There are 242 pending nominees to ram through after the end of the filibuster.

But what are the priorities and the politics of this drastic effort?

Top priorities for the White House include the confirmation in December of Jeh Johnson as secretary of homeland security, Mel Watt to head the Federal Housing Finance Agency and Janet Yellen to chair the Federal Reserve, according to a White House official. Obama also hopes for quick confirmation of three nominees to the powerful U.S. Court of Appeals for the District of Columbia Circuit....

And then?

“There is no document; there is no blueprint,” said Robert Raben, a prominent Democratic lawyer close to the White House. “In terms of a strategy, everybody’s blinking really hard.”

I guess "blinking really hard" means it was such a big surprise that they're still trying to wake up into the new reality. Or do you think it's blinking in the sense of losing one's nerve? They looked courageous, but then they blinked?

It would make more sense to say that the strategy must be to begin with the top priorities while continually observing the responses from the GOP and from the American people and developing the strategy as thing proceed. All along, the Democrats should be promoting their brand as the nominees themselves are presented as sound and highly competent, the Republicans attacks are made to seem scurrilous, and the people are manipulated into feeling as though the work of the government is going forward in a proper and beneficial way. The procedure should be used to distract attention from other less pleasant things — notably the Obamacare debacle (which itself might already be working to keep us from looking at even more unsettling matters).

If the Democrats can use this new confirmation process to good effect and they get lucky with a few Republicans looking arguably stupid or mean (not a bad bet), then more nominees can be advanced, perhaps even more advantageously as the moves of the game are learned and perfected.

How will Republicans play the game? They've already resisted confirming a bunch of "low-profile nominees by unanimous consent, as is customary in the Senate before an extended break." They can also absent themselves from committees so there's no quorum, which is needed to move the nominations to the floor. There's the "blue slip" procedure requiring each judicial nominee to get approval by both of their home state Senators. On the Senate floor, there can be up to 30 hours of debate time for every appeals court and Cabinet-level nominee and 8 hours for other nominees. I can picture Ted Cruz finding 30 hours worth of things to say about any Obama judicial nominee. If it's done well, it could help Republicans, but the Democrats and the media will call everything obstructionist and cherry-pick anything to denounce as mean, stupid, evil, etc.

Republicans have not indicated which delaying tactics, if any, they might employ, but they signaled a desire to seek revenge after Thursday’s vote. Sen. John McCain (R-Ariz.) said Democrats will “have trouble in a lot of areas, because there’s going to be a lot of anger.”...

On nominations, Raben said, the change in filibuster rules means that political fights are more likely to take place at the committee level. “Background investigations, courtesy visits, hearings and committee markups around nominees take on heightened importance because once it gets to the floor, absent a horrific fact about a nominee where significant numbers of the majority won’t defend it, it’s only a matter of time,” Raben said.

It's also only a matter of time until next year's elections, and we're already more or less in campaign mode. 30 (or even 8) hours is a lot of debate when you are talking about 242 nominees. And as the nasty, fired-up game proceeds, won't Republicans refine their moves? Pick which debates you want on the floor.

Obama’s aides said the president hopes the change in filibuster rules will get business back to usual, allowing him to staff his administration and fill the federal judiciary with nominees of his choosing without delay.

Obama and hope, a dreary old theme, newly hollowed out.

Why did New Yorkers decline — by a huge 61 to 39% margin — to end age discrimination against judges?

My answer: Because it wasn't phrased as an end to age discrimination. It was phrased at raising the retirement age to 80. It's currently 70. I think prompting people to think of judges as old as 80 brought on a skepticism that a kinder, gentler notion of not discriminating might have masked.

From the NYT article:

Proponents of the amendment argued that the age limit of 70 for judges, set in the State Constitution, was an anachronism passed just after the Civil War, before the era of antibiotics, heart surgery and hip replacements. People are living longer lives, proponents said, and judges often peak late in their careers.

Wouldn't that be a reason not to bother with an age limit back in the 1800s? Judges lingering in office would have been less of a problem back in the days when medical setbacks led more predictably and swiftly to death.

