Sandra Day O'Connor's Attack on Court Reformers Continues

19 thoughts on “Sandra Day O’Connor’s Attack on Court Reformers Continues”

1. …your footnote 1 reveals (even more vividly than the body of your writing) that you are not honestly portraying what O’Connor is saying.

   From O’Connor’s WSJ article you linked:

   An independent judiciary does not mean, of course, that it is somehow improper to criticize judicial decisions. To the contrary, it is a healthy sign for democracy that the public is engaged with the workings of the judicial system. Judges can — and do — sometimes render erroneous decisions, but that is why appeals are allowed to higher courts. Moreover, judges can be — and are — subjected to discipline for legitimate reasons. Members of the judiciary cannot sincerely believe that they should be regarded as above the very laws that they are charged with interpreting. Ours is, after all, a nation of laws, not men — or even women.

   Nonetheless, we must be more vigilant in making sure that criticism does not cross over into intimidation. Judges and lawyers certainly play essential roles in opposing attacks on the judiciary. Indeed, later this week, I — along with Justice Stephen Breyer — am co-chairing a conference on judicial independence at Georgetown University Law Center. But the legal community needs help from other sectors of society to ensure that the current mood of cynicism does not end up compromising the rule of law. This includes members of the business community. Adam Smith, writing in “The Wealth of Nations,” well understood the importance of an independent judiciary: “[U]pon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security.” Without judicial independence, Smith warned, “it is scarce[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics.”

   More broadly, of course, all of society has a keen interest in countering threats to judicial independence. Judges who are afraid — whether they fear for their jobs or fear for their lives — cannot adequately fulfill the considerable responsibilities that the position demands. In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish.

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   1. Sandy Dee prevaricated in the WSJ: “Moreover, judges can be — and are — subjected to discipline for legitimate reasons.”

      Apart from the obvious antics like playing with the penis pump whilst on the bench and getting serviced by an ambitious local prosecutor, judicial discipline is as a practical matter nonexistent, as evidenced by Judge Kozinski’s dissent in the matter of the misconduct of Judge Manuel Real (excerpted):

      First of all, he fails to even acknowledge that he acted based on information he obtained from the party benefited by his orders, without disclosing this to the opposing parties or giving them an opportunity to correct any misstatements or exaggerations that may have been made to him in private. Our rules governing judicial misconduct proceedings use this precise example of conduct that is sanctionable: “‘Conduct prejudicial to the effective and expeditious administration of the business of the courts’… includes such things as … improperly engaging in discussions with lawyers or parties to cases in the absence of representatives of opposing parties, and other abuses of judicial office.” 9th Cir. Misconduct R. l(c); see also 28 U.S.C. В§ 351 (a); Code of Conduct for United States Judges, Canon 3(A)(4).

      Second, the judge withdrew the bankruptcy reference without any legal justification, for no reason other than to benefit the debtor by blocking her eviction. See id, Canon 3(C)(l)(a) (judges should not participate in cases “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which… the judge has a personal bias or prejudice concerning a party”); see also Cruz v. Abbate. 812 F.2d 571, 574 (9th Cir. 1987) (“While a defendant has no right to any particular procedure for the selection of the judge … he is entitled to have that decision made in a manner free from bias or the desire to influence the outcome of the proceedings.”).

      Third, he acted without notice, in direct contravention of Fed. R. Civ. P. 65(a)(l) which states in categorical terms, “No preliminary injunction shall be issued without notice to the adverse party.”*fn12 Notice is also one of the bedrock principles of due process and would be required even without the direct command of Rule 65(a). See Joint Anti-Fascist Refugee Comm. v. McGrath. 341 U.S. 123, 170-72 (1951) (Frankfurter, J., concurring); Mullane v. Central Hanover Bank & Trust Co.. 339 U.S. 306, 314 (1950).

      Fourth, the district judge failed to heed the other explicit procedures applicable to the issuance of an injunction, such as the requirements of a bond and a clear statement of reasons, see Fed. R. Civ. P. 65(c), (d), all of which are designed to provide transparency for purposes of appellate review and otherwise protect the interests of the party against which an injunction is entered. This was twice pointed out to the judge by the creditors in their motions for reconsideration, with no effect whatsoever. A federal courtroom is not Sherwood Forest; a judge may not take property from one party and give it to another, except by following established rules of procedure. See Shaman, Lubet & Alfini, supra. В§ 2.07, at 50 (“Judges abuse the power of the judicial office when they abbreviate or change critical aspects of the adversary process … [and] have been disciplined for … issuing dispositive orders without making findings of fact or setting forth reasons as required by law ….”).

