Judge Lynn Adelman (ED.Wi) on CJ Roberts's Confirmation Hearing: "Masterpiece of Disingenuousness"

"Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides."

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I had never heard of U.S. District Court Judge Lynn Adelman. He was appointed to the Eastern District of Wisconsin in 1997. According to the ever-reliable Wikipedia, Judge Adelman found that Wisconsin's Voter ID law violated the 14th Amendment, and was considered for a Seventh Circuit vacancy.

Alas, now I am aware of Judge Adelman. He posted to SSRN a forthcoming article, titled "The Roberts Court's Assault on Democracy." It will be published in the Harvard Law & Policy Review, the official law review of the American Constitution Society.

Here is the introduction:

By now, it is a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball "umpire who [merely] calls the balls and strikes" was a masterpiece of disingenuousness. Roberts' misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court's hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

It has become en vogue for federal judges to criticize President Trump in such terms. But I don't recall seeing a lower-court judge charge the Chief Justice with being "disingenuous" or "misleading." Indeed, Judge Adelman has come close to accusing Roberts of committing perjury–a crime, and an impeachable offense.

Judge Adelman also offers partisan criticisms of President Trump:

The Republican Party has been particularly afflicted by the concentration of wealth at the top.25 The party's policy agenda is now determined by a small and unrepresentative number of individuals and corporations. President Trump's behavior after being elected illustrates this. Although he ran as a populist and promised to promote policies that benefited ordinary people, upon taking office Trump almost entirely reversed course. He appointed mostly wealthy far-right Republicans and their supporters to his cabinet and to key positions in his administration and supported health care legislation drafted by conservative Republican legislators that, had it passed, would have been extremely harmful to millions of low and moderate income Americans.

Trump also supported a tax bill that provided big benefits to the country's largest corporations and wealthiest individuals and virtually nothing to the majority of American taxpayers. Trump also promised to offer a major infrastructure program to provide well-paying jobs to American workers and modernize the country's transportation system. However, he has not followed through on this promise largely because it would require a considerable increase in domestic spending which influential Republicans oppose.

Because Congressional Republicans depend on a relatively small number of wealthy donors to stay in power, their major public policy goal is to do whatever makes such donors happy. And Republican donors are mostly interested in tax cuts, fewer regulations and less spending on anything benefiting ordinary Americans.31 And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump's temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge.

I've skimmed the rest of the article. There is nothing new or original here. Judge Adelman merely repeats the same tropes we have heard for a decade. Citizens United. Shelby County. Conservative Legal Movement. And so on. The dagger note states that Judge Adelman "bears full responsibility for any errors." I agree.

I'm reminded of Judge Posner's apt criticism of Justice Breyer's book: "A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all." Ditto for District Court judges.

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  1. It sounds like he is violating several cannons of ethics here. I’d expect some discipline will be applied.

    If a conservative judge wrote something similar about Sotomayor and Obama I would expect the same. There are plenty of people around to write op-eds or blog posts dumping on justices and presidents, we don’t really need the judiciary in on the act.

    1. Like Josh, you seem to believe that hand-waving something-something about “norm” substitutes for argument.

      1. Not handwaving, i referenced the Code of Conduct for United States Judges.

        See:

        Canon 4: A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

        Canon 5: A Judge Should Refrain from Political Activity

    2. I’d hope some discipline would be brought. This type of action is unethical in a sitting Federal judge.

    3. If a conservative judge wrote something similar about Sotomayor and Obama I would expect the same.

      Really? From Blackman?

      1. Not from Blackman from the Judicial Conference which is part of The United States Federal Courts. They are the ones who promulgate the Code of Conduct for United States Judges. And while they can’t remove a judge from office they can admonish them, and i think even suspend them.

        1. Yeah, about that: The last time we heard about the Judicial Conference in these pages was when they were proposing to declare membership in the Federalist society, or (Presumably.) attendance at any of their functions, an ethics violation.

          So I hope your expectation is only normative.

          1. Well, obviously that’s a little overboard especially since the Federalist Society doesn’t officially endorse or oppose legislation, political candidates, or even judicial nominees.

            But it does illustrate that if the Federalist society is considered borderline political how far past that standard Adelman’s screed is.

            1. Yes, but it also illustrates that the Judicial Conference weighs what your politics are in deciding whether you’re over the line. As was remarked in the linked Volokh post, the AMA is worse by any measure on the points the Judicial Conference was complaining about, but from a left-wing perspective instead.

              The Judicial Conference is clearly taking a “no enemies to the left” position, in fact, even if they don’t admit it.

  2. Is Posner really one to be calling out judges for publishing legal theory or giving their unsolicited opinions?

    1. Ah, you see, Posner didn’t refer to “judges” but rather “a Supreme Court Justice.”

    2. His unsolicited pornography is top notch, though.

      1. You’re thinking of Kozinski.

    3. Maybe he’s trash-talking other judicial authors/competitors?

      Just askin’ questions.

  3. Impeach and remove Judge Adelman.

    1. Nah. Too much work. Just have the Supreme Court automatically grant cert to every consequential case in which Judge Adelman writes a majority opinion that stretches the boundaries of the law in favor of liberal policies.

      1. Too much work, and below their pay grade.

    2. Nah, the Liberals would just use it as precedence to impeach every Conservative judge they could find.

      Judicial reprimands are called for through the court complaint system. And perhaps his caseload should be sharply reduced to only mundane items.