The chief judge of the state's highest court, Jonathan Lippman, said:

"I am disappointed... We were unable to get a consistent message across that people should be judged on their ability to do the job and not on some outdated conceptions of age."

What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today? What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA "clerks"), are unusually shielded from having their failing competence exposed?

Christie wins big, de Blasio wins, and what's happening in Virginia?

"Gov. Chris Christie of New Jersey won re-election by a crushing margin on Tuesday, a victory that vaulted him to the front rank of Republican presidential contenders and made him his party’s foremost proponent of pragmatism over ideology," says the NYT.

"Bill de Blasio poised to usher in new era of liberal governance in New York,"
says the Washington Post.

Meanwhile, in Virginia....

UPDATE: "Democrat Terry McAuliffe wins Va. governor's race, Fox News projects."

UPDATE 2: Looks like New Yorkers are happy with judges forced to retire at age 70.

In the NYC stop-and-frisk case, the 2d Circuit said the district judge Shira Scheindlin created an "appearance of partiality."

It stayed her order and removed her from the case.

The appellate court's 2-page ruling cited this NYT article in a footnote to criticize Scheindlin for the way the related-case rule has directed stop-and-frisk cases against the police to her ever since 1999, when she was randomly assigned the case dealing with the police shooting of Amadou Diallo. The NYT had this (last May):

In a city with dozens of Federal District Court judges, it is striking that a single judge has so many opportunities to rule on one of the Police Department’s signature crime-fighting tactics — a development that has frustrated city officials....

The language of the court rule leaves it to the discretion of individual judges to accept the case as related or not. It instructs judges to consider whether placing the cases in the same courtroom would result in conserving judicial resources, allow more efficient litigation or serve the convenience of the various parties.

The rule calls for related cases to have a “similarity of facts and legal issues” or to stem from the “same transactions or events.” But cases are not related merely because they involve identical legal issues or litigants....

Judge reads the local newspaper, gets second thoughts.

Milwaukee Journal Sentinel reports:

A Milwaukee County judge had permitted the rare use of Wisconsin's "Delayed Registration of Marriage" in allowing the man, George Poniewaz, to avoid a charge that he had committed benefits fraud by getting years of health insurance for someone who wasn't his wife. The judge's ruling was issued after the woman died.

But after he read Poniewaz's convoluted back story in the Milwaukee Journal Sentinel, Circuit Judge Kevin Martens, who signed the registration, expressed serious second thoughts....

"Law attracts some very bright people. But it is not profound. It is one of the simplest professional fields."

"... The young are analytically sharper than the old but lack experience. In an analytically weak field, experience may be essential to successful problem solving."

Writes Richard Posner, the 74-year-old judge, in his "Reflections on Judging."

AND: In line with this stress on real-world problem-solving is this proposal for law schools:

Law schools should require students who lack a technical background... to take a course in accounting and a course in statistics; a course that places a field or fields of law in its (or their) technological context; and at least one course, elsewhere in the university, of a purely scientific or technical character, such as applied math, statistics, economics (at the level at which it employs calculus and statistical analysis), physics, physiology, biochemistry, organic chemistry, some branch of engineering, or environmental or computer science.... If room needs to be made in the curriculum by cutting or shortening other courses, there is a good place to start: it is called constitutional law. Dominated as it is by the most political court in the land, constitutional law occupies far too large a role in legal education.

Judge Posner wrote a whole book and was, he says, surprised when everybody fixated on one sentence.

The "I plead guilty" one:

The sentence runs from the bottom of page 84 to the top of page 85, in a chapter entitled “The Challenge of Complexity.” The sentence reads in its entirety: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” (The footnote provides the name and citation of the opinion: Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed, 553 U.S. 181 (2008).)

And now he has to write a whole article to explain to the damned cherry-pickers what it means in context. Of course, he can't be surprised that any sentence that can be used by people who already have things they want to say will be used, especially on a hot issue like voter ID. Anything you say in a book of law can and will be used against you.

A judge doesn't have to write a book revealing ways of thinking about the cases that don't show up in the written opinions. He has a right to refuse to write anything other than the required cases, clamped into the conventions of judicial opinion writing.