      Fifth, the district judge acted without even colorable legal authority. To this day, I am unaware of any conceivable legal basis the district judge might have had for enjoining the state-court judgment and keeping the debtor in the Highland Avenue property at the expense of the Trust. See p. 11 n.3 supra. Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. He’s said nothing that would suggest he was mistaken-perhaps badly mistaken-but nevertheless acting in good faith. By his silence, the district judge has implicitly acknowledged that his orders were a raw exercise of power, unsupported by any authority other than that of his commission. See Shaman, Lubet & Alfini, supra. В§ 2.02, at 38 (“Intentional refusals to follow the law are another manifestation of unfitness for judicial office.”). Congress has surely not made us the most powerful judges in the world so we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it.

      Sixth, the district judge has failed to acknowledge the serious harm he caused the Trust through his improvident actions. Not only was it forced to host the debtor on its property rent-free for years-at a cost estimated by the court of appeals at $35,000-but it also had to spend money on lawyers to bring two motions for reconsideration and a mandamus petition in the court of appeals. Bankruptcy lawyers don’t come cheap, and I’d be surprised if the legal costs associated with undoing the harm inflicted by the district judge didn’t run into the tens of thousands of dollars. See Miss. Comm’n on Judicial Performance v. Perdue. 853 So. 2d 85, 91 (Miss. 2003) (party aggrieved by judge’s ex parte order incurred “attorneys fees in excess of $13,000.00”).*fn13

      Of all these things, the judge says nothing at all; he steadfastly refuses to admit any wrongdoing.

      Everyone should be as shocked as Judge Kozinski.  While we want and need judges to follow the law, there needs to be meaningful consequences for those judges who willfully defy it.

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   2. Those who yelp the most about the dangers of the public’s just attack upon our out-of-control judiciary (including the servile handmaidens of the Bar) invariably claim that it will somehow compromise “judicial independence.” Nothing could be further from the truth, but the truth rarely gets in the way of a judge who really wants something. Judges like their power, and want to keep it — and the lawyers who “work for them”3 will prostitute themselves for profit.

      What “Judicial Independence” Is

      In colonial America, judges served at the pleasure of the King of England. Obviously, if the King violated your rights, and you went into his court to seek redress, a judge dependent upon the King would be sorely tempted to place his finger on the scales of justice to keep his job. That is why our Founding Fathers complained in the Declaration of Independence that King George III “has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”4 A judge must be free to rule against the Crown without fear of retaliation, or he cannot protect your rights under law.

      What “Judicial Independence” Is NOT

      What a judge cannot do is disregard the law whenever he feels like it. Alexander Hamilton explained in the Federalist Papers that to “avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.”5 Blackstone noted that the judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.”6 A century earlier, Lord Coke wrote that “[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.”7 In a rational system of law, judges must be personally accountable for willful refusal to follow the law — just as everyone else is. After all, to hold otherwise would place judges above the law and potentially, put each and every one of the rest of us utterly beyond its protection. This cannot possibly be. As the Supreme Court observed over a century ago:

      No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.8

      Judicial immunity is judge-made law, declaring that “judges can disregard the law whenever we damn well feel like it, and there is absolutely nothing you can do to us when we do.” It is an arrangement that no society of freemen would ever willingly agree to, but one that is knowingly tolerated, so long as it happens to the other guy. Remember that the average German didn’t think that concentration camps were such a bad idea, as long as they contained Jews….

      Judicial immunity voids the Bill of Rights as a matter of definition. When the judge acts from the bench, his act is an act of the State. As such, when the final decision of our courts results in a denial or abridgment of a citizen’s fundamental human rights, and he is left without recourse, the lofty promises of our Constitution are broken. The civilized world has unanimously denounced this abuse of governmental power, decreeing that “any person whose [fundamental] rights or freedoms … are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”9

      By its terms, this includes judges. From New Zealand to Norway, either the State or individual judges are accountable for acts of willful judicial misconduct resulting in violations of citizens’ inalienable human rights.10 Even the Islamic Republic of Iran acknowledges the barbarous nature and fundamental injustice of judicial immunity.11 If `the land of the free and home of the brave’ cannot provide its citizens the same protection against the depredations of government enjoyed by the people of Iran, we fail to our utter disgrace.