  4. Posner plagiarizes Samuel Johnson, and Blackman doesn’t notice.

    1. I think it more likely Blackman knew the reference was a reference and assumed we would to, and didn’t feel a need to Let Us Know He Knew Because He Is So Clever?

    2. Sometimes, Br’er Rabbit, the quote is so well know that it needs not be directly referenced.

  5. Come on, Judge, save your anger for your decisions, when you can *really* stick it to that orange usurper!

  6. By now, it is a truism that

    Anyone who starts an article like that you know is about to try to sell you a load of manure. One, he doesn’t know what the word “trusim” means. Two, the statements that follow are at least debatable, and arguably are false.

    So now if a legal dispute comes up that concerns the Trump Administration, or First Amendment rights of the wealthy, will we see a recusal?

  7. Threat to Democracy: When judges overturn our laws, as opposed to theirs.

    1. Eh. The case is arguable if the complaint is about decisions involving voting power. If the decisions keep people from voting or from having their vote affect outcomes in any meaningful way, then it’s a threat to the concept of majority rule.

      1. Democracy relies on restricting voting as much as enabling it. You only get one vote, your own, which you use in a particular place.

        You don’t go for a road trip on election day, and vote wherever you feel like. You don’t vote 5 times in an election if you’re particularly enthusiastic. You don’t get to cast somebody else’s vote for them.

        And, you don’t get to vote if you’re a child, or not a citizen. Or, depending on state law, a felon.

        The whole system can’t function without keeping some people from voting occasionally.

        1. Perhaps, but the issue is where one person doesn’t get to do their one vote at all. Closing polling places, kicking people off rolls for having similar sounding names, making it difficult for college students to participate at all, saying some forms of ID are good but others are not, etc. Furthermore, the issue is also about making the vote meaningful. Allowing a situation like Wisconsin to exist where 54% of voters vote for candidates of one party in the assembly, but the other party ends up with 63% of the seats is not democratic at all. Enabling that to continue is a threat to the assembly’s democratic underpinnings.

          1. I just have one bone to pick with the idea that it is wrongheaded to say that some IDs are good enough to register to vote, while others aren’t. It is 100% true that some IDs are good and some are not. I see this trope all the time, that someone went to register with a military ID and that it wasn’t good enough. A military ID alone is not good enough, sorry!

            To register someone to vote, the standards are very low when it comes to ID, all you need is a credit card and a utility bill in your name. But a military ID, or any picture ID that doesn’t have your *legal address* just won’t work, because County Clerks have to know what type of ballot you need. There are tons of wards, and library districts, etc. etc. that are down ballot races where your address is essential.

            1. That’s why ideally there would just be a uniform voter ID provided at no cost to the applicant so there aren’t fights over picking and choosing which things count and there aren’t issues with poorer applicants being barred.

              1. Yea, and we have that. Anyone can get a photo ID from their state’s DMV. The standards of those ID cards are now set by the Feds.

            2. “To register someone to vote, the standards are very low when it comes to ID, all you need is a credit card and a utility bill in your name.”

              In Wisconsin, the standard is even lower than that. Fill out an affidavit where you swear under penalty of perjury that you are who you say you are and are eligible to vote in the precinct where you are registering. This can be done on election day at your designated polling place.

              1. Wow! They don’t hold the ballot as not counted and the person has X number of days to come down an provide adequate ID? In my state, if you don’t have any ID, you cast a provisional ballot, but if they make their way to the County Clerk’s office in at least 10 days (I believe) and give the right paperwork, then they throw their ballot in the hopper with the rest of them. By then, the race has already been decided, but your vote still counts at least.

                1. “They don’t hold the ballot as not counted and the person has X number of days to come down an provide adequate ID? ”

                  Nope. Wisconsin has had at the polls registration forever. Decades before the Feds passed the motor voter monstrosity.

                  They used to require ID similar to what you described in your earlier comment, but the last time I moved, it was fill out this form which was a fill in the blanks affidavit and sign on the dotted line and your done.

          2. Allowing a situation like Wisconsin to exist where 54% of voters vote for candidates of one party in the assembly, but the other party ends up with 63% of the seats is not democratic at all.

            That is inherent in having a district system of representation, as opposed to a proportional system. Under Reynolds v. Sims (1964), districts in a state have to be roughly the same population. But they don’t have to be proportionate in terms of voter preference or party registration.

            For that matter, the Electoral College has the same issue. There is no advantage to winning a state by 90% as opposed to 51%. That is how you get one candidate winning the popular vote but the other winning the Electroral College vote.

            The notion that this is “undemocratic” is absurd, since the district system is contemplated by the Constitution and has been the practice for the last 200 years

            1. Just because its been in practice for 200 years doesn’t make it more or less democratic. In fact, its longevity is an argument for it being less so because the people who designed it 200 years ago didn’t even have universal male suffrage in mind!

              And of course it’s undemocratic because it completely cuts against majority preference in Wisconsin for the composition of the Assembly. A majority of Wisconsin voters wanted Democrats to set state-wide policy in the Assembly. The result of their voting for that was that Republicans practically have a super majority in the Assembly setting policy. Therefore state-wide policy in the Wisconsin Assembly is being set based on the minority preference in the state. This may be to your liking, but its anti-majoritarian and undemocratic result for that particular institution which purports to be democratic. If you want minority rule across the board, just be honest about it.