But Judge Posner obviously loves to write his books. Who puts out more outside-of-the-opinions writings about what's really going on in the opinions than Richard Posner? He must love even when people get things wrong. People are talking about his writings, and that creates an occasion for more writing, and then people will talk about that too, as we're doing now.

All the best to the great Judge Posner — understood or misunderstood — innocent or guilty. Thanks for all the books, including the new one, "Reflections on Judging," which I'm downloading so I can — I plead guilty! — rip sentences out of context and work my will on them, cranking out the verbiage in this grand fellowship of graphomania.

"I had some dim intuitive feeling that what was wrong with all journalism is that the reporter tended to be objective and that that was one of the great lies of all time."

Said Norman Mailer, quoted in this subscribers-only article by Louis Menand in The New Yorker. As Menand puts it, Mailer "made the way in which events are reported part of what is reported."

ADDED: You could say something similar about law: I had some dim intuitive feeling that what was wrong with all judicial opinions is that the judge tended to be objective and that that was one of the great lies of all time. But what then? No judge can switch to writing the judicial equivalent of New Journalism.

(20 years ago, I tried to write about this problem, here (PDF) — with some quotes from Mailer's "Executioner's Song.")

AND: From that link, above, on New Journalism, which goes to Wikipedia:

How and when the term New Journalism began to refer to a genre is not clear....

But wherever and whenever the term arose, there is evidence of some literary experimentation in the early 1960s, as when Norman Mailer broke away from fiction to write Superman Comes to the Supermarket. A report of John F. Kennedy's nomination that year, the piece established a precedent which Mailer would later build on in his 1968 convention coverage (Miami and the Siege of Chicago) and in other nonfiction as well.

And here, you can read the full text of "Superman Comes to the Supermarket" (at the Esquire website, Esquire having once been a monumentally important magazine). It begins:

For once let us try to think about a political convention without losing ourselves in housing projects of fact and issue. Politics has its virtues, all too many of them -- it would not rank with baseball as a topic of conversation if it did not satisfy a great many things -- but one can suspect that its secret appeal is close to nicotine. Smoking cigarettes insulates one from one’s life, one does not feel as much, often happily so, and politics quarantines one from history; most of the people who nourish themselves in the political life are in the game not to make history but to be diverted from the history which is being made.

Convenient sidebar chez Esquire: 



Are we doomed? Did you go to my link and read the sentences that followed those 3 mindbendingly interesting sentences that began "Superman Comes to the Supermarket," or did you go over to click through to the explanation of why Miss Johansson in the sexiest woman alive (or what a "brutally frank" 98-year-old woman might say about sex)?

When does someone who's selling services as a "psychic" deserve to be prosecuted for committing a crime?

In NYC, the government prosecuted a fortune teller — Sylvia Mitchell, 39 — who worked in some storefront in Greenwich Village. The jury convicted her and she could be sentenced to as much as 15 years in prison. The charges were larceny and a scheme to defraud.

During a weeklong trial, prosecutors portrayed Ms. Mitchell as a clever swindler who preyed on distraught people, promising them that she could alleviate their troubles through prayer and meditation to remove what she called “negative energy” and rectify problems that arose from their “past lives.”

In my book, this is entertainment and unconventional psychological therapy. Let the buyer beware. Who's dumb enough to actually believe this? Should the government endeavor to protect everyone who succumbs to the temptation to blow a few bucks on a fortune teller? But this was a case where there were a couple victims who somehow had enough money to make their losses nontrivial. One woman gave Mitchell $27,000 in what was portrayed as an "exercise in letting go of money." Another put $18,000 in a jar as a way to relieve herself of "negative energy."

Both women admitted on the stand under cross-examination that they were deeply skeptical of Ms. Mitchell’s techniques, but paid her anyway, suggesting that they were never tricked into thinking the psychic had the power to better their lives, [Mitchell's lawyer] said.