      I can’t wait to read Sandy Dee’s response to that. 🙂

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   3. Cuervo,

        I don’t co-chair any symposiums on this particular subject but, I do attend them as a member of the legal community in another state and I often participate in active audience discussion.  I recently did so with one associate justice of the other state’s Supreme Court after he gave a long and detailed diatribe about how judges feel as `though they have a target painted on their backs and –quite truthfully– that the “attack” on the judiciary is nothing new and has ebbed and flowed since the birth of Our Republic. He chuckled, as did all present, when he said, “They call it ‘judicial activism.’  What that really means is that they just didn’t like what I did in their case, heh, heh, heh.”
        Both you and I, as men (or women) of honour), are part of this ongoing great debate, `though I hope we would avoid the need to settle our disagreements as Burr and Hamilton felt they must.
        You say that criticism of the judiciary is healthy.  However, many judges, apparently, disagree with you.
        Nevertheless, I note that lawyers are frequently apologizing for or being exhorted to defend the judiciary. See, e.g., Responding to Rhetoric Against Judges.  However, as Freedman commented in The Threat to Judicial Indepdence by Criticism of Judges-A Proposed Solution to the Real Problem, 25 Hofstra L.Rev. 729 (1997), “The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable.”

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   4. Cuervo, I missed that you also wrote, “Moreover, judges can be — and are — subjected to discipline for legitimate reasons.” 

      I disagree:

      According to the July 2006 Colorado Judicial Institute” newsletter, “Accountability is already built into the system, with regular retention elections when the public has the right to remove any judge with a simple majority of votes, performance reviews by the Judicial Performance Commission, and a Commission on Judicial Discipline that can remove judges for improper conduct.” Id. at 2.

      Perhaps, someone should ask, “How many judges have been removed from office by the retention system that the Institute claims has served us so well? In fact, how many voters know anything at all about the judges on the ballot box that they are asked to retain with a Yes/No vote? While we’re on the subject, how could voters learn much at all about these judges, given that entire categories of cases are now sealed from public view (see our Public Access to Court Records page)?”

      A cursory examination of [ordinary complaints and responses], I think, provides the answer. Additionally, we encourage readers to review the (2006) Annual Report of the Commission on Judicial Discipline with the following question in mind: How many judges were removed from office for improper conduct? (Allow us save you some time. The answer is zero). In fact, out of the 179 unique matters allegedly reviewed by the Commission, only three (3) resulted in any discipline, which discipline was “private” (simply meaning that the public was prevented from learning about the offense[s] or the alleged discipline).

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   5. Above, I mentioned in a reply that many judges disagree with you that criticism of the judiciary is healthy and necessary.  See NY Times article, A Bit of Thin Skin Peeks Out of the Robes, where the author notes that, “lately, more and more, judges seem to be saying their work should be above criticism. They have been lashing out at lawyers and even other judges who say harsh things about their decisions.”

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      1. Sorry if that fact wasn’t clear.

         I understand your frustration, but I do think you generalize way too much from your own experience. 

         The statistics regarding judicial retention do not suggest otherwise.  That judges have been retained much more often than not does not mean judges are getting away with misconduct.  On the contrary, I believe such stats show that judges, by and large, are not committing misconduct.

         The fact that some people can point to isolated instances of misconduct — and then other people also point to instances where there is no misconduct but instead there is irrational paranoia (see Kenneth Smith/riogrande) — does not convince me that judicial misconduct is rampant.  And it certainly does not convince me that it’s a good idea to make judges personally liable for their decisions to dissatisfied litigants (especially given the lawsuit-happy nature of some of the dissatisifed litigants who post on this site).  Talk about a sure recipe for disaster!

         But I do think reform can be a good thing.  The judicial performance process can be improved to make the evaluations more relevant and more widely known.  Judges can be educated to deal with litigants more humanely and with more patience.  Substantively, judges need more continuing education requirements.  I have other ideas, but this post is already too long.

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         1. not constitute “judicial misconduct,” Cuervo?  Methinks you’ve been drinking a little too much of your namesake.