              The same can be said of the Electoral College. But most of the justifications for it are that it’s actually good that it is an antidemocratic institution. Again, if you want that in every institution, just say so. Don’t pretend that a system that has a minority rule preference in the institutions that purport to be democratic, is actually democratic.

              1. “but its anti-majoritarian and undemocratic result for that particular institution which purports to be democratic”

                That you don’t like the results of one man, one vote, doesn’t make those results anti-majoritarian or undemocratic. Proportional representation is not now, and has never been, a requirement of a democratic institution.

                “A majority of Wisconsin voters wanted Democrats to set state-wide policy in the Assembly.”

                That wasn’t on the ballot for any of them, and you have no way of knowing how the results would have come out if it had been. The fact that Democrats won 27 unopposed races (and that doesn’t even count the races where the opposition was a third party), while the Republicans only won 6 unopposed races might give you some pause about relying on the straight numbers.

                1. They were unopposed because the Republicans designed them to be that way. They wouldn’t have to contest tightly drawn urban districts. And I don’t see how you can think that a society that votes for one party but consistently gets another is somehow democratic. It’s clearly anti-majoritarian.

                  Keep in mind it’s not just the result, it’s also the proportion: 63% of seats shouldn’t go to Republicans if 54% of people vote for Democrats. Even if there is no exact proportionality requirement, the make up of the legislature should be somewhat reflective of the voting preferences of the electorate.

                  If you believe that proportionality has nothing to do with democratic institutions, would you consider the pre-Reform Act House of Commons Burrough districts democratic? The two voters in Old Sarum got one vote each for Two MPs just like the 3000 voters in Liverpool did.

                  1. “They were unopposed because the Republicans designed them to be that way. They wouldn’t have to contest tightly drawn urban districts.”

                    Regardless of whether or not this is true, it doesn’t rescue your attempt to rely on the gross numbers from the race.

                    “And I don’t see how you can think that a society that votes for one party but consistently gets another is somehow democratic. It’s clearly anti-majoritarian.”

                    A society doesn’t vote. Individuals vote. Proportional representation is not, and never has been, a requirement of democracy.

                    “Keep in mind it’s not just the result, it’s also the proportion: 63% of seats shouldn’t go to Republicans if 54% of people vote for Democrats.”

                    Why not? The Republicans won 63% of the seats, while the Democrat’s numbers were inflated by the number of unopposed elections they won. Had Republicans ran candidates in those election, the Democratic vote share would have been different. How can the propriety of a voting system depend on whether one of the parties bothers to run a candidate?

                    “Even if there is no exact proportionality requirement, the make up of the legislature should be somewhat reflective of the voting preferences of the electorate.”

                    It does. The electorate votes by districts for their own representative, with the winner in each district being the candidate who receives the most votes. Again, you are determining the voting preferences of the electorate based on an election where Democrats won 21 more unopposed races than Republicans. The total votes are meaningless.

                    And I believe that Republicans won the popular vote in the Wisconsin Senate, while a Democrat won the governorship, something else your simplistic view can’t account for.

                    “If you believe that proportionality has nothing to do with democratic institutions, would you consider the pre-Reform Act House of Commons Burrough districts democratic? The two voters in Old Sarum got one vote each for Two MPs just like the 3000 voters in Liverpool did.”

                    As Bored Lawyer has already explained, that’s not proportionality, that’s one man one vote.

                    1. So were rotten burroughs democratic?

                      Say you could draw districts so that 90% of people voted for one party but the other party got 70% of the seats? Would you still say that’s democratic?

                    2. “So were rotten burroughs democratic?”

                      As Bored Lawyer has already explained, that’s not proportionality, that’s one man one vote. That’s irrelevant to the present conversation.

                      “Say you could draw districts so that 90% of people voted for one party but the other party got 70% of the seats? Would you still say that’s democratic?”

                      Show me how it’s done and I’ll tell you.

                      You are complaining about the results of the 2018 election in Wisconsin. I’m guessing the districts were drawn in 2010ish. How were they supposed to know that in 2018 Democrats would win 21 more unopposed elections than Republicans, resulting in 54% of the popular vote, and draw their districts to achieve your desired balance? And you were so certain that the Democrats winning 27 unopposed races to the Republicans 6 in 2018 was the result of a Republican plot. Yet in 2014 Republicans won 30 unopposed races to the Democrats 23. How do you explain that?

                      Assume a legislature, any legislature, is drawing its districts in good faith. Where are they supposed to get their target numbers from?

              2. ” A majority of Wisconsin voters wanted Democrats to set state-wide policy in the Assembly.”
                Sigh…
                As jph notes, this isn’t entirely accurate. Because people vote for an individual (not a party) this leads to many state level districts in WI which are “uncontested” and essentially don’t give any choice besides one person. Thus your “53%” number is pretty inaccurate. It basically doesn’t account for a large number of people who can’t vote for their choice. It makes sense in the context of district by district elections. But using the “total” “53% of the vote” as a number is pretty misleading.

                A better representation would probably be the governor’s vote (where there is at least a second person on the ballot in every district). It’s not perfect, but it’s far better than using the 53% number. There, in 2018, the Democrats managed a narrow plurality of the vote, not a majority. The truth is, the statewide preference in the assembly was going to be set by a minority preference regardless of who won, Republicans or Democrats.