But an assistant district attorney, James Bergamo, described Ms. Mitchell as an expert at discovering people’s vulnerabilities and scaring them into handing over their cash. It mattered little, he argued in his summation, if Ms. Mitchell’s clients believed what she said about their past lives or negative spirits: the important fact was that they believed she would return their money. “The facts scream scam,” he said.

In Stupid World, no one can hear facts screaming. 

Here's the classic U.S. Supreme Court case on when unbelievable beliefs can form the basis for a criminal prosecution for fraud: United States v. Ballard. The majority opinion — written by William O. Douglas — says the question needs to be whether the criminal defendant actually believed his own bullshit. (The defendants were faith healers.)

Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.

Justice Jackson, dissenting, thought it was wrong even to ask whether the defendant believes his own purported beliefs. I'm wracking my brain for a judicial opinion I love more than what Jackson says here, and I can't think of one, so let me give you the whole thing, replete with my boldface and commentary:

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.

Jackson confesses to the temptation to jump to what feels like the right outcome in this case, but he pulls back into the proper judicial role of following rules that should apply across the board.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they 'well knew' they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. 'If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways.' 

The quote, the footnote says, can be found in James's "Collected Essays and Reviews," and Jackson would also like us to read James's "Varieties of Religious Experience" and "The Will to Believe" as well as Burton's (delightfully titled) "Heyday of a Wizzard." (Those last 2 links will get you to free Kindle editions.)

If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.

And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that 'Faith means belief in something concerning which doubt is theoretically possible.' 

The quote is from "The Will to Belief."

Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. 

That's the best subtly-tucked-away little joke in all of the Supreme Court reporters: dispassionate judges. 

It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

There appear to be persons—let us hope not many—who find refreshment and courage in the teachings of the 'I Am' cult. If the members of the sect get comfort from the celestial guidance of their 'Saint Germain,' however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

You see what the danger is: discrimination against little-known and little-appreciated religions. If you start going after the scams, when will you stop? It is better not to start at all. Leave them all alone.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people's faiths.

He's right.

"The Hawai'i Girls Court is one of the first courts in the United States built on a full range of gender-specific and strength-based programming with a caseload targeting female juvenile offenders."

"Its all-female (Presiding Judge, Probation Officers, Program Coordinator, Therapist, etc.) staff is a uniquely powerful aspect of the program."

Gender-specific programming seeks to recognize the fundamental differences between male and female juvenile offenders as well as their different pathways to delinquency and, in doing so, act efficiently, creatively, and innovatively to stem the quickly rising tide of female delinquency.

It is our intention that empowering and building on our girls’ strengths now will also stop them from becoming involved in the criminal justice system as adult women, appearing as victims in domestic abuse cases and restraining order proceedings, or as mother’s [sic] in child protective services later in their lives.

The Hawai'i Girls Court Program is proud to be a model for gender-responsive programming while also advancing a vision of appropriate and gender-responsive services for all of Hawai'i. The explicit goal of this laboratory court is to promote the empowerment of girls involved in the Hawai'i juvenile justice system as well as to pilot programs that may be of relevance to the wider community of girls in the islands. By catalyzing a change in values, collaborating and building coalitions, the Hawai'i Girls Court is successfully inspiring others to share a gender-responsive vision and commit to youth programs that work with the critical and underserved population of juvenile female offenders. The Hawai'i Girls Court works for Hawai'i’s girls.

That link was sent to me by a former student who notes that it sounds like one of the hypotheticals I use in class when I teach the VMI case. It's not the separateness of the treatment of girls that's the main problem here. It's whether what is done for the boys is equally good.

How "gender-responsive" — to use the much-repeated term — can government be? Can government properly "recognize... fundamental differences" between males and females? Notice that "Girls Court" is presented as a "model" for other programs and the state is claiming to have a "vision" and a "mission."

"My amendment says basically that everybody including Justice Roberts — who seems to be such a fan of Obamacare — gets it too."

Said Rand Paul (not modeling orthodox notions of what judges are doing when they decide cases):

"See, right now, Justice Roberts is still continuing to have federal employee health insurance subsidized by the taxpayer.... And if he likes Obamacare so much, I’m going to give him an amendment that gives Obamacare to Justice Roberts."

