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Archive for May 28th, 2009

As an attorney, I am very familiar with the requirement of ethical and honest dealing that is expected of me and other members of my profession.  I work hard to maintain these standards, and have occasionally had to consult with my state bar association’s ethics officials in order to help maintain these standards.  As high as these standards are, the standards for judges are an even higher bar, as they truly are Justice’s gatekeepers.  When they display bias or impropriety, the entire profession suffers from the loss of public trust and confidence that our legal system is just and provides predictable results that our society can rely on and use to build our economy and culture.

The Fist-Bumper-In-Chief has already done considerable damage to the notion of rule of law that has allowed our nation unparalleled success among the family of nations.  Whether it is his concerted efforts to continue the legality of murdering the unborn, to violate basic contract law because it violates his sense of justice and decency, and to allow the public vilification of those who would see those contracts enforced, or to expand the federal government’s role in the economy by expanding its duties as regulator by active participation in the market and the selection of those who will succeed.  While these activities all undermine the rule of law on which this society depends, they do have the virtue of being capable of reversal by subsequent administrations who have the wisdom that experience and practical knowledge so lacking in the Pretender who currently occupies the Oval Office.  However, as suspected, he has been presented with the opportunity to do lasting violence to the nation’s legal system.  With the nomination of Judge Sonia Sotomayor to fill the vacancy on the United States Supreme Court created by the retirement of Justice David Suitor.  His choice is predictably leftist and startlingly injudicious in her revealing remarks.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

This assertion is breathtaking in its boldly racist attitude.  It also appears to me to violate the Model Code of Judicial Conduct promulgated by the American Bar Association. 

Don’t get me wrong.  I am no friend of the American Bar Association.  Its activities left me behind a long time ago when the activists in my profession got hold of the organization and started to use it to advocate for political views that I either did not agree with, or found repugnant.  However, the Model Code of Judicial Conduct is a well-reasoned set of rules designed to protect the integrity of the judiciary and to maintain the public’s confidence in the American legal system.

From its Preamble:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them.

Even before taking a close look at the canons themselves, it would be difficult to reconcile the remarks above, uttered by a sitting federal Judge in a public forum with this statement of purpose.   This becomes an even more arduous task when you consider her elaboration on those remarks:

For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment [inherently belonging to minorities] which other men in different circumstances have been able to reach.

And however well-crafted the Model Judicial Code may be, her wisdom and insight are clearly more important than maintaining the integrity of the bench:

Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”

Cue the Twilight Zone theme music.  This runs contrary to everything that was beaten into my thick head in law school.  It might merely offend you; it makes me want to break something…a lot of somethings.

A closer examination of the Code highlights just how contrary Judge Sotomayor’s stated beliefs are to the conduct she and every judge is expected to maintain:

Canon 1

 A. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.

Commentary:

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. A judiciary of integrity is one in which judges are known for their probity, fairness, honesty, uprightness, and soundness of character. An independent judiciary is one free of inappropriate outside influences. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.

As an ‘unenlightened’ white male, I certainly would not expect a Justice Sotomayor to render any matter I brought before the Court without fear or favor, especially if my adversary was a minority, or a female, or a female minority.

Further reading of the Canons do not rehabilitate the good Judge’s apparent fitness for the bench.

Canon 2

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES

A. A judge shall respect and comply with the law* and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commentary:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. Examples are the restrictions on judicial speech imposed by Sections 3(B)(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. See also Commentary under Section 2C.

As I said, this doesn’t appear to help the Judge.  Being a practicing attorney, however, I realize that not all words in documents written by members of my tribe are accorded their everyday meanings.  “Impartiality” and “impartial” are actually defined terms.  From the “Terminology” section;

“Impartiality” or “impartial” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. See Sections 2A, 3B(10), 3E(1), 5A(3)(a) and 5A(3)(d)(i).

Given the Judge’s prior remarks, it would be safe to say that she flunks the impartiality standard.  A conclusion supported by the review of Canon 3.

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by law*. In the performance of these duties, the following standards apply.

B. Adjudicative Responsibilities.

(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office.

Commentary:

Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. Sections 3B(9) and (10) do not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by [Rule 3.6 of the ABA Model Rules of Professional Conduct]. (Each jurisdiction should substitute an appropriate reference to its rule.)

Which is why any definitive answer to a ‘litmus test’ question is dangerous territory for a nominee.  My guess is that faced with a press that is eager to put a positive spin on her confirmation hearings, a Dhimicratic majority in the Senate, and the fact that she was nominated in spite of the very things she has said in the past, she will fearlessly provide clear answers to such questions.

I fear that she will be confirmed and appointed to the Supreme Court, and I reluctantly wonder how long I will be able to continue in my role as an officer of the court when I have no confidence in the judicial nominees of the government.  It is kind of hard to convince your clients that they should be patient and work within the system when you yourself have doubts about its integrity.  We all are damaged when Themis (or her younger Roman cousin Justicia) peeks, and the Pretender dishonors our entire profession with a nominee suffering from such obvious and open impairments to her ability to impartially perform her duties.

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