                1. But that doesn’t address the massive proportionality mismatch. It’s one thing if it’s a bare majority either way, but a democratic system shouldn’t result in 63% of seats going to one party when the vote overall (and for governor) is much closer. The state as a whole clearly did not prefer that result. It also doesn’t really address the political science that says that people for the most part are partisans in voting behavior before any other candidate trait.

                  1. That’s actually a pretty minor mismatch. Like I said, a better number is using the 48% of the vote the GOP got in the Governor’s vote, to end up with 63% of the seats. That’s a “15%” mismatch.

                    There are mismatches like that all over. And many are far worse. For example, in the Massachusetts Congressional Delegation. There, Trump got 32.8% of the vote. But, how many GOP Congressmen are there from Massachusetts? Zero. That’s a 32.8% mismatch. California has a massive “mismatch” as well. As do many other areas.

                    But we don’t have the state as a whole. We have districts. And that’s what’s voted on.

              3. And of course it’s undemocratic because it completely cuts against majority preference in Wisconsin for the composition of the Assembly. A majority of Wisconsin voters wanted Democrats to set state-wide policy in the Assembly.Democracies are terrible government structures. That’s why the founders formed a representative Republic. A major goal was to avoid the tyranny of the majority. Because history is littered with those majority failures.

                1. Do you think the tyranny of the minority is a good idea?

                  The “tyranny of the majority” is a bad idea not because of the “majority” part but because of the “tyranny” part. So to avoid that you limit the things government can do so as to protect individual and minority rights. Within that structure you do in fact let majorities make policy.

                  What makes no sense is to create a system structurally designed to let a minority make policy.

              4. You talk about “democracy”, but I doubt you want a completely majoritarian system of government. It’s just that you don’t want anti-majoritarian protections inconveniencing the policy agendas that you personally favor. You want majority rule when it gives you the results you want; and civil rights, procedural protections, etc., when they benefit the policies you favor.

            2. None of that makes it a good system.

              1. Define “good” when it comes to democratic representation.

                I think you will find that while there are shared values, there is not shared definition of “good”, only acceptable trade-offs for various problems inherent with mob rule *ahem* I mean democracy.

                1. Define “good” when it comes to democratic representation.

                  Not going to, because my main point here is that the fact that it has been in use for over 200 years, or is in the Constitution, doesn’t automatically make it good.

                  Unsurprisingly, I do have opinions, however.

                  District representation has some advantages, some disadvantages. I would prefer a limited PR system for legislatures, including the House, myself, with the smaller states electing the delegation at large, while bigger states are divided into regions that each choose five or so representatives.

                  I think the Senate and EC are bad jokes, and the arguments in their favor are bogus.

                  1. Ah Proportional Representation…

                    Whatever could go wrong with that?…Something… Something…. 1920s…. Weinmar……. ahh, I forget, whatever.

                    1. Old school monarchists and conservatives who really ought to have known better gave power to an upstart antisemitic nationalist party?

                    2. Can’t make a general rule though, it worked with Franco in Spain.

                    3. They didn’t “give” the power… A minor little party gained traction through proportional representation, and used that little power to gain more, often by trading it’s little block of votes for more power.

                      It’s one of the greatest flaws in proportional representation…the disproportionate power it can give to fringe, extremist groups.

                    4. Yes. That’s a flaw. Nothing is perfect. My idea of dividing the large states into regions, so that no more than five or so representatives are elected as a group, is to limit fringe parties while giving third parties with significant support a chance to win some seats.

                2. A good system recognizes that political parties are a heuristic for values and that the person of the candidate isn’t as important. This is particularly true in a legislative election where the goal is not just to have a particular representative, but also the hope that the representative is part of a Like minded group who can Work together to achieve similar objectives.

                  Therefore a political system that allows a such a gross mismatch between general party voting preference and seats won, is a bad system.

                  1. Seems odd to use “general party voting preference” as a guide in a system where people literally have no choice in some districts to vote for their preferred choice?

                    1. That wouldn’t happen as much if districts were designed to be competitive.

                    2. Competitive between who?

                      Personally, I think districts should be relatively compact and designed for keeping communities together. A district that snakes into the center of a city, then includes a big chunk of rural farmland is two distinct different communities, with different interests, that should probably be represented by two different people.

            3. The notion that this is “undemocratic” is absurd, since the district system is contemplated by the Constitution and has been the practice for the last 200 years

              “It’s always been done this way” has never been a good argument.

              Defend it on it’s merits if you feel the need, but clinging to “tradition” is just another way of saying “I have no argument”.

              1. Oh, it’s a very good argument indeed that “we’ve done it this way for X number of years.” Even a liberal must acknowledge that the system as it is now is pretty decent overall, both historically speaking and compared to the rest of the world in contemporaneous times. Sure, you want to make it better, but we live like kings historically and the US is a wealthy and successful country by most measures.

                I bet that EscherEnigma has never heard of Chesterton’s Fence, though in your personal life, you actually behave like a conservative. Let’s say you start a new job taking over for someone else. The work got done, even if a times inefficiently. Do you radically restructure without learning why a certain policy/procedure is in place? I bet you do it the way the last guy did, and only change things when underlying conditions change or when you tweak them to make a small improvement.

                In sum, government and society is the same.

                1. Do you radically restructure without learning why a certain policy/procedure is in place?

                  Do you never ask?

                  Because I didn’t advocate for any change.

