: "There's a reason why people who think this aren't lawyers."

    Really??? How about this guy:

    "It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, "I don't care if my opponent knows the law, as long as I know the judge." In the old days, it was financial corruption -- cash changed hands. Then it became the "favor bank," in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere."

    Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000, p. 116.

    Uh, last time l looked, David, Alan Dershowitz WAS a lawyer ... of some repute.

    Obviously, you didn't read the LA Times piece. And l'll bet you think Ed Nottingham wasn't taking bribes to pay for his hookers. Or Judge Porteous was given gifts by lawyers to fund his gambling habit out of the goodness of their hearts. lt's rarely as crass as Operation Greylord, but it happens a lot more often than people think. Been happening since Lord Bacon took bribes from both sides in order to expedite cases.

  • LawDog||

    David, l note further for the record that you refused to acknowledge the irreparable harm a corrupt pre-trial ruling can inflict on a case. lf you had read the LA Times piece, you would have been up to speed....

    ...but if ignorance is bliss, you are definitely multi-orgasmic.

    An umpire is supposed to call balls and strikes within the rules of baseball. But when a pitch thrown over the batter's head is called a strike, you know something is wrong. (Well, maybe YOU don't....)

    The Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased. See, e.g., In re Murchison, 349 U.S. 133, 136 (1955) (stating that the Due Process Clause "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, `justice must satisfy the appearance of justice.'").

    lf that right has been violated, it is not a trivial matter. At the very least, the Fifth Circuit had an obligation to inform the litigants and the public of the breach. The crime had been committed, 18 U.S.C. § 242, and the judges of CA-5 were accessories-after-the-fact.

  • LawDog||

    Just for grins, David, l looked you up. FLSA law? SRSLY? You are a low-rent mechanic in a legal Jiffy Lube. ConLaw is way outside your bailiwick, and it shows.

  • Sarcastr0||

    The key is to make it personal.

  • LawDog||

    Merely returning serve.

  • Bob from Ohio||

    "Taft fought the election of 1912 as a crusade against Theodore Roosevelt's demagogic attacks on judicial independence."

    He won 8 electoral votes! As Vermont goes so does Utah.

    Taft sure had his finger on the pulse of the nation.

    TR is on Mount Rushmore, Taft is not.

  • Rev. Arthur L. Kirkland||

    Speaking of Mt. Rushmore, a poll:

    Should Obama be placed

    ___ to the left of Washington

    ___ to the right of Lincoln

    ___ I hope getting Reagan up there is part of the deal

    ___ no way -- it was bad enough we let a black guy be president #MAGA!

  • Eidde||

    Next to Sid Vicious.

  • PersonFromPorlock||

    So, Man on a White Horse = bad, Judge on a White Horse = good.

  • Rev. Arthur L. Kirkland||

    Part of the problem with judges is that those who choose judges -- legislators, presidents, and voters -- do such a lousy job of it.

    Most strong lawyers have no interest in becoming a judge. Most people who become a judge -- often by following a demeaning course of handing out bingo daubers to party committee members, doing favors for elected and party officials, or -- tend to be those who (1) seek to arrange respect they could not earn without a robe; (2) are more ambition than substance; (3) pursue financial security they could not earn in another manner; and/or (4) are driven by ideological purposes and chosen for ideological predictability and youth far more than for merit.

    The federal courts tend to have fewer dullards and more extremists. I believe we would be better off with fewer former prosecutors at all levels of the judiciary.

    What do lawyers call former classmates who earned mostly Cs but had family or political connections?

    'Your honor.'

  • captcrisis||

    So true!

    Might be worse than that, actually. I have a picture of law profs getting together and looking at the 3L class photos, and playing a game of "who should NEVER be a judge". And knowing that in fact these are the kids most likely.

  • LawDog||

    Actual case in point: Marcia Smith Krieger of the District of Colorado--who was a wretched student at CU Law, but had a federal judge for a father.

  • MightyMouse||

    Thanks for the enlightening discussions about this overlooked figure. Besides the false fables told by public educators that he was stuck in a bathtub and had the most children of any president, I had no idea how principled and good he was as a Justice.

  • MightyMouse||

    In other words, he was made to look like the poster boy of white male privilege.

  • LawDog||

    And fewer still don't understand the lasting damage he did to the rule of law.

  • LawDog||

    The "don't" s/b removed.

  • JonFrum||

    "Taft anticipated the dangers of making fundamental constitutional changes by a single popular referendum, like Brexit in our time ..."