            Cuervo: That judges have been retained much more often than not does not mean judges are getting away with misconduct.  On the contrary, I believe such stats show that judges, by and large, are not committing misconduct.

            A quick comparison with other jurisdictions with functional judicial discipline programs proves otherwise.  Discipline is invariably too lenient, but at least in other jurisdictions, you can see what people are complaining about.

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         2.   Honestly, like you, I don’t have much more than reasonably informed speculation, innuendo or anecdotal evidence to know whether judicial misconduct (which I define not as “felonies” but, rather, as capriciousness, indolence, dilatoriness, disregard for the rule of law, pro se bias, mean-spiritedness, etc.) is rampant or not.  We have collected several complaints and responses, which I think is quite illustrative of the efficacy of the Commission for the Abolition of Judicial Discipline (Rick Wehmhoefer’s Commission).
              What I do believe is that, if you “Take all the robes of all the good judges that have ever lived on the face of the earth . . .they would not be large enough to cover the iniquity of one corrupt judge.” -Henry Ward Beecher  (1887).
              At least I’m glad that there is civil dialogue.  I suppose, when we write in these forums, however obscure, it’s like a modern day analogy to the The Federalist Papers.

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         3. What’s wrong with attempting to enforce our rights under law through appeal to the courts? Perhaps you would prefer that we settle our legitimate grievances the old-fashioned way: by giving the parties how have wronged us a sudden and fatal case of lead poisoning?  Surely you jest, Cuervo!

            As Justice Moody observed a century ago, “[t]he right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.”  Chambers v. Baltimore and O. R. Co., 207 U.S. 142, 148 (1907).  If we as citizens do not have this right — the right to have colorably valid grievances grounded in law heard by a neutral and detached magistrate — the Bill of Rights might as well be toilet paper, for all the good it does.  And if this is indeed the case, Colorado’s “choice of evils” statute provides a valid basis for the use of lethal force.  As Alexander Hamilton explains in Federalist 28:

            In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense.  The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

            The citizen’s fundamental right to be free from tyrannical and arbitrary rule, and concomitant right to resort to violence to secure that right when necessary, has been universally embraced.  As one notorious radical rabble-rouser put it:

            Human rights cannot be given in the form of concessions.  Man is born with them and seeks to realize them in the course of his life.  And if they are not realized or experienced, then man rebels. And it cannot be otherwise, because he is a man.  His sense of honor expects it.

            This statement comes not from Stalin, Mao, or Che Guevara but rather, that penultimate prince of peace, Pope John Paul II.  Living under the iron fist of Communism, he understood this fact on a visceral level.  He adds in an encyclical that any violent result is morally “attributable to the aggressor whose action brought it about.”

            I refuse to accept second-class citizenship in this Third World banana republic without one hell of a fight.

            While violence is legally and morally permissible, it is rarely desirable.  As such, we citizens should attempt to secure our rights through peaceful means wherever possible.  But if those efforts are unavailing, what would you counsel, Cuervo?  Remember in your answer that in any answer you give, it is a precedent that can be used against you. 

             

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2. If Sandra Day O’Connor would obviate judicial accountability and discipline in Colorado, that has already been accomplished by our (non)regulating Commission on Judicial Discipline who have abdicated all responsibility to the judiciary themselves.  Read about the failings of this Commission at KnowYourCourts.com.  If Sandra Day O’Connor would suggest that the judiciary in Colorado or anywhere is above reproach, then I suggest that either she is dishonest, an idiot, or a total fool.

   Let Sandra Day O’Connor stand before a Colorado judge who ignores all statutory, federal, and constitutional law with impunity while threatening her with months or even years of incarceration on contrived and fraudulent contempt of court charges. 

   In truth, written laws are no longer being enforced by our courts at any level as new laws are being legislated from the bench.  These same court tyrants irreverently disregard our Constitution as a matter of convenience and Sandra Day O’Connor is not part of the solution, she’s part of the problem. 

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   1. The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law).

      Nonetheless, there are those who greet it the way Dracula would greet a bouquet of garlic. Justice Ruth Bader Ginsburg, for example, has said of the proposal: “That’s a really scary idea.”

