Friday, April 20, 2012

Could You Repeat My Job Description?

At a forum conducted at the Newseum in the nation’s capital, Justice Elena Kagan confirmed that she doesn’t have a clue about what the difference is between being a lawyer/advocate and being a judge/neutral referee. Said the former Solicitor General: “Sometimes I think that the job doesn’t really change at all.” That’s like a baseball umpire saying his job is the same as his former job as coach of one of the teams.

In fact, Kagan explained why the job as Supreme Court Justice is even easier than being an advocate for a particular case or client: “As Solicitor General, my life was spent trying to persuade nine people and now it’s just trying to persuade eight people.” This probably explains why she sees no problem with having been an active partisan participant in the early Obamacare court cases, and then refusing to recuse herself when the cases came before the Supreme Court on which she now sits.

She wouldn’t have to do much convincing of three of her fellow Newseum panelists. They included Red Sonia Sotomayor (a wise Latina) and Ruth Bader Ginsburg (former ACLU attorney and extreme critic of the out-of-date Constitution). The third was the guest of honor—former Justice Sandra Day O’Connor. The occasion was the celebration of the thirtieth anniversary of O’Connor’s appointment to the Supreme Court, making her the first woman to sit on the court.

O’Connor was appointed by President Ronald Reagan, but this was before the Republican war one women. Just as President Dwight Eisenhower once said that appointing Earl Warren to the Supreme Court was his biggest mistake in office, President Reagan proved that even great presidents make mistakes. O’Connor voted in favor of radically altering the constitutional principle of the government taking property for public use by converting it to taking of property for a public purpose. That isn’t a minor difference in wording, but a complete perversion of the clear words of the Constitution.

O’Connor actually wrote an opinion in an affirmative action case which stated that she “didn’t know if the law was constitutional or not.” Guess she didn’t quite comprehend her job description either. If a Supreme Court Justice can’t articulate her understanding of the law and the Constitution, who can? O’Connor went all touch-feely in an opinion overturning a state sodomy statute by saying that everyone “should be free to determine his or her place in the cosmos.” Yes, Madam Justice, but what about our place in America and the role of the Constitution’s Tenth Amendment?

Kagan’s deep involvement as Solicitor General in the politics and legal maneuvering surrounding the early phases of state challenges to Obamacare is well documented. E-mails to her subordinates about how to litigate the Obamacare cases abound. In one case, her e-mail after a dismissal of one of the challenges was “we won.” Considerable testimony before the Senate Judiciary Committee expanded on those e-mails and the use of Kagan’s considerable resources and staff to defend Obamacare. All of that is perfectly acceptable and even good work for a Solicitor General. But a fair, knowledgeable and ethical Supreme Court Justice would see the clear conflict of interest and incompatibility of office in hearing cases she was deeply involved in.

Perhaps this will explain her confusion. When asked at the forum if sitting on the Supreme Court bench is still challenging for her, Kagan replied: “Oh, every day is a challenge. But, you know, for me, I had never been a judge before, and just figuring out the mechanics of the job—you know, I have these four clerks, what do I do with them? What is the best process for drafting an opinion? When do I read the briefs? Do I read them the day before, the week before?”

My answer to that is “why bother reading them at all since you were instrumental in writing briefs which are merely being rehashed in the consolidated Obamacare cases pending before your high court?” Many great Supreme Court Justices had no prior judicial experience. Lack of judicial experience is certainly not a disqualifier for a seat on the high bench if all the other positive indicators are there.

I know a great many very fine trial attorneys who would be terrible judges simply because they can't shift gears from advocate to neutral referee. Likewise, I appeared before many excellent appellate court judges who had never set foot inside a trial court and had never sat on a bench previously. And sadly, I also appeared before several trial and appellate judges who never should have been on the bench in the first place, let alone elevated to a higher court. It's called "judicial temperament." But lack of ethics should be a disqualifier at every stage.

Kagan outright lied and obfuscated when she was asked by the Senate Judiciary Committee about her personal involvement in the early Obamacare cases as well as the drafting of the original legislation. Even first year law students are taught the very distinct differences between the role of the advocate and the role of the judge (unless they took their courses from Kagan when she was a law professor at the University of Chicago or Harvard Law). It’s simple. If you were actively involved in the cases at an earlier stage as an attorney/advocate, you must not be involved in hearing and determining those same cases when they come before you as a judge.

Kagan’s refusal to recuse herself on the Obamacare cases at the Supreme Court is doubly-damnable, since she knows full well that there is no higher court to reverse her decision. That said, it is a rather routine lapse of ethics for a former member of the most corrupt administration in recent memory.

35 comments:

Tennessee Jed said...

a very interesting post on a great topic. The delay continues on blogger btw. In a way, I kind of understand what Kagan is trying to say. Just like debaters, lawyers are "hired guns" who can theoretically argue any side of an issue. Just like David Boies gets hired by diverse clients, good legal people at least theoretically should be able to keep their personal beliefs out of their work. Unfortunately, people are human. We have seen how journalists have totally failed to keep their biases out of the system so why do people think justices should be any different.

For some reason, the system has been set up so the Supremes are considered so fair minded and that they are given the opportunity to determine for themselves if they need to recuse themselves. I think someone who actually argued one side of a case should know enough to realize that even if she could theoretically be objective, "Caesar's wife should be beyond suspicion." Liberals talk about Robert's needing the court to appear more than just political. Hell, Kagan's stance does more to make them look political than a 5 to 4 shootdown ever could . . . except in the liberal's mind.

LawHawkRFD said...

Tennessee: I've been thinking about how the problem of conflict-of-interest might be resolved when a Justice refuses to recuse. Perhaps Congress could pass "enabling" legislation that creates a panel of former retired Justices who can make the decision on whether a Justice should recuse. The decision shouldn't be left to the sitting Justices who have an apparent conflict. I'm going to have to do some more thinking and research about whether such a panel would be constitutional, but Congress has more power over the workings of the Supreme Court than most people might imagine.

I doubt the panel would have to be used very often since most Justices wouldn't want to have to face being overruled by any other body.

And you are absolutely correct. Kagan's refusal to recuse herself is purely political, and ignores the rule of ethics that says judges should avoid impropriety and/or the appearance of impropriety.

Joel Farnham said...

LawHawk,

The only reason I can think of Kagan to be considered for the appointment is because of ObamaCare. Obama needed someone who would vote for ObamaCare consistently despite on-target arguments to throw that piece of dog excrement out.

Too bad there is no reason to impeach Kagan.

LawHawkRFD said...

Joel: I think you make a very good point. Congress can impeach a Supreme Court Justice for good cause. But you see how well that worked when they tried to impeach Bill Clinton in the executive branch, and there was plenty more evidence of wrongdoing there.

Tennessee Jed said...

Hawk - I thought there was a code of conduct or procedures which governs all lower court judges, but that the Supremes were exempt. Isn't it just a matter of them being governed by the same rules that apply to other federal judges?

AndrewPrice said...

This is evidence of these justices not having a firm philosophical grasp. They are politicians in robes, not jurists. And I'm not surprised at all that she wouldn't see the obvious conflict.

LawHawkRFD said...

Tennessee: You are correct about the code of conduct. But except for the Supreme Court, there is always a higher court which can rule on the decision of the judge or justice to recuse or not. If a Supreme Court Justice simply flouts the rules, there is no current procedure for another court or any other body to discipline the Justice. The Supreme Court Justices under the current system are a rule unto themselves.

T-Rav said...

The C-Rama morning post: It prefers to be "fashionably late," as they say.

So I guess it's not that our judges refuse to use the Constitution as their guide in their rulings, they simply can't, because they don't understand it. That's....comforting?

LawHawkRFD said...

Andrew: I agree. But I would add that the "strict constructionist" Justices (four of them) are much less likely to make decisions and write opinions which are based more in politics than in law or the Constitution.

LawHawkRFD said...

T-Rav: Thanks for the excuse. I'll remember to use it the next time I get up late for my morning post.

You're right--very comforting (snark).

Tehachapi Tom said...

Hawk
Kagan's ethics come from the same source as bo's.

LawHawkRFD said...

Tehachapi Tom: No doubt.

T-Rav said...

I was just watching it and also trying to work on an assignment (and failing at both). I have very little legal experience beyond TV shows and one Criminal Justice class from five years ago, but it seemed even to me that the prosecutor was arguing the case rather than bail, which to me is a sign of having a weak case. And what about the question "After you committed this crime, did you express remorse to the officers?" Loaded question much? If the prosecution has to rely on logical fallacies at a bail hearing, I can't wait to see how the actual trial goes.

LawHawkRFD said...

T-Rav: For a layman, you have a pretty good understanding of how these things work. Though it's only a rule of thumb, when a prosecutor uses facts not yet in evidence, off-the-wall hypothetical questions, and speculation at a bail hearing there's generally a weakness in the prosecution's case.

StanH said...

Kagan is Barry’s pet. She will tow the liberal line, conflicts of interest be damned. The sad part, she could stink up the court for decades. I wonder why it is when Republicans appoint justices, many become liberal, but when liberals appoint justices they remain liberal or worse? This must change, and when a brilliant jurist like Bork’s name is put forth, we simply forge ahead, too hell with the liberals, and seat him or her.

LawHawkRFD said...

Stan: The Democrats always appoint liberals. Republicans appoint "moderates," which is just another word for "liberal-in-training." Bush II appointed solid conservatives, and they will remain so. But even he tried to slip Harriet Miers past us, and the conservative reaction to the appointment of that political crony and Washington insider was so strong that she was forced to withdraw her name from consideration.

Appointing moderates or pigs-in-a-poke with no real track record is a recipe for disaster. David Souter is only the most recent example of that under Bush I. The very worst example is Harry Blackmun, a Nixon appointee.

Joel Farnham said...

LawHawk,

On the basis of the evidence now in MEDIA court, what would it take to have Zimmerman found guilty?

I really don't think he is guilty of anything except trying to stay alive.

rlaWTX said...

Kagan - I try very hard to forget she exists.

T-Rav: "And what about the question 'After you committed this crime, did you express remorse to the officers?'" The prosecutor seriously asked Zimmerman that??? His response should have been, "Have you stopped beating your dog?" I realize lawyers are supposed to be tricky (because Law & Order says so!), but that's just bizarre.

LawHawkRFD said...

Joel: Given what we know now, and I'm not sure we've heard it all yet, the worst I see would be negligent homicide and that wasn't the charge. At this point, I don't see a conviction for murder of any sort. Unless there's something we don't know, and if the prosecutor doesn't amend the information to include the charge of negligent homicide, I don't think they can prove their case beyond a reasonable doubt. They must prove malice (legal malice, a very specific legal expression) to sustain a murder verdict, and I don't think they can do that. Again, I caution that I base that opinion entirely on what we know so far.

T-Rav said...

rla: Yes, he really said that, I'm afraid. And then in his closing remarks, he talked about how Zimmermann deserved to stay behind bars because of the "innocent young life that was lost," blah blah blah. Again, not relevant to a bond hearing. If this is anything remotely resembling a fair trial, and there isn't some secret evidence we don't know about, the prosecution is going to have egg on its face.

LawHawkRFD said...

rlaWTX: Forgetting she exists would be like ignoring the two ton elephant in the room. LOL

Everything I know about trial work I learned from Perry Mason. I always carried my briefcase and my bag of tricks into the courtroom. The L&O attorneys are rank amateurs.

Expressing remorse for a crime that the defendant does not believe he has committed is just an insane concept. Zimmerman has expressed his sorrow at Martin's death, and that's a sufficient answer.

T-Rav said...

Thank you, I'm here til Thursday! Try the veal!

(No, but seriously, the minute I read that line, I had to do it.)

LawHawkRFD said...

T-Rav: Is it free range veal? I wouldn't want to eat "unnatural" veal.

K said...

"David Souter is only the most recent example of that under Bush I"

Souter was suggested to Bush I by John Sununu - who now is a big Romney adviser. As far as keeping your constitutional rights intact, that would be like making Jimmy Carter's advisor on the Iranian hostage operation your military chief of staff.

Just sayin.

Joel Farnham said...

K,

Reagan's first adviser after his election was Richard M. Nixon. Just sayin'.

LawHawkRFD said...

K: You're right, but I seem to remember that Sununu later made some comment about having Souter figured out wrong. Still, that's the kind of mistake that haunts us for years. Let's hope he doesn't repeat his mistake.

LawHawkRFD said...

Joel: And we got Sandra Day O'Connor. As I've said before, even great Presidents are still human and make mistakes--their advisers among them.

Joel Farnham said...

LawHawk,

You missed my point entirely. Do you know what Nixon advised Reagan on? I don't remember, but I do remember at the time Nixon was so toxic that it had to be kept a secret.

John Sununu may be advising him on what didn't work in prior administrations and what did or he may be talking about what color drapes work. Do you know exactly what Sununu is there for? I don't. Just because someone is named an adviser, doesn't mean everything the adviser talks about the advisee takes to heart.

LawHawkRFD said...

Joel: Your'e right, but I didn't miss your point. I was just making a snarky remark, and it wasn't intended as an analysis of what Nixon advised Reagan on since I don't have a clue as to that. Ditto for Sununu's role in the Romney campaign. Reagan was his own man, so if he thought that advice given him was wrong, he just ignored it. Perfect example: Almost all his advisers told him not to use the "Mr. Gorbachev, tear down this wall" speech, but he did it anyway. I suspect there's some of that attitude in Romney even though we won't know with any certainty for awhile.

Joel Farnham said...

LawHawk,

O/T : I just read Galbraith's Sworn Affidavit and I can't help but think that is a joke of an affidavit. Is that normal?

Back O/T

Snarky? Really? I don't see it. Accurate yes.

LawHawkRFD said...

Joel: That's quite common. The affidavits are part of the "charging documents," and are quite often over the top. By their very nature, they only cite those things which favor the prosecution. The defense can object, but it's somewhat futile and lays out too much of the defense strategy for the future. Zimmerman's attorney knows that, and did just the minimum of what he needed to do to get reasonable bail at the bail hearing. The attorney is obviously very competent and always prepared. He knows his procedures and he knows his courts. I can't say the same for the prosecutor.

It is a rare thing for a defense attorney to put his client on the stand at a bail hearing. In this case, Zimmerman's attorney knew the prosecution hadn't prepared for that maneuver. Great tactic, and the prosecution's stumbling and bumbling cross-examination only reinforced the defense arguments for bail.

Joel Farnham said...

LawHawk,

If that is what the prosecutor has and there is no new information. I think that Zimmerman could in the end be able to sue the New Black Panthers, Rev Al Sharpton, and Rev Jessie Jackson for defamation of character. Until they got involved, Zimmerman was not a public person where most of this can be dismissed.

LawHawkRFD said...

Joel: That's logical, but I have to tell you that what is logical and even common sense is often not the course the law takes. Zimmerman would actually be more likely to prevail in an intentional infliction of emotional distress suit than in a defamation suit. As for the NBPs, they need to be criminally prosecuted. The loud-mouthed Congresswoman who claimed that Zimmerman "hunted Trayvon down like a dog" made the most defamatory statements of all, but she has immunity for what she says in the well of the House.

BTW: The prosecution's own witness/investigators contradicted themselves. They had maintained all along that Zimmerman was the aggressor, but now they say "we're not sure who initiated the fight." That's the heart of their murder case, and now it's been called into serious question.

This all fits into my current belief that the prosecution is in over its head, and the defense is prepared to poke all kinds of holes in the murder case.

EricP said...

Yet there are still people who think there's no difference in having to choose between Romney or Obama. To which I usually ask, "You really wanna spin that wheel when it comes to the inevitable Supreme Court vacancies in the next four years?" Now also using this column as exhibit "A." Well played, Lawhawk, and thank you!

LawHawkRFD said...

EricP: And thank you. I've mentioned in other posts that I was not a huge fan of Bush II, but given the alternative Democrats (twice) the Supreme Court nomination possibilities alone meant I had to vote for Bush. Gore? Kerry? Imagine the nominations they would have made. I think Romney is a clear choice on this issue, and I don't think he's as easily confused as W.

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