Should A Federal Judge Be Remembered For "Champion[ing] the Underdog and the Uncelebrated"?

I would think judges should be remembered for treating all parties equally under the law.

Do you remember Judge Robert Pratt from the Southern District of Iowa? Probably not. In December 2020, he made headlines by giving an interview with the Associated Press about President Trump's pardons:

"It's not surprising that a criminal like Trump pardons other criminals," senior U.S. District Judge Robert Pratt of the Southern District of Iowa told The Associated Press in a brief phone interview Monday. In a bit of humor, he said: "But apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey."

As I noted at the time, Pratt also made a gratuitous comment about the Emoluments Clauses--an issue that was then-pending before the Supreme Court:

He noted that the framers of the U.S. constitution sought to stop U.S. officials from "enriching themselves" while in office by banning gifts and payments from foreign powers. Ongoing lawsuits have accused Trump of illegally profiting off the presidency through his luxury Washington hotel. A White House spokesman declined comment on Pratt's remarks.

I observed:

What is wrong with federal judges? Trump derangement syndrome has permeated Article III. Judge Pratt should follow the lead of Judge Adelman, and apologize before he is sanctioned.

I suppose the one plus side of this incident is that only one judge--so far--was willing to talk to the press. I hope there are not more. Judges should never, ever, talk to reporters.

Well, he would not apologize on his own. Chief Judge Lavenski Smith found there was "cognizable misconduct." Pratt accepted that finding, and apologized for his "inappropriate partisan statements."

I largely forgot about Judge Pratt, until I noticed this story about his obituary.

An obituary for Pratt, who was born May 3, 1947, described him as a man who "championed the underdog and the uncelebrated" throughout his career in public service.

Obituaries are usually written by family and friends who might not be tuned into the nuances of judicial ethics. Then again, Judge Pratt demonstrated through his own comments such a lack of discretion.

Should we celebrate judges for championing underdogs and uncelebrated? Is that their job? I am not a fan of the phrase "equal justice under law," but it at least gets the point across that lady justice wears a blindfold. Everyone should get a fair shake before the court. Still, much of the caselaw from the Warren Court requires putting a thumb on the scale in favor of the "underdog." The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels. Yet another reason to get rid of Footnote 4 altogether. I hope the Court does not reaffirm it any further in Hecox, the transgender cases.

I recently re-watched Justice Thurgood Marshall's farewell press conference after he announced his retirement. I included this excerpt in my Civitas column on the SCOTUS NDA:

 In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that "I don't think that should be used as an excuse" for "picking the wrong negro."

Well, that part was a bit cringey. But other parts were light-hearted, and even refrehsing. Another reporter asked if Marshall worried that his replacement would undermine the Justice's civil rights legacy. Marshall's answer (I am paraphrasing) was that when he became a federal judge, he was no longer an advocate, and no longer represented any clients or cause. He simply decided the cases. Therefore, Marshall said, it wasn't his concern what would happen to his legacy. I was touched by Marshall's comments, which I thought were exactly right. Justice Ginsburg took a very different approach with her final words. She said, "My most fervent wish is that I will not be replaced until a new president is installed."

Comments

[JoeFromtheBronx]

Ginsburg made a private statement on her deathbed.

It is rather obvious that Marshall cared on some level about who replaced him. He didn't stay on past when he was probably objectively able, with no concern that a Republican president was in power. He ultimately noted that he "was falling apart."

And I recall some reference to him thinking Bush was going to win re-election. He hung on another year after Brennan retired. He felt he couldn't do so anymore.

If it were June 1992, he very well might have acted differently.

==

Was Josh Blackman once a victim of "Trump Derangement Syndrome"? He argued, signing a letter against Trump in 2016, that Hillary Clinton was less dangerous than Donald Trump.