    This is a lie. Brexit, so called, did not make any change to the British constitution - or any British law at all. The British held a referendum to decide whether they should stay within the European Union. The people spoke. Now, the government needs to act on the people's will. And when they do, THEN there will be a constitutional change.

    Some people approve of democracy when their side wins.

  • shortviking||

    I thoroughly enjoyed these Taft articles.

  • M.L.||

    Thank you for the very good posts on Taft.

    "the dangers of making fundamental constitutional changes by a single popular referendum, like Brexit"

    Brexit seems like an odd choice of example. Wasn't that more of a change to a treaty/trade agreement than it was a "fundmental constitutional" change? California's adventures in Constitutional amendments by referendum might be a better example.

    Coincidentally, Lloyd Blakfein is in the news today for admitting he was wrong about Brexit.

  • Old Smokin' Egg||

    I think there's a typo in the penultimate sentence of the third paragraph: should it be "Taft retreated to his private railway car"? When I first hit the sentence, it read as though Roosevelt broke down and cried because of the mean things that Taft said about him. Could we get that fixed, please?

  • Stephen Lathrop||

    Alas, Taft's remarks about the importance of judicial independence deserve deference. His points are well-made, and unwise to contradict. But they fail to anticipate today's politically weaponized judiciary. There is no sign that will be self-correcting.

    The more-obvious correctives might come from political counter-pressure. That could amount to court packing, unprecedentedly-broad use of the impeachment power after a wave election, or—less traumatic, but still shocking—invoking long-disused Article 1 powers giving Congress oversight of the judiciary. Any such routes would be disruptive, dangerous, and, worse, unlikely to escape political taint themselves.

    Wisdom would counsel that political branch members, and also the non-government political apparatus backing them—especially the think tank apparatus—back off from trying to systematically politicize the courts. How likely does that seem? Right now, the politically-founded advocacy of the Federalist Society acts as a major menace to the fabric of American constitutionalism—and gets hosannas for it on this legally-minded blog. The nation is in a pickle on its judicial management policy.

  • Sam Gompers||

    Judges who are creating protected classes,and who are styming lawful orders by Trump should be attacked.

  • Sarcastr0||

    Well, what are you waiting for, Sam?

  • LawDog||

    He didn't suggest lynchings ... though amusingly, an MSNBC contributor has suggested that they do. Paul Butler, By Any Means Necessary: Using Violence and Subversion to Change Unjust Law, 50 U.C.L.A. L. Rev. 721 (2003) (invoking international law principle of "just war" to justify targeted assassinations of American officials, including federal judges).

    l pull this one out when partisans on the Left get too sanctimonious.

  • David Nieporent||

    Well, he didn't say that -- but I hear that "pulling this one out" is a good way to get oneself declared a vexatious litigant and barred from filing further suits.

  • LawDog||

    Doubt that you have read it.

    Concurrences by St. Thomas Aquinas, St. Pope John Paul ll, and Cicero.

  • Eric Rasmusen||

    The interesting question is:

    What would Taft do about judges who decide cases politically instead of according to the rule of law?

    He loathed that kind of judge. "Former President William Howard Taft, who had hoped
    against hope that Wilson would transcend partisan politics and appoint him to the Court,
    was livid when he heard the news of Brandeis's nomination. "It is," he wrote, "one of the
    deepest wounds that I have had as an American and as a lover of the Constitution and a
    believer in progressive conservatism, that such as man as Brandeis could be put on the
    Court, as I believe he is likely to be. He is a muckraker, an emotionalist for his own
    purposes, a socialist, prompted by jealously, a hypocrite . . . who is utterly unscrupulous .
    . . a man of infinite cunning . . . of great tenacity of purpose, and, in my judgment, of
    much power for evil."6

    What would Taft have proposed if a majority of the Supreme Court was composed of judges like Brandeis?

  • LawDog||

    lf he were alive today and l had the power to, l would feed him--while he was still alive--to a pack of rats. There is no man who did more lasting damage to the rule of law than Taft.

    l speak, of course, of The Judges' Bill, 43 Stat. 936 (Feb. 13, 1925). Fittingly, it was enacted on Friday the 13th, and it has resulted in a ninety-year run of bad luck for litigants victimized by judicial bias, sloth, and caprice. By depriving deserving citizens of the right of certiorari review, he gave judges the power to ration justice ... and if you give anyone absolute and untrammeled power, it WlLL be abused. As Judge Keeton (of Prosser and Keeton fame) wrote, "The law abhors power without accountability. Unpoliced power invites abuse and corruption." IRS v. Blais, 612 F. Supp. 700, 704 (D. Mass. 1985).

    lf you count that as one of Taft's "accomplishments," you are per se unfit to practice law.