                  I just pointed out that “tradition” is a shitty, intellectually lazy, sophistic circular-thinking excuse.

                  If there are merits, you can find them and explain them. You only have to fall back on “tradition”if there aren’t merits.

                  1. “Tradition” generally means “It’s worked until now, it’s tested, and it hasn’t failed utterly”.

                    Having something that is firmly tested is a good thing, and evidence to keep using it.

                    1. “Work” is doing a lot of heavily lifting there. Feudalism “worked.” Slavery “worked.” Rotten boroughs “worked.” Heck, the British colonial government in America “worked.”

                      Things tend to seem like they work to certain people if they consistently seem to benefit. But that doesn’t actually mean it’s working. And perhaps more importantly, something working is not the same as good or meeting expectations. Assuming that a democracy that works is a good thing, you can’t say that it’s working if it seems to always result in minority group preferences being implementing. As a corollary you can’t necessarily claim that a working democracy that functions that way is actually good.

                    2. Slavery failed utterly. As did Rotten boroughs.

                      “Assuming that a democracy that works is a good thing, you can’t say that it’s working if it seems to always result in minority group preferences being implementing.”

                      A “minority group preferences” aren’t always being implimented. You’ve got a few isolated examples, and a whole lot more where the “majority” wins. Take Wisconsin, your favorite example. True, in this particular case in 2018, the Democrats didn’t win the lower legislative chamber. But they did win the governor’s office. Is that “not working”?

                    3. We’ll add on one other part here. Direct Democracy.

                      One of the more interesting things is Prop 22 and Prop 8 in California. Via direct democracy, a majority of voters in California consistently voted to define marriage as between just a man and a woman. But then technicalities in the California Constitution somehow overturned that. Then California voters amended their constitution to define it as just between a man and a woman. And that was somehow overturned again, at the federal level…

                      It’s funny how sometimes the Democratic wishes of the voters keep being overturned, isn’t it?

                    4. Slavery didn’t fail utterly. It was pretty robust.

                      The system that supposedly has worked marvels for over 200 years failed utterly. And even after the Civil War it couldn’t manage to eliminate de facto slavery for quite a while.

                    5. Slavery failed. Utterly. It was economically inefficient, and growing more inefficient over time. Slavery (and the reduced economic growth rates) are a big reason why the South lost the Civil war.

                      There are many reasons for this, which can be gone into depth later. But Slavery was a failure, on multiple levels.

                  2. And wanting to throw stuff out that works without learning the history and tradition is a shitty, intellectually lazy, and sophistic circular thinking excuse for change for the sake of change.

                    1. Learning the history of voting in the United States shows that you probably shouldn’t place too much weight on what the Founders thought was a great system for choosing representatives.

              2. Are you suggesting that we aren’t a democracy, we’re a republic? Because the usual response to that is that we are a democracy as well.

                1. Are you suggesting that we aren’t a democracy, we’re a republic?

                  No. I was calling out lazy, sophistic, intellectually dishonest, merit-free argumentation.

                  1. How? The question wasn’t whether it was good or bad, it was whether it was democratic. Pointing out that something has been a part of the world’s greatest democracy since its inception is pretty good evidence that it’s consistent with democracy.

                    1. Except that’s complete nonsense because for most of American history, most people couldn’t even vote.

                      1. At the time of the Constitution, there wasn’t even widespread universal white male suffrage. Also there was slavery. Also women couldn’t vote either.
                      2. The Jacksonian era brought about universal white male suffrage. There was still slavery, and women still couldn’t vote.
                      3. The Civil War eventually led to the 15th Amendment, and for a brief moment during reconstruction there was widespread black participation. But the Redeemer movement killed that. Also women still couldn’t vote.
                      4. After the nineteenth amendment the country was at a point where most people over 21 could theoretically vote. The South was the exception to that. It wasn’t a democracy at all.
                      5. The Voting Rights Act finally fulfilled the promise of the 15th Amendment…in 1965. And there was still the issue of young adults who were qualified to be part of society in countless other ways being excluded form voting.
                      6. The 26th Amendment fixed that in 1971.

                      So arguably we weren’t a real democracy from until 1965-1971, because of all the restrictions on voting. Let alone great or the greatest.

                    2. EscherEnigma just said he wasn’t questioning whether we were a democracy. Make up your mind, people.

                    3. jph, you seem to be mixing up JLG’s note about the past with EE’s comment about the present.

                    4. Seriously, whoever taught you to read should be ashamed of themselves. Absolutely ashamed. They did you such a disservice. It’s sad really.

          3. This will sound a bit elitist, but if you find voting difficult, perhaps you shouldn’t be voting. I’ve never had any issues. It’s always easy to update my registration, find out my polling place, get my registration card, etc. These days things are so automated that you can even do it through the postal service when you move and update your other addresses. Saved me a lot of time. All I had to do was print out a form and mail it.

            1. Well, so long as it was easy for you I’m sure everyone else is having exactly the same experience!

              1. I’ve done voter registration and address changes in 4 different municipalities. In light of people not providing detailed accounts of when their municipalities are fully to blame, pardon me for lacking sympathy.

  8. What a wildly irresponsible article for a sitting judge to write. As I was reading the post, I thought to myself “I didn’t know Bernie Sanders was a judge.” Then I saw Prof. Blackman’s point about the judge’s diatribe being similar to a Sanders screed. Great minds and all.