      On the contrary, this bill would strengthen judicial independence because it would give people greater faith that if there were problems, the inspector general for the courts would deal with them and not sweep them under the rug. An inspector general would also protect judges from frivolous or false charges. …

      After I testified in favor of the legislation in June, I received many supporting letters. For example, a federal judge, John Kane (who gave me permission to quote his e-mail), wrote, “I’ve been a district judge for 29 years and think the federal judicial house has brought this legislation on itself.” He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.

      Judge Kane’s e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, “and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, ‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ “

      Kane added, “I’ve recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a ‘kiss your sister’ operation that hasn’t worked and won’t as long as judges are covering one another’s butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record.”

      
      –Ronald D. Rotunda, “The Courts Need This Watchdog,” Washington Post, Dec. 21, 2006, at A-29.

      What amazes me is that the court apologists here have no problem with the spectacle of judges deciding a case in which they have a personal financial interest, and those same judges deciding said case in a manner irreconcilable with United States Supreme Court precedent.  Yet, they are almost rabid in denouncing the foibles of everyone from Mike Coffman to the Shrub.

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3. Suggest this judicial accountability reform to your legislators.

   FAMILY COURT RECUSAL BOARD (FCRB)

   To increase checks and balances and peer review, a state Family Court Recusal Board will be formed with the goal to promptly appoint a new judge and set a new hearing when a child is at risk from a judge displaying anger, bias, or unfairness in parenting hearings.  Parents may directly motion the FCRB for a new judge.  Recusals made by the FCRB will be made public record.

   COMMENT: Under the present system a judge must agree to recuse him/herself.  This system is flawed by lack of accountability and allows children to become the victim of judicial anger and misconduct.  The appeals process is lengthy and costly and unlikely to overturn a parenting decision.  The Commission on Judicial Discipline is likewise unlikely to intervene and does not have a focus on family court. The FCRB would largely accomplish the Standing Committee on Family Issues goal of: “Implement a system to remove ill-suited or burned-out judges from family court assignments.”  In a nutshell, there needs to be a quick way for parents to get away from a judge who makes children the victim.

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   1. Whitter, check out attorney David Heleniak’s artickle, The New Star Chamber.  Unfortunately, my experience is that folks at large really don’t care about family court issues. Those that do are the ones going through it (a transient minority) and those, who have been through it would rather forget about it.  My recommendation to get your message out to people, who care, is to take a look at the docket sheets for the week at each of the divisions at your district court and give hand-outs to the divorcing parents going into and out of hearings.  Alternatively, park a van on the street near the entrance to the courthouse with a prominent but credible message, inviting them to stop by for a pamphlet or to visit a resource Web site where they can learn more about your proposal.

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4. I think any lawyer can tell numerous stories of judges acting arrogantly and, sometimes, unlawfully.

   There were many instances in my career of judges simply disregarding the law because they did not like the result it would lead to. This is a very common problem with state trial court judges, who don’t have to explain the reasons for rulings in writing. I had one case where a judge even told me that, as much as she would have liked to rule in my client’s favor and as much as she thought the law required it, she couldn’t because the lawyer on the other side was a big campaign contributor. I had other cases where the judge simply didn’t read the motions at all. That is really common. Judges have pre-conceived notions (wow, a lawyer with a closed mind, that’s a shocker) and often aren’t willing to read or listen to anything that runs counter to it.

   Judges are also largely unaccountable. It is judges who decide whether judges broke the rules. The public is largely excluded from those deliberations, too. And the whole thing that lets appeals courts issue “unpublished” decisions is just an excuse to let the appeals court, without any public oversight, disregard precedent and avoid having the world know about it. Every appellate decision should be published. In a world with the Internet, one can’t say that paper and publishing costs make that expense prohibitive.

   But part of the problem is the arrogance that infects the whole legal profession. Lawyers spend enormous amounts of energy convincing themselves that they are these idealistic and noble servants of the good society, advancing “equality” and “justice” and “the rule of law.” Of course few, if any, judges (and not many lawyers) take those values seriously and, even when they do, the demands of politics (and their partisan political affiliation) often override them.

   After all, who can say with a straight face that Bush v. Gore is an example of the judiciary honoring “equality” and the “rule of law”? Who can say that about many decisions that still sanction discrimination against people of different ethnic backgrounds, allow qualified people who are gay to be fired from jobs just because of their sexual orientation, shut the courthouse door to those who have legitimate grounds to object to flagrantly unlawful government activity, and sanction a collective cultural shrug of the shoulders as, literally, millions of children in the womb are killed under the guise of a court decision that does not even pretend to be based on the language of the constitution?

