Wednesday, October 25, 2006

May It Please the Court

Again apologies are in order readers. Today is my first day back at work after what I fondly refer to as my “re-booting” and I’ve been playing catch-up at the office. I haven’t really been following the news and the daily political scene but have been more focused on healing and thinking pleasant thoughts about the medical-industrial complex, which is at least as nefarious as its military cousin.

Did anyone catch the comedy duo of Anton Scalia and Sam Alito over the week-end? They appeared side by side at a discussion of judicial independence sponsored by the National Italian American Foundation. Scalia used the occasion to rail away at the executive branch’s attempt to marginalize the Court and increase its own power in violation of the constitution. Nah, only kidding. Instead, Scalia spent a good portion of his speech railing against the way the Supreme court is portrayed in the press. "The press is never going to report judicial opinions accurately," he said. However, he also apparently thinks that the average Joe isn’t savvy enough to understand a well written judicial opinion because, in his view, "nobody would read it if you went into the details of the law that the court has to resolve." Huh? Let me get this straight. If the press reports on a decision they invariably get it wrong, but if they reported the entire decision no one would be able to understand it? No one knows more than me that judges have an inflated view of their own importance, but this guy takes the cake. What would be his solution to disseminating his precious bon mots to the dirty masses? A made for TV movie?

Tag in Sam Alito. Apparently Alito doesn’t think much of mass communication mediums like the internet. Free speech advocates take notice: "This is not just like somebody handing out a leaflet in the past, where a small number of people can see this," Alito said. "This is available to the world. ... It changes what it means to be a judge." Someone should tell this guy that being a strict constructionist doesn’t mean he has to ride in a buggy and write his decisions with a quill pen. While I occasionally claim the neo-luddite mantle for myself, the fact that the Court is ruing the dissemination of its legal reasoning by electronic means seems somewhat paranoid.

I suppose if judges are getting paranoid these days it is because movements are afoot to strip them of their immunity and jail them when they clearly abuse their discretion. The basic principle of the “jail4judges” initiative is to create special grand juries to investigate specific acts of judicial corruption. These grand juries would have the power to indict, and provide for the trial, conviction and sentencing of judges when it can be proven that the judicial officers committed acts of willful corruption. The reasoning of the proponents of this sort of system is that it takes the disciplining of the judiciary out of the hands of, well, the judiciary and puts it into the hands of the citizenry. This would be paid for by a tax on sitting judges salaries. This proposal is actually on the ballot in South Dakota and stands a good chance of passing.

I have to admit that when I first heard of the movement I thought it was a good idea. In my five years of litigation practice in Brooklyn and Manhattan I appeared in front of judges who were psychotic, abusive, ego-maniacal, or just plain stupid. I have also appeared before a few, a very few, judges who were so thoughtful and intelligent that they reminded me of why I went to law school in the first place. Unfortunately these are the exceptions rather than the rule. However, the one thing that would rankle me more than seeing a bad judge get away with incompetence on the bench would be seeing a good judge be brought down by a litigant who filed a case looking for revenge when his own case went the wrong way. The average citizen does not have the mental acuity to sit and play Monday morning quarterback about results of complicated cases; that’s what appellate courts are for.

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