  9. I think this marks another instance of left of center judges throwing all pretenses of neutrality into the toilet in order to play pundit. Same thing happened recently with Judge Walton and his unnecessary and amateurish screed against AG William Barr.

    There is nothing to be gained from this, other than exercising one’s emotions. I mean “Assault on Democracy” is simply a laughable title from someone who ought to know better that we are not a Democracy. Its like they are defending a legal ideal that is simply not valid operative in this country.

    1. Walton is not a “left of center” judge by any standard, unless the only standard that matters is whether he bows down to Trump.

      What he said was not a “screed.” It was that he had doubts about Barr’s credibility, which is perfectly sensible.

      1. If he thinks the current Supreme Court is “hard right”, then he has self-identified as a leftist. One might even say a “hard leftist”.

        1. Not being well versed in the law tell me what a hard-right court would look like? What types of decisions would they make? Would Roe, Miranda, Brown survive? How about recent decisions by the Robert’s court with respect to corporations?

        2. Judge Walton isn’t the judge in the OP. Brightly is trying to conflate in another judge (one that the VC didn’t really speak much about).

          It appears to have worked on you.

          1. “Judge Walton isn’t the judge in the OP. Brightly is trying to conflate in another judge (one that the VC didn’t really speak much about).”

            Please learn what the word “conflate” really means.

      2. “Walton is not a “left of center” judge by any standard, unless the only standard that matters is whether he bows down to Trump.”

        Why? because he was nominated by Bush?

        Republicans have poor track records of putting Conservatives on the Bench.

        “What he said was not a “screed.” It was that he had doubts about Barr’s credibility, which is perfectly sensible.”

        I read it. It was a screed and a poorly founded one that could have been spewed by an MSNBC Anchor. Try again…

    2. Well, no. It could be considered auditioning for a promotion should the Democrats get control.

      1. Just taking a page from the James Ho playbook.

      2. Bullshit, Brett.

        Per Wikipedia:

        He was appointed by Bush II, and named to the FISC by Roberts. Also, “The Washington Post reported, “fellow judges and lawyers who appear before him say Walton’s decisions do not appear to be guided by politics but by a tough-on-crime mentality.”

        Besides which, he’s 71 years old. An unlikely candidate for a nomination by a Democratic President.

        It could be considered auditioning for a promotion should the Democrats get control.

        Or it could be a statement of facts that influenced his decision.

        Just once in your life, Brett, don’t assume the worst conceivable motive for behavior you dislike.

        1. Perhaps you should stop assuming the worst conceivable motive for behavior you dislike.

        2. He was appointed by Bush II, and named to the FISC by Roberts.

          And David Souter, who reliably voted with the liberal side of the court, was appointed by Bush I.

          The Washington Post reported…

          That’s about as solid a bit of proof as your, “But he was appointed by Bush” argument.

          1. Both are pretty solid evidence as to the likely limit of his ambitions.

            Do you honestly think a 71-year-old District Judge, appointed by Bush, is secretly harboring a hope of being appointed to a higher court by the next Democratic President? Really?

            Because that’s what Brett claimed motivated Walton. Be honest. Do you think that’s at all plausible?

            1. Both are pretty solid evidence as to the likely limit of his ambitions.

              The part of your quote had nothing to do with ambition limits, and everything to do with your attempt to prove that he isn’t aligned with left-leaning ideology.

              1. I’d say it’s evidence he isn’t a left-winger.

                What do you have that says he is, other than that he quite reasonably questioned a Trumpist liar’s credibility?

    3. We’re not totally a democracy, that’s true. But the institutions the purport to be democratic, like legislatures, should be chosen in a democratic manner. Decisions that make it so they are routinely chosen without majority support is a threat to their democratic aspect.

  10. So Mr. Blackman, does this warrant you making a complaint to a judicial ethics commission?

  11. the official law review of the American Constitution Society

    I’m not sure why you would continue reading the article knowing this fact.

  12. Judge Reinhardt has a successor!

  13. It seems like this judge just handed the every moderately-wealthy, corporate or conservative defendant he sees everything they need to file a recusal motion. Even if you think that wasn’t evidence of actual bias, it’s well past the threshold of appearance of partiality.

  14. So when Trump requests that Judge Adelman recuse himself, will it still be an assault on the independence of the judiciary? Will Roberts sally forth in his defense, or will Roberts be forced to admit that yes, there are political judges.

    1. Won’t Roberts be handling recusal motions deriving from his one-man crusade against Sen. Schumer?

      Has no one wondered why Chief Justice Roberts did not enlist his fellow Supreme Court justices to join the criticism of Sen. Schumer? Why are Chief Justice Roberts’ political statements any better or more proper than any other federal judge’s political statement? If the Supreme Court wishes to issue a statement, every member’s name should be included. Otherwise, is seems nothing more or other than just one another stale, old white guy ranting.

      1. He won’t be refusing himself on any matters involving Schumer any more than RBG will be recusing herself in matters involving Trump.

        In any case the standard is generally even when there could be grounds for recusal like Scalia’s friendship with Cheney, that when the legal matter deals with their official capacity as an office holder there is no need to recuse, as their would be in their personal capacity say as a party in a suit for damages.

      2. his one-man crusade against Sen. Schumer?

        LOL! The only one engaging in a crusade against Schumer is his own mouth.