    The numbers don't lie. Back in the days of Learned Hand, everyone was entitled to bona fide appellate review--where judges actually read briefs, conducted oral argument, and even wrote their own opinions--and the reversal rate was close to 30%. Today, in the Fourth Circuit, it is down to a breathtaking 4% (most Circuits range from 5-8%). Assuming that trial court judges were of equal competence, that means that about 80% of TC errors are left unredressed. Real people. Real lives, unjustly destroyed.

  • LawDog||

    As a direct and predictable result of the abolition of the right to cert, our federal circuit courts have become de facto certiorari courts, William M. Reynolds & William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96), where reviews of appeals filed by disfavored litigants -- and especially, pro se litigants -- generally take less than ten minutes. See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours).

    Why is the failure rate so high? ln his paean to Judge Stephen Reinhardr, Michael tells us: "We spent countless hours with the briefs and our own legal research. We went through at least a dozen drafts before Reinhardt was satisfied that he fully understood the issues and that the panel was resolving them correctly." Except, of course, in the vast majority of cases, where he spent ten minutes or less deciding it, and rarely even bothered to read the opinion he delivered. If Judge Reinhardt did the bulk of his work to "the highest possible standard"--or at least, to a level that rose above "gross and willful negligence"--it is a veritable certainty that the reversal rate would have been much higher.

  • David Nieporent||

    Uh, not to point out the obvious, but if there were mandatory appellate jurisdiction for the Supreme Court, the cases wouldn't get less than ten minutes at that level; they'd get less than one minute.

  • LawDog||

    You'd have to change the composition of the Court. Why can't we have 99 Justices, with en banc panels of nine for cases that matter? Think CA-9.

    Who ensures that lower courts do their jobs? NOBODY!!! Do you honestly think the Framers enacted Art lll with that flaw baked in? Of course not! Per the literal author:

    "To express myself without a metaphor—in every judicial department, well arranged and well organized, there should be a regular, progressive gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

    An ar[r]angement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and it supports every inferior court within the limits of its just jurisdiction.

    If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible."

    2 Works of James Wilson 149-50.

    The Framers thought of it, even if you haven't. /2

  • LawDog||

    2/Constitutionally speaking, Congress could take 100% of the Court's appellate duties away, vesting it instead in a patchwork quilt of courts (e.g., Exchequer, Admiralty) in a manner similar to Britain's. But what they can't do is divest it of the duty of superintendence, as Justice Wilson makes clear.

  • David Nieporent||

    You'd have to change the composition of the Court. Why can't we have 99 Justices, with en banc panels of nine for cases that matter? Think CA-9.

    Uh, if you did that, it wouldn't solve the problem you perceive of inconsistent decisions.

  • LawDog||

    The Court that l envision would do a far better job than the abomination we have today.

    Real case. P sues state supreme court justices, under a theory of law (negligent supervision) that passed muster in another federal circuit (ergo, it is not frivolous). ln a pendent action (the federal judge was taking bribes to pay for hookers), the state justices sat in judgment of the case, despite specific statute and precedent to the contrary. (lf you want federal case law on this, you can even go back to Calder v. Bull, but Tumey v. Ohio and Murchison should suffice.) Why does this violate
    P's rights?

    "The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides."

    People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915) (internal citation omitted).

    A clearer case for certiorari review can scarcely be imagined. /2

  • LawDog||

    2/Under our current system, the Justices are too busy giving speeches--it's not like they have too much to do, given that they issue 70 opns/yr, and far more speeches than that--to attend to the constitutional duty of error-correction. And while the law in CA-9 does tend to drift, the variance pales in comparison to the breathtaking wrongness of that outcome.

    There is no conceivable justification for preserving the status quo ante. The Court may spend thousands of man-hours crafting a single opinion, but of what value is it if no one can safely rely on binding precedent such as Tumey and Murchison?

  • David Nieporent||

    Real case: kook spends close to twenty years proving that state bar was correct in assessing that he was too kooky to be admitted to practice. Can't figure out that when everyone is going the opposite direction from him on a one-way street, it's not all the other drivers that are mistaken.