I am proud to join a list of “Originalists Against Trump.” Unlike many of these lists–which are based on general political grievances–this group focuses on areas within my competency: the President’s constitutional obligations and powers. On these fronts, Trump is utterly unqualified to be President. Make no mistake–I am dreading a Clinton Presidency. In quite predictable ways, she will move the country even further away from the original understanding of our Constitution. During the last debate, when asked about criteria for appointing a Supreme Court Justice, she didn’t even mention the Constitution. This wasn’t inadvertent. However, as bad as she will be, the arbitrary and capricious Trump will destroy our Republic in unpredictable ways.

The final line of the letter: "And we call on them, through their voices and their ballots, to deny the executive power of the United States to a man as unfit to wield it as Donald Trump."

https://joshblackman.com/blog/2016/10/17/originalists-against-trump/

[John 4]

Truly a remarkable turnaround.

[ReaderY]

“You see, we speak of being anchored to our principles. But if the weather turns nasty we up with the anchor and let it down where there’s less wind, and the fishing’s better. “Look,” we say. “Look I’m anchored! To my principles!”

— Sir Thomas More, Robert Bolt’s A Man For All Seasons

[Please, Daivd, Seek Help]

I for one agree with Josh that the underdogs and the downtrodden have had it too good for too long and justice demands they stop being coddled. I would give anything to trade places with the poor and the sick.

[Krayt]

If you have an issue, contact your represntatives and demand a new law! It's easy in a democracy!

[Hugo S. Cunningham]

A few years earlier, Justice Marshall had a pleasing comeback for right-wing vultures circling over his head: "I expect to die at age 115-- shot by a jealous husband."

[gdanning]

The obituary actually doesn't say that he championed the underdog AS A JUDGE.

That being said, there is certainly wisdom in the old observation that the law in its wisdom forbids both the rich and the poor from sleeping under bridges, and it doesn't seem inappropriate for judges to at least exhibit some skepticism regarding how the political branches treat those without political power.

[David Nieporent]

That being said, there is certainly wisdom in the old observation that the law in its wisdom forbids both the rich and the poor from sleeping under bridges

Um, you know that this was said sarcastically and as an indictment of the law by the author.

[Rubbish!]

Pratt became wealthy in private practice by taking SSDI cases on contingency. He won lots of those and then contributed to lefty political figures, including Tom Harkin, who then championed him for the federal bench. Pratt was a good, effective lawyer. I had a number of cases that he handled, but never anything with political questions. He was fair to all sides IMO and a pretty good judge.

[bernard11]

Trump derangement syndrome has permeated Article III.

Oh come on, Josh. You cite two weak examples by one judge in support of this claim. Unless, of course, you think that any decision that goes against Trump is caused by TDS.

Should we celebrate judges for championing underdogs and uncelebrated?

Well, that depends on the nature of the "championing," does it not? If it means trying to assure that they have adequate rights to be heard in court and to present their cases, then yes.

[JoeFromtheBronx]

The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels.

The first paragraph of the footnote:

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth."

The second:

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation."

The third references "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."

Early justices spoke about only using judicial review to override other branches in very clear cases. These are reasonable glosses to that sentiment. Marshall in Marbury v. Madison cited some crystal-clear provisions. If there is a problem with the political processes in place, that might be a factor. As is the last.

Compare the debate over natural law or open-ended principles of justice in the 1790s, where federal judges second-guessing other branches is an iffier proposition. The 9th Amendment alone suggests that it will sometimes be a factor, but it doesn't erase a reasonable (at least as a possibility) level of caution.

[Fritz]

Ohio and Iowa are two different states.

[Pooblius]

You expect Crackman to know the difference while he's dancing on some poor schmuck's grave?

[SRG2]

it at least gets the point across that lady justice wears a blindfold

Not atop Old Bailey she doesn't.

Everyone should get a fair shake before the court.

If one side is a corporation with in-house counsel and a high-end law firm on retainer, and the other side, an individual who can't afford even a billboard lawyer, a fair shake before the court doesn't mean "avoiding recognition of the discrepancy of resources".