    2. So when Trump requests that Judge Adelman recuse himself,

      Recuse himself from what? Random people don’t get to request that judges recuse themselves; only litigants do. Does Trump have any suits pending in the Eastern District of Wisconsin?

      1. Recusal in SCOTUS cases is up to the Justice who is the object of the filed petition for recusal.

    3. Trump has very publicly demanded that judges resign just because they’re Hispanic. He doesn’t exactly have credibility when it comes to serious recusal requests.

      For that matter, Thomas has never recused himself from cases involving his wife’s work, and despite making his personal bias against gay folk plainly clear, Scalia never recused himself from cases involving gays.

      So it’s not like the SCOTUS is exactly leading by example when it comes to recusal.

      1. Please cite where Trump demanded a judge resign just because he was Hispanic – and NOT because he was a member of an association that called itself “La Raza” (meaning “The Race”).

        IIRC, Trump should have done more research. This judge wasn’t a member of the very racist Hispanic political action group of that name, but of an association of Hispanic lawyers with a similar name. On the third hand, picking that name would make me wonder about that association… To me, an analog to that would be a country club near Kalamazoo Michigan choosing to spell it’s name as “The Kalamazoo Kountry Klub”. If the initials were just coincidental, the members would have to be as dumb as rocks.

  15. Perhaps the Senate should have been a bit more circumspect about confirming a judicial nominee who was, at the time of confirmation, a sitting Democratic State Senator with over 20 years of tenure in that political position. The odds that such a judge would even attempt to be impartial in matters involving political views that oppose his seems slim. In his dotage he is now formally revealing his true colors and is an embarrassment to the bench and every US Senator who voted for his confirmation.

    1. You’re worried about partisanship in federal judicial nominations and confirmations, like the average half-educated bigot is these days?

      Open wider, BadLib.

    2. Brett Kavanaugh went from White House Staff Secretary to the DC Circuit. So it’s not like being a political player is a disqualification for conservatives either.

  16. Hold the presses! Extra! Extra! Breaking News! Prospective Supreme Court justices lie to get onto the Court so they can mold decisions to further their political beliefs.

  17. I remember waiting in the attorney’s line to the Supreme Court for the oral arguments in the GOOD NEWS CLUB case. A gray haired gent a few people behind me pulled a newsletter out of his case and quoted from it. The newsletter was written by a Judge on for the 2nd Circuit and, writing about a Supreme Court decision overturning one of his opinions (I believe it was Lemon ), wrote, “Once again the Supreme Court got it wrong.” I was amused. I’d say that if a judge gets his opinions overturned by the Supreme Court, he should give a little thought about his legal theories.

    1. Correction, Lamb’s Chapel, not Lemon

    2. Doesn’t that work in reverse too? If a bunch of judges say that the Supreme Court is wrong, they should reconsider?

      1. None of us have a monopoly on wisdom. Coming down of my high horse, we should always listen to opposing ideas and, if we find that we were wrong, we should correct ourselves.
        I just had to go back and listen to the audio of the oral arguments in GOOD NEWS CLUB. I loved this comment by Scalia a little over a minute into oral arguments:
        “I assume that the judge who wrote the opinion for the Second Circuit was aware of Lamb’s Chapel, not just because you cited it, but because it had reversed an earlier decision of his, isn’t that right?”
        There was loud laughter in the chambers after that line.

    3. I’d say that if a judge gets his opinions overturned by the Supreme Court, he should give a little thought about his legal theories.

      You mean like Kavanaugh?

  18. The judicial canons aside, it has become common for only the Left to describe everyone on the Right in this kind of biased rhetoric. But let it once be done to them, they’ll call it hate speech and try to get the writer fired from his job and deplatformed from any forums.

    Which is why I would love to see something done about this. But as Posner once pointed out, federal judges regularly do worse and skate.

  19. Remember guys, when these super-American’s don their black robes they set aside their hyperpartisanship and hatred and just rule on the facts and do not insert their own policy preferences!

    1. Indeed that is the case for all nine SCOTUS justices. Couldn’t you tell?

      1. I would say most of our judiciary is like that.

        If everyone can predict the outcome of a political case based upon the court it’s in, the judiciary is broken.

        1. Remember the medical marijuana case, _Raich_? You couldn’t predict how the Justices would vote on that by their politics – but you certainly could predict it by their personal experience with cancer and chemotherapy. There were three Justices who had either been treated for cancer or had a spouse treated for cancer, one conservative and two liberal, and those were the only three who voted against using the Interstate Commerce clause to apply federal marijuana laws to marijuana that was neither in commerce nor crossing state lines.

  20. Yes. Noted right wing leader Donald Trump would never use biased rhetoric, childish insults, or hyperbole against his political opponents. He would never call them human scum or the enemy of the people or accuse them of treason or anything. And moreover, even if he did, there is no way that the right would ever support him. And if they did, it certainly wouldn’t be because they support the rhetoric. I mean who would ever say they just do things to “own the libs.” Or say “fuck your feelings.” Certainly not people on the right. Nope, definitely nothing to look for there.

    1. Yes. Noted right wing leader Donald Trump

      The crying of, “But Trump!” in response to any/everything…no matter how utterly unrelated to him…quickly went from amusing to pathetic quiet some time ago.

    2. I admit that news moves pretty fast these days, but I am almost certain I would have heard if Donald Trump had become a federal judge.

