I'll have much more to say about this 58-page opinion later. The case is a boil. If you want to see true judicial activism, you should read it. Unlike the Newdow case, where reasonable minds could differ, the District Court's actions - and the three-monkey-conduct of a majority of the panel - is wicked, raw, judicial power. The trial court's actions, and the panel's conclusion, rely not on reason, or on authority, but on naked power. No one can stop them, and therefore they will do it. I know the name of the trial court who is the subject of these proceedings. The panel keeps his name secret. If you want to know more about the subject of this case, check out this article.
Kozinski's dissent is brilliant, and much more tempered than anything I'm capable of currently writing.
A recent ABA survey shows that more than half of Americans disapprove of the jobs judges are doing. Those polled frequently mentioned "judicial activism" as a major problem. But according to the ABA Journal eReport article, the results were not wholly surprising.
The survey results did not surprise a prominent constitutional law scholar. The survey results reflect the reality that "there is a lot of judicial activism under any definition," says John O. McGinnis, a professor at Northwestern University School of Law in Chicago.
One scholar with an alternative viewpoint was surprised with the extent of dissatisfaction shown toward the judiciary. "These are surprisingly large numbers," says Mark V. Tushnet, a constitutional law professor at Georgetown University Law Center in Washington, D.C.
Same quotes, different spin. Read Orin Kerr's post for context.
Good morning, America. I am your new chief justice. If fate is kind, I'll preside over defining conflicts for the next thirty or so years. And I need never to worry about looking for work again. I am as close to a philosopher king as American yields. Oh, tenured professors have a pulpit, but they cannot issue orders.
I promised you in the confirmation hearings that I well understood the distinction between law and politics. I will decide cases according to law, not partisan principle. Will you -- can you -- forgive that subtle deception?
I am not really so naive as to believe that the law is science. There is no over-arching conception of justice which, if seen, places all things aright. "Right reason" is a conceit of the Thomists. I have read my David Hume and understand well that reasons is, and always was, the slave of the passions.
Even so, I do believe that judging is different than mere advocacy. I believe that a judge can weigh the merits of conflicting claims, locate legal principles and then balance the interests reflected in those principles. This is what I will do. This is what all judges and justices do.
I am not a legal realist. I do not consult my appetites and then satisfy my own personal hunger when I rule. I strive to decide cases based on the broad principles and vision of our founders, of Congress and the ethos of the the Constitution as evolved. That is a task that falls to me and requires my candid confrontation of my own values.
So what happens in a close case, a case in which the equities and arguments lead in no particular direction? Do I disregard myself in those moments so as to be true to my pledge to put my feelings aside? In that case I am nothing.
No, what is required in such a case is that I decide a case based on the best vision of justice I can muster, and I can only see clearly by acknowledging where I stand. Like Luther at Wittenberg Castle I will say "Here I stand."
Of course, I refused to answer many questions on where I stand before the Senate. That is the custom in such hearings. All I can promise is that you will learn my views in the hard cases in hard years to come. I will do the best I can, seeking to build a granite edifice while laboring with feet of clay.
First year law students wrestle with this hypothetical: Wife is at home sleeping. It's dark. She hears someone come in. She thinks it's her husband. She says, "Husband, I've been waiting here all night for you. Let's have sex." After they have sex, wife learns that "husband" was really an intruder. Rape requires noncensual sex. Has wife consented to sex with the intruder? This hypothetical has come to life in the land of coffee.
Charles Momah is a Seattle gynecologist. His brother, Dennis Momah, is a general practicioner. They are identical twins. Supposedly Charles was having consensual sex with some of his patients. He supposedly decided to share the love with his brother. They didn't tell the patients. And so some patients who thought they were consenting to sex with Charles were actually
consenting to having sex with Dennis.
UPDATE: There is excellent coverage at the website that shows up at the #1 hit for "Dennis Momah." I'm not linking to the site, though, since some of the images lack, well, coverage. Some of you read me from work, though, so you'll have to find the link yourself.
I had two bank accounts to keep certain funds segregated - accounts A (active) and NI (now inactive). Months (maybe even a year) ago I closed account NI. Last week I opened a statement indicating that account A had been assessed fees because account I had been overdrawn. How could a closed account be overdrawn? The bank never closed account NI.
Thus, because I didn't put any money into account NI, it lacked the funds to pay the $8/month account fee. Because my account became overdrawn when they charged me fees on the closed account, I was charged more fees! So not only did they wrongfully charge me account-maintenance fees, they also charged me overdraft fees.
How did I learn this? I noticed a peculiar charge to my account for $17. Upon investigation, I learned that they had been debiting my active account $10 or so dollars a month for the last eight months. A ten-dollar transaction is enough to fly below my radar, so I hadn't noticed the previous charges. When they charged me $17, they screwed up, since $17 is big money to me.
Being a reasonable guy, I appealed to reason, and wrote:
Why have I been charged for this: DR-RIGHT OF SETOFF TO ACCT XXXXXXX $17.00
I received a notice in the mail indicating that another account was overdrawn. What other account? I only have one account (my checking account). A LONG time ago I had an additional account ("The Wedding Account"), but I closed that one a very long time ago. Looking at my history, I see this charge has been assessed previously. Why? How can I be overdrawn on an account that does not exist?
A "Right of Setoff" transaction occurs when the bank withdraws funds from one of your accounts to cover a negative balance on another of your accounts. On 09/19/05, we transferred funds from account number XXXXX to offset the overdraft in your account number XXXX.
When I told them,
I closed the wedding account almost a year ago. When I log into [Bank], the account doesn't show up. That's why I don't understand these offet fees. I closed the wedding account already. I behaved as if the account was closed. I neither deposited nor withdrew money.
Why would I keep open an account without any money in it? It doesn't make any sense. So, I would like the funds that were wrongly taken from my account to offet a negative balance in the non-existent account as soon as possible. It's not fair that although I closed the account months ago, I've been charged because someone at the bank messed up and left it open.
Screw off, they told me. So I replied:
First, I closed the account a long time ago. Indeed, when I log into [Bank], only one account shows up on the screen. I behaved as if I only had one account. I never transferred or deposited any money into it. I'm sure this has happened to many others, and I'm prepared to file a class action.
They played the tort reformer's card:
It was your responsibility to pay attention to the many statements that have been mailed to you.
Got that? When a bank steals from my account, it's my fault for not noticing. I should just take personal responsibility and eat the bank's fees. Wow.
Empirical evidence nationwide makes clear the danger of false identification in criminal cases. Our courts have been slow to respond. Those accused of crime, even wrongly accused, garner little sympathy.
The Connecticut Supreme Court recently broke ranks with courts refusing realitistically to deal with suggestive identification