If only judges had a personal interest in the outcome of their decisions...

In Minnesota: "Judges would still stand for re-election, but would face no challengers."

"Instead, voters would opt to keep judges or toss them out. If an incumbent lost, a nonpartisan review committee would assemble a new pool of potential replacements and the governor would select a new one."

That's the proposal. Before you click through to the article, think about whether this would serve the agenda of liberals or conservatives.

"I hope Sicari wins his case, but if he loses, I hope he dumps his day job and lets us hear all the lawyer jokes he's been keeping to himself..."

"... in his effort to avoid confusing the public and reflecting badly on the judiciary. If you're really good, Mr. Sicari, bust loose and confuse the hell out of us with all the bad reflections you've got."

Said I back in February. Today, I see that Vince Sicari has lost his case — he was a municipal judge and he lost at the state supreme court level — and he has quit.

Several justices questioned whether the public could separate Mr. Sicari’s position as a judge from roles he has played on the ABC hidden camera show “What Would You Do?” in which he has portrayed homophobic and racist characters. That quandary played a central role in the ruling on Thursday, as the justices noted that someone tuning into the show might not know that actors were used in the sketches. They applied the same standard for Mr. Sicari’s stand-up performances.

“In the course of his routines, Sicari has demeaned certain people based on national origin and religion and has revealed his political leanings,” according to the court’s opinion. “The court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings.”

The judge was judged by judges who themselves have the burden of expectations that judges can never assume that their audience understands sarcasm and role playing and all the other wonderful dimensions of speech that remain open to people who are allowed to be free.

"Secret-court judges upset at portrayal of ‘collaboration’ with government."

You wouldn't think federal judges, especially those working on secret things, would go public with their emotions, especially their emotions about how they themselves are portrayed, but that's the headline at WaPo. From the article:

“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” [U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court,] said in a statement to The Post...

Draft report = this 2009 document by the NSA inspector general, which was leaked recently by Edward Snowden.  (Note that the judge isn't really talking about her emotional "upset." News articles about judges tend to present them as a bundle of emotions, I guess because newspaper editors imagine us readers to click where our emotions lead us.)

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

Ex parte = no one participating as an opposing, adversarial party.

"Frankly, whenever I see a complaint alleging racism these days, I assume it’s a political hatchet job by political hacks."

"That assumption is generally borne out," says Instapundit, linking to this (of mine) and to Above The Law's "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones."

My post — "Character assassination attempted on 5th Circuit Judge Edith Jones" — encouraged people who actually attended Jones's talk at the University of Pennsylvania Law School to write to me. I'm still hoping someone made a recording, but I did get this response from someone who attended (and who gave me permission to reprint this):

On February 20, 2013, the Penn Federalist Society hosted Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit. Judge Jones was formerly chief judge for that court and is a prominent and well respected conservative judge. The topic was Federal Courts and the Death Penalty. The event was not recorded, but was, as with all of our events, open to the public. We normally do not record events.

The event was well attended, even drawing in members of the community, or so we assumed since we did not recognize these individuals. On April 12, a paralegal from Feldman, Orlansky & Sanders in Anchorage, AK, emailed the law school’s communications department to inquire whether the event had been recorded. Yesterday, an amalgam of special interest groups and individuals signed an ethics complaint against Judge Jones for her remarks. Most prominent is Marc Bookman, a Philadelphia-area attorney who has been happy to provide statements to the press and whose affidavit the student affidavits all refer to as the standard.

Religion

Judge Jones spoke about the death penalty. She was careful to distinguish between the constitutionality, morality, and effectiveness of capital punishment, presumably hoping that her audience was capable of understanding her distinctions. She dispensed with the constitutional question quickly, invoking the familiar argument that it is explicitly mentioned in the Constitution. She also unsurprisingly does not believe that the meaning of the text is susceptible to updating outside the Article V amendment process.

The moral argument was separated out to no avail, apparently. Judge Jones spoke about her faith tradition and the role of capital punishment in the Jewish holy texts (here I would assume most people know that these are part of the Christian Bible). She spoke of the possibility that execution was more humane and that, in many instances, it represented the only course of action that would lead the killer to repentance. She referenced a thought-provoking article that suggested the Roman Catholic Church once agreed with this position.