  21. Anyone who thinks the Roberts court is “hard right” is unhinged. That he doesn’t call out socialists and communists as “extreme left” is further proof.

    I wonder what he thinks Nazis were, Trump Lite?

    1. The present Court is pretty evenly balanced as it was before Kennedy’s retirement. See
      “Ideological Leanings of Supreme Court Justices,” Andrew D. Martin & Kevin M. Quinn, http:/ /mqscores. berkeley .edu/measures. php

  22. On a completely unrelated topic, my wife is listening to the opera CARMEN. I just heard one aria and I remembered this classic commercial from the 1970s.

    https://youtu.be/1jMsA1upCEU

    1. It wasn’t over until the fat lady sings!

    2. That great, TGMT. And so is the one that comes up next.

      Thanks.

  23. Josh, do you ever bother establishing why any of us should care about your oh-so-precious pearl-clutching? Here, you excerpt some high-octane rhetoric without refuting anything that’s asserted, and wave your hands at the rest of an article you admit you didn’t bother to read. And then you say it’s all unbecoming of a judge… without explaining why.

    Here’s a thought: Maybe law professors shouldn’t venture comments on judicial behavior, if they can’t be bothered to hold themselves to a higher standard, either?

    1. “Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.“

      This drivel needs refutation? It is preposterous on its face.

      1. Yes. It does.

        Because, even if you believe it is “drivel”, over half the country thinks it isn’t.

        1. That is the problem in a nutshell, nicely stated = Because, even if you believe it is “drivel”, over half the country thinks it isn’t.

      2. The Roberts Court has invalidated the pre-clearance provision of the Voting Rights Act, despite having been recently renewed by large majorities in Congress, claiming that it violated a previously-unknown principle of the “equal dignity of the states.” Republicans in several states previously covered by this provision of the VRA have swiftly enacted higher bars for voting in their states – including, as we just saw on Super Tuesday, closing polling sites disproportionately located in minority districts.

        The Roberts Court has turned away attempts to put a brake on extreme partisan gerrymandering, claiming that we can only rely on the political process in order to set any standard here. Thus, due to the Roberts Court, elected officials across the country will continue to select their constituents, according to however they choose to apportion political power among themselves.

        The Roberts Court has approved a new means of de-registering voters as consistent with the Voting Rights Act, making it simpler to bar people from voting in red states. Now, if you don’t respond to a postcard, which the state doesn’t have to prove you ever actually saw or received, you can be removed from the rolls, without knowing.

        That’s the Roberts record on “democracy.”

        I’m less familiar with Roberts pro-corporate agenda, but suffice it to say, if you feel that you have any meaningful recourse to the courts, when corporations poison your water or air, or when their products injure you, you maybe should think again.

        Anyway, yes – ordinarily, it is better to refute false statements than it is to repeat them contemptuously and assume that everyone will agree with how you feel about them.

        1. The Roberts Court has an overwhelmingly pro-business record.

        2. “The Roberts Court has invalidated the pre-clearance provision of the Voting Rights Act, despite having been recently renewed by large majorities in Congress, claiming that it violated a previously-unknown principle of the “equal dignity of the states.””

          There was no rational basis for Congress to continue requiring the same states, and only those states, to go through preclearance. Prior to the reenactment, Justices Stevens, Ginsburg, Souter, and Breyer all agreed that the continued use of the formula raised serious constitutional concerns.

          “Republicans in several states previously covered by this provision of the VRA have swiftly enacted higher bars for voting in their states – including, as we just saw on Super Tuesday, closing polling sites disproportionately located in minority districts.”

          The states that formerly required preclearance the not the only ones who made changes to the voting process. Why don’t minorities in other states deserve just as much protection? And you seem to concede that not all of the formerly covered states made changes. Doesn’t that cut against the argument that all of the same states should have been included? How can you justify keeping coverage the same if uncovered states are making objectionable claims while covered states are not?

          “The Roberts Court has turned away attempts to put a brake on extreme partisan gerrymandering, claiming that we can only rely on the political process in order to set any standard here.”

          And their decision was entirely consistent with established precedent. Not to mention that the proposed solution was just more partisan gerrymandering, but the right kind of gerrymandering this time kind of gave away the game.

          “The Roberts Court has approved a new means of de-registering voters as consistent with the Voting Rights Act, making it simpler to bar people from voting in red states. Now, if you don’t respond to a postcard, which the state doesn’t have to prove you ever actually saw or received, you can be removed from the rolls, without knowing.”

          This law was passed by a state that wasn’t subject to preclearance before Shelby County to implement a requirement of the National Voter Registration Act. And you are misrepresenting the law as well. You have to skip three or four federal elections in a row before your name can be purged.

          “That’s the Roberts record on “democracy.””

          Not really. That’s your attempt to distort the Roberts record on democracy.

  24. U.S. District Court Judge Lynn Adelman needs to retire gracefully; his comments as a sitting judge (senior status) about the Chief Justice of SCOTUS are completely inappropriate.

    Once he leaves the bench, he is free to say what he likes.

  25. Blackman’s description of the applicable legal precedents as “tropes” is a canard.

  26. Well, Blackman doesn’t say that Judge Adelman is wrong in the facts.

  27. Yuk yuk yuk.

    Now let’s hear you criticize when a conservative judge speaks out.

  28. theatlantic.com/politics/archive/2012/04/the-misplaced-indignation-of-the-judge-who-criticized-obama/255474/

    blah blah

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