   I have long believed that the self-regulation of lawyers is bad for our democracy and bad for the profession. The same is true of the self-regulation of judges. I believe judges should be term-limited (that’s not intimidating them, as they wouldn’t lose their jobs before the end of their terms because of any decision they make) and I believe there should be clear criteria for the recommendations as to retention imposed. And judicial discipline agencies should have a majority of voting members from outside the legal profession and be elected by the public, not appointed by the courts or other politicians.

   Judges have too much power and too little accountability. At some point, the health of our democracy and the functioning of our political system (which, all too often, punts issues it thinks controversial to the courts) depends on rejecting the advice of apologists like Justice O’Connor and restoring checks and balances to the third branch.

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   1. Is this a joke? This sounds like it was written by me.  But, I was in an all day CLE (so, it wasn’t me)!

      My responses to your comments hereinbelow:

      >There were many instances in my career of judges simply disregarding the law because they did not like the result it would lead to.  Indeed, Professor Llewellyn more bluntly observed that judges often engage in “manhandling … [of] the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach . . .[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.” Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133, 135.

      > . . . This is a very common problem with state trial court judges, who don’t have to explain the reasons for rulings in writing.  You bet they don’t.  That’s certainly been my experience in Colorado, where I’ve won appeals, because of a lack of meaningful findings of fact or conclusions of law. And see M. Schwartzman, The Principal of Judicial Sincerity.

      > . . . Judges are also largely unaccountable. True. See http://www.knowyourc…

      > . . . It is judges who decide whether judges broke the rules. Also true.  See, e.g., When Judges Investigate Judges.

      > . . . The public is largely excluded from those deliberations, too. Also true. See, e.g., Wehmhoefer, Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law. 1043 (1988).

      > . . . And the whole thing that lets appeals courts issue “unpublished” decisions is just an excuse to let the appeals court, without any public oversight, disregard precedent and avoid having the world know about it. Every appellate decision should be published.  Right on the money, my friend.  See nonPublication.com.

      > . . . I have long believed that the self-regulation of lawyers is bad for our democracy and bad for the profession.  Not just you:  “Our nation is so dependent on its lawyers, that their ethical  problems transform themselves  into public difficulties.  Put simply: the ethical problems of lawyers are social and political problems for the rest of us. . .  It is, indeed, a mater of political concern when a profession -be it medicine, or public administration,  or law- has been underregulated, granted too much power and discretion. . . it is a well-known problem that the [attorney] disciplinary system  does not work very well; in 1970, a committee of the American Bar Association, headed by retired Supreme Court Justice Tom Clark, described self-regulation as a ‘scandalous situation,’ finding that a ‘substantial number of malefactors’ continue to practice law. [n.1]  There is little evidence suggesting any notable improvement since then.  – D. Luban, Lawyers and Justice (Princeton Univ. Press, 1988) at xviii, xxvi.  And see Laird Milburn, Professional Reform, 30 Colo.Law. 7 (2001) at 51 (sounding an alarm bell regarding the public’s declining respect for attorneys and citing 1994 ABA survey); see also 2006 Harris InteractiveВ® poll, finding lawyers as the least trusted of the 22 occupations included in the survey.  For Colorado specifics, see http://www.knowyourc…

      [n.1]  ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations (1970), the so-called “Clark Report.” pp 1,3.

       

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      1. I have the perfect alibi … was down at the country club playing golf.  Lots of witnesses, unfortunately. 🙂

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   2. Laird Milburn, Professional Reform, 30 Colo.Law. 7 (2001)

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   3. Most municipalities now have civilian review boards for their police departments because the old system of having police-police the police was not working.  I wonder why it should be any different for lawyers, judges, doctors, etc.
      I really do not believe that they have any higher standards of ethics-after all they are just people like the rest of us right? With the exception that they have more to loose if they get caught with their hands in the cookie jar so to speak.  The reason for the civilian reveiw boards for police became necessary because the police covered for each other just as judges, lawyers, and doctors do.

      Never put both feet in your mouth at the same time, because then you won’t have a leg to stand on

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