  • LawDog||

    So, only those people who have claims you personally approve of are entitled to the due process right to have their cases heard by a fair and independent tribunal?

    Gerry Spence responds:

    "ln this country we embrace the myth that we are still a democracy when we know that we are not a democracy, that we are not free, that the government does not serve us but subjugates us. Although we give lip service to the notion of freedom, we know the government is no longer the servant of the people but, at last, has become the people's master. We have stood by like timid sheep while the wolf killed -- first the weak, then the strays, then those on the outer edges of the flock, until at last the entire flock belonged to the wolf. We did not care about the weak or about the strays. They were not a part of the flock. We did not care about those on the outer edges. They had chosen to be there. But as the wolf worked its way toward the center of the flock we discovered that we were now on the outer edges. Now we must look the wolf squarely in the eye. That we did not do so when the first of us was ripped and torn and eaten was the first wrong. It was our wrong. /2

  • LawDog||

    2/That none of us have felt responsible for having lost our freedom has been a part of an insidious progression. In the beginning the attention of the flock was directed not to the marauding wolf but to our own deviant members within the flock. We rejoiced when the wolf destroyed them for they were our enemies. We were told that the weak lay under the rocks while we faced the blizzards to rustle our food, and we did not care when the wolf took them. We argued that they deserved it. When one of our flock faced the wolf alone it was always eaten. Each of us was afraid of the wolf, but as a flock we were not afraid. Indeed, the wolf cleansed the herd by destroying the weak and dismembering the aberrant element within. As time went by, strangely the herd felt more secure under the rule of the wolf. It believed that by belonging to this wolf it would remain safe from all the other wolves. But we were eaten just the same. ...

    To the same extent that Randy Weaver cannot find justice in this country we, too, will be deprived of justice. At last, my defense of Randy Weaver is a defense for every Jew and every Gentile, for every black and every gay who loves freedom and deplores tyranny."

    David, you may or may not be mentally fit to be an attorney (fwiw, Abe Lincoln suffered from clinical depression); l know of no objective test or standard. But when it comes moral fitness, you fail with flying colors.

  • David Nieporent||

    So, only those people who have claims you personally approve of are entitled to the due process right to have their cases heard by a fair and independent tribunal?

    Oh, everyone has that right. But nobody is entitled to be treated seriously when he claims he wasn't given due process. And nobody is entitled to keep suing judges who rule against him so that he can tactically argue that they need to be recused because they aren't impartial.

  • LawDog||

    Oh, everyone has that right. But nobody is entitled to be treated seriously when he claims he wasn't given due process.

    One of the defendants in the case put it this way:

    "It is fundamental to the vitality of our judicial system that litigants believe in the fairness of the process. An unfavorable decision perceived to be the result of an impartial consideration may be bearable, but an unfavorable decision tainted by even the appearance of partiality cannot be condoned." …

    I do not stand alone in my belief. The Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased. Consistent with this principle, a Colorado statute, procedural rules, and the Code of Judicial Conduct all provide guidelines to ensure that due process requirements are satisfied and that parties to civil and criminal cases are the beneficiaries of unassailably fair and impartial judges.

    People v. Julien, 47 P.3d 1194, 1201-02 (Colo. 2002) (Bender, J., dissenting).

    And nobody is entitled to keep suing judges who rule against him so that he can tactically argue that they need to be recused because they aren't impartial.

    lt was a pendent action. lf the federal court had done its job, it never would have gotten to state court. As such, you can't credibly argue--the court didn't!--that that rule applies./2

  • LawDog||

    2/But here's the important part--the one that ties back to Taft. Federal judges are illegally rationing access to the courts. According to retired District Judge Nancy Gertner, judges are quite literally trained on "how you get rid of [pro se civil rights] cases." Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf of the District of Nebraska), Oct. 22, 2011.

    Our federal circuit courts have become de facto certiorari courts, William M. Reynolds & William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96), wherein the review of appeals filed by disfavored litigants generally take less than ten minutes. See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours). The result is a form of constitutional triage, where the "rule of law" is supplanted by the arbitrary and capricious rule of men.

    ln turn, this is only made possible by Taft's signature abomination: Discretionary cert.

    lt seems that you have a personal vendetta against the plaintiff in that case. l'm focusing on the big picture.

  • sscrane||

    I just want to say thank you for enlightening me. I was previously unaware of the wisdom of William Howard Taft, but now I am sure I will never forget it.

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