There is nothing unseemly or improper about a judge having personal moral convictions, whether they are extremely common beliefs (as here) or otherwise.

Judge Jones explicitly declined to cite the Bible as “legal support” for the death penalty, as the Complaint alleges on p 7, quoting Ex. Ep5. She clearly said that she was addressing separately the questions of the death penalty’s moral, legal, and constitutional justifications. It is surprising that someone should be so offended by Judge Jones’ use of moral language to discuss the morality of capital punishment.

Judge Jones deliberately and carefully separated the moral question from the legal and constitutional issues in the death penalty. The goal of this was to disentangle what is often confused.

Race

During her remarks, Judge Jones addressed several of the more common arguments against the death penalty. Among these is the contention that the penalty disproportionately falls on racial or ethnic minorities. It is worth noting that Judge Jones acknowledged this fact and acknowledged that it is not a good thing. She pointed out, however, that the real tragedy is that these communities normally do have a higher crime rate, and tend to have a dramatically higher violent crime rate. She also observed that much of the Mexican drug trade tends to be carried on by Hispanics, an inescapable reality in the Southwest border state where Judge Jones resides.

These demographics don’t make anyone happy, and Judge Jones was not making light of the problem they present. It was here, among other times, that several of the students (in their affidavits) claim they looked around and saw the shock and outrage on the faces of their peers. One of the students, a black man in the back of the room, asked Judge Jones to clarify whether she meant that these groups are actually predisposed towards violent crime. As Mr. Bookman’s own testimony (p28) reveals, she explicitly said that this was not her contention but rather that she was pointing out a statistical fact.

I point out the questioner’s race because lurking amidst the rest of these claims is the real issue of privilege, in this case (my own) white privilege. Most of the other claims of widespread dismay and displeasure reflect on the temperament of the offendee, but not this one. As a white man, I don’t know what it is like to have others cavalierly declare that people with my skin color commit a disproportionate amount of violent crime. If that were happening, I would insist on clarification and careful language each and every time, too. Judge Jones did clarify though, and she disclaimed any suggestion that she meant that a person’s race is determines his criminal propensity. Again, I will not dispute that people with different backgrounds may have been affected differently by her words.

The complaint reaches even greater levels of disrepute. It points to several capital cases in which expert psychological testimony was offered to the effect that the defendant’s race was a factor in the level of danger he posed in the future. The State of Texas publicly denounced this testimony. The complaint asserts that Judge Jones “maintains and publicly defends the very unconstitutional, biased beliefs that the State of Texas has rightly repudiated.”

Judge Jones did – and does – nothing of the sort. She was making no claims about individual defendants, psychology, or sentencing. She was answering the question, “Why are some groups incarcerated at rates higher than their proportion in the population at large?” and pointed out that the fact that those groups commit more crimes may have some connection to it. Her lecture was not about the causes of demographic trends and she refrained from speculating thereabout.

Mental Retardation

Judge Jones expressed skepticism at claims of mental retardation as a defense to capital murder, in part because a capital murder conviction has elements that cut against mental retardation. There is no impropriety in a judge observing that a convict slated for execution is willing to make claims that may not be true.

The complaint attempts to foment an atmosphere of outrage by insisting on putting “mental retardation” in quotes, insisting that “intellectually disabled” is the preferred term. Unlike the complaint, I do not use the term in quotes because the Supreme Court does not use the term in quotes, nor do the courts of Pennsylvania (Commonwealth v. Sanchez, 36 A.3d. 24 (Pa. 2011)), Alabama (Yeomans v. State, 2013 WL 1284361 (Ala. Crim. App. 2013)); or Minnesota (Chambers v. State, 2013 WL 2364079 (Minn. 2013)), just to take a few random examples from a cite check of Atkins. The complaint cites cases (footnote 11) that also use the term. Whatever the merits of what we should call those with diminished intellectual ability, Judge Jones is not calling them “imbeciles” or “morons.”

