Archive for May, 2011

Federal Judges

May 27, 2011

Federal judges have a pretty good work life. They work in great majestic rooms and when they enter and leave those rooms, everybody stands up. They can only be fired by the United States Senate and, unless they get caught taking a bribe, that hardly ever happens. Their pay can never be cut. If they decide to retire, they can take “senior status” and make almost as much money as if they were still working every day. They get the best health care possible, United States Marshals for protection, law clerks for the drudge work of judging, and big offices, all paid for by somebody else.

But if you go to watch them at work, you’ll often be left with the distinct impression that these people are not happy. So, you may ask, why not?

Well, until you reach the august realm of the U.S. Supreme Court, federal judges are basically overworked. They handle large caseloads in an increasingly bureaucratized system. They must deal with lawyers, too many of whom are less than ideally competent. And, like bankers who spend their days saying “no”, federal judges spend a lot of time saying “no” to litigants in their courtrooms and putting other people in jail. Often, the judges might have preferred saying “yes” to litigants but couldn’t because of the controlling law. Worse, judges know that they will always make someone unhappy every time they make a ruling. It’s the nature of the adversary system. All that wears on them. They’re only human after all. Most probably suspect that Tacitus was right:

Judges are best in the beginning; they deteriorate as time passes.

Walton's Cottage in 1888

I’m not completely objective you understand. I spend my career trying to change the status quo and the judiciary is the first line of defense for the status quo. By design and by nature the judiciary is the most conservative of our governing institutions and – especially since Ronald Reagan – the federal judiciary has been populated mainly by judges personally conservative both by design and by nature. Often they don’t like attempts to change the status quo. Still, I find many violate the great fisherman Izaak Walton’s injunction in his The Compleat Angler,

If thou be a severe, sour-complexioned man, then I disallow thee to be a competent judge.

I once found a federal judge on a catch and release fly-fishing stream. This stunned me. It was the first time I’d ever seen a federal judge engaging in a harmless activity. It disordered my mind and for some weeks I felt unbalanced, like I’d seen a ghost gibbering in the streets. I watched the apparition for a while, studying the thing in my mind.

I’d been a trial lawyer for a couple of decades by then and had learned that no evidence is less reliable than eyewitness testimony. Our eyes fool us all the time so I knew that they might be fooling me now. The first thing I did was get out my camera and take a picture of the thing. But, upon reflection, I realized that any apparition capable of assuming the form of a fly-fishing federal judge could easily rearrange the pixels in my camera so I couldn’t trust any photographic evidence.

I determined to go down there and confront the thing up close. I don’t claim that I wasn’t terrified as I walked down that slope to the river: I was, but I went down there anyway, expecting at any moment to be swallowed by a wormhole and instantly transported to some place on the far side of the universe.

But nothing happened. I walked right up to that federal judge apparition and it spoke to me! Called me by my name. Shook my hand. Asked how the fishing had been for me. Wanted to know what fly I was using.

Even smiled once.

So I knew it wasn’t real. I got out of there as fast as I could.


Bob Dylan and the Law

May 24, 2011

Dylan - Photo Coutesy of Alberto Cabello

Today is Bob Dylan’s birthday. He is seventy (70) today. Millions of people will no doubt take note. Hundreds of bloggers too will hop on the bandwagon. Much real and electronic ink will be spilled today and why should this blog be any different?

I’ll just tell you that Dylan’s lyrics are cited in legal opinions and scholarly legal articles far more than anyone else. Almost three times more than his closest rival, the Beatles. By the end of 2007 his lyrics had been cited 186 times.

Not bad for a humble folk-singer.

The Rapture and Garage Sales

May 21, 2011

According to some Christians, today is The Rapture so we’re having a garage sale at our house. I wonder exactly what time the Rapture arrives? I plan to spend the day standing next to wealthy Christian men about my size. That way, I can just pick up their wallets and clothes.

Jury Verdicts

May 18, 2011

Former Alabama governor Don Siegelman was convicted of various offenses committed during his governorship of Alabama. His case achieved notoriety beyond Alabama because of allegations that the prosecution of the governor was motivated and perhaps engineered from Karl Rove’s White House office. Siegelman’s case has already made one trip to the United States Supreme Court which sent it back to the Circuit Court. That court recently affirmed – again – the conviction.

That court, in affirming, explained the role of judges and juries in our system with some eloquence. Here is what the judges said:

But [the case] has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama were asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. [sic.] Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
Furthermore, to the extent that the verdict rests upon the jury’s evaluations of the credibility of individual witnesses, and the reasonable inferences to be drawn from that testimony, we owe deference to those decisions. In our system, the jury decides what the facts are, by listening to the witnesses and making judgments about whom to believe. This they have done, and, though invited to do so, we shall not substitute our judgment for theirs.

That is as good a summary of the role of juries in our judicial system as I’ve seen for a while.

Hawaii’s Weather

May 15, 2011

A friend is visiting Hawaii. She sent me this weather forecast which, I expect you’ll agree, is more imaginative than most local weather forecasts. (You’ll have to click twice to get to the YouTube page where this forecast lives.)

The Doppler Effect

May 13, 2011

Here’s a bumper sticker seen by someone and recorded for posterity:


May 9, 2011

Both readers of this blog have no doubt noticed the paucity of posts – I say “paucity of posts” because it alliterates so nicely – since the summer.

It is the usual custom of bloggers, unpaid and under-appreciated, to nonetheless apologize for long absences from blogging. I suppose this practice results from bloggers’ mistaken idea that anyone cares.  Bloggers seldom read what Judge Alex Kozinski of the United States Ninth Circuit Court of Appeals has to say about bloggers:

I just think it’s so self-indulgent, you know. Oh, I’m so proud of what I’m saying, I think the world instantly wants to know what I’m thinking today. People wake up thinking, hmm, what does this person, whoever the blog, the question is — I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can’t really have breakfast, really enjoy my day until I hear the great thoughts of Howard Bashman — I don’t think so. I go for months without ever knowing what Howard has to say. So I don’t know. I find it sort of self-indulgent. And I find it so grandiloquent.

Well, to Judge Kozinski I say “Nuts!” He already has a writing platform  – judicial  opinions – and a captive audience – lawyers who have to read them. Not all of us can be federal judges and so have to slog onward, out here in the wilderness of the internet where even the USGS has yet to publish an accurate map.

Nor can he accuse me of being grandiloquent. However, you may have noted that my hiatus from blogging has corresponded almost exactly with the finding and hunting and killing of Osama bin Laden. Coincidence? You decide. I couldn’t possibly comment.