Not once did Judge Jones express a desire or intention to change the Atkins rule; even less did she give any suggestion that she would refuse to follow it in the courtroom. The complaint’s allegation that Judge Jones “expressed extreme bias… against the law of the United States” is patently frivolous.

Other Frivolous Claims

Innocence. Especially since DNA testing became reliable and widespread, the question of a death row inmate’s actual innocence has been prominent. Judge Jones remarked that these cases are extraordinarily rare and that in her experience defendant successes are due to technicalities, not innocence. The complaint makes no attempt to connect these comments to any impropriety, nor even that the claims are false.

Foreign Nationals: The complaint asserts that Judge Jones denigrated the system of justice in Mexico, then goes on to cite to testimony that does not support that claim. She is certainly right that Mexico does not provide defendants with lengthy appeals with an attorney, all at the state’s expense. I recently discovered that Mexico generally does not have an adversarial justice system. In light of that, Judge Jones’s comments about convicts preferring American correctional facilities were understated.

Individual Cases: Judge Jones was disgusted at heinous crimes committed by convicted criminals. The complaint suggests that because some of the individuals she discussed are still alive that they could come before her in future litigation. Anyone on the planet might come before the Fifth Circuit at some point. The Complaint only suggests that her disgust at brutal murders committed by yet-to-be-executed convicts is somehow inappropriate. Canon 3 (6) (A) of the Code of Conduct for United States Judges prohibits judges from “public comment on the merits” of a pending or impending case. This she did not do. She discussed only publicly available facts that were the basis of a capital conviction by a jury. The canon goes on to say “The prohibition on public comment on the merits does not extend… to scholarly presentations made for purposes of legal education.” The Federalist Society exists to complement formal legal education by providing promoting discourse on important social and legal issues. Although Judge Jones did not discuss the merits of the cases, she

Comments about the Supreme Court. Judge Jones criticized the development of some aspects of U.S. law, noting that some decisions have led to confusion. Her remarks respectful of the Court while criticizing past decisions, and she has demonstrated her willingness to follow the law even when she disagrees with it. She joined a panel in overturning a denial of habeas relief based on intervening Supreme Court precedent in Garcia v. Quarterman, 257 Fed. Appx. 717 (2007).

Emotional Reaction (and the Dramatic Ending)

The complaint also alleges that it was just such bad form for a judge to express emotion. Judge Jones expressed disapproval of those who attempt to evade their sentence by claiming mental incompetence. She was passionate about justice for evil men who slaughtered innocent people. She was passionate for the parents who watched as their child’s killer evaded his sentence on a technicality.

As the event was coming to a close (it was about 1:15 and we try, though usually fail, to end around 1:00), one of the nonstudent audience members asked a question. The question was why we should particularly care what the founding generation thought of the Constitution, since many of them owned slaves, and women did not vote, etc. It is unclear if the questioner meant we should discard the entire Constitution or only those parts that are not to our liking.

The question was so provocatively asked that I looked around and saw that some people were surprised. Students later told me they thought it was rudely presented. The questioner was, after all, challenging the legitimacy of the United States Constitution to an Article III judge. Rather than lead Mr. Bookman down the path of semantic meaning and constitutionalism, or decline his provocation outright, Judge Jones responded briefly and judiciously by defending the value of the Constitution and the nation that it constituted.

Since the time allocated for the event had passed, the president thanked the audience for their participation and we ended the event. The “abrupt” ending referenced in the complaint should not be attributed to Judge Jones or the content of her lecture—it is how the vast majority of our meetings must end because question and answer usually closes the meeting, and people often have a lot to say.

Character assassination attempted on 5th Circuit Judge Edith Jones.

This is truly scurrilous. I'm embarrassed for these organizations — so-called civil rights groups — who filed this complaint.

The lecture was not recorded, but witnesses recalled a number of Jones' controversial statements. The views she expressed included not only that minorities are responsible for more violent crime than are whites, but also that claims by death row inmates that racism or arbitrariness infected their prosecutions, or that they are actually innocent or even mentally retarded, are merely "red herrings," according to those who attended the lecture. She told the law students and other attendees that she thought the U.S. Supreme Court's ruling outlawing the death penalty for the mentally retarded did intellectually disabled individuals a disservice, and that to create such an exemption from execution was a "slippery slope," reads the complaint. "In describing … what Judge Jones said about these cases, I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defense raised, particularly by the defendants who claimed to be mentally retarded," reads the declaration, filed with the complaint, of veteran Pennsylvania-based death penalty attorney Marc Bookman, who attended the lecture. "Judge Jones's disgust at how these defendants were 'using mental retardation' was very evident and very disconcerting," reads the complaint.

She gave a speech. You don't have the text, but you'd like to destroy her. Why not just argue and debate about the ideas? Instead, you tell us about how you — who don't like her legal decisions — felt an upswelling of emotion over whatever it was she said.

Shame on you!

This was a lecture at the University of Pennsylvania School of Law, attended by many students. I find it hard to believe no one recorded the speech. I hope a recording emerges and a transcript can be made, because I would love to compare Jones's actual statement to the assertions made in the complaint.

Did any of my readers attend the lecture and make a digital recording? I'd be happy to receive it.

Should New York abandon mandatory retirement for judges aged 70?

70 for the highest court, 76 for some lower courts. There's a proposal to change this:

Some within the state’s judicial ranks have questioned [the] bill, saying it unfairly favors the high-level judges on the State Supreme Court and the Court of Appeals. Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups....

Assemblywoman Weinstein pointed to a case where a “very vibrant” jurist was forced off the bench: Judith S. Kaye, longtime chief judge of the Court of Appeals, who stepped down in 2008 after turning 70.

In an interview, Ms. Kaye said she agreed that the retirement requirement should be changed. “When the age was fixed at 70, we were at a time when it was really old,” Ms. Kaye said. “Today, people are still very sharp and able — they are not statutorily decrepit.”

It was sad to see Judge Kaye needing to retire, but there's something to be said for moving judges along and bringing new people in. Here's the U.S. Supreme Court opinion that interpreted the federal Age Discrimination in Employment Act not to cover state judges. The Court — composed, of course, of judges who themselves could not be forced to retire — noted the rational basis for age discrimination against judges:

The people... have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age... The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary.

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately — less dependent on the will of the people....

This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials — whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.

That was written by Sandra Day O'Connor — who retired from the U.S. Supreme Court, after 24 years, when she was 76.

"Judge rips Obama’s right-wing Plan B stance."

The headline at Salon. Text excerpts:

“It turns out that the same policies that President Bush followed were followed by President Obama,” said District Court Judge Edward Korman on Tuesday morning, in a charged and dramatic two-hour hearing in which the Obama administration defended its arbitrary policy to limit contraceptive access....

This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug....

“The irony is that I would be allowing what the FDA wanted. This has got to be one of the most unusual administrative law cases I have ever seen,” Korman said, adding, “I would have thought that on the day I handed down my decision, they would be drinking champagne at the FDA.”

"Judge holds self in contempt for his phone ringing in court, pays $25 fine."

"He says if he can't live by the rules he enforces he has no business enforcing the rules."

"Scott Walker may stop filling Dane County judge vacancies after 2nd appointee loses."

"Walker told reporters it was 'unfortunate' that Dane County Circuit Judge Rebecca St. John lost Tuesday's election."

She was defeated by attorney Rhonda Lanford, who used the Walker connection to attack St. John during the campaign.

"The mayor, the (district attorney) and others said that St. John was a great candidate," Walker said. "Unfortunately I think that politics has trumped that."

Why give a good person the kiss of death?

"In the future it probably doesn't make a lot of sense to try and go through that appointment process and make someone who's a good judge — or a good lawyer — be in a position like that," Walker said. "It just doesn't make any sense to drag people through that."

This would mean leaving vacancies unfilled, which seems a bit punitive/dysfunctional, but how is Walker supposed to identify the right person? Who deserves the responsibility along with the burden of fighting against the horrible accusation that you were picked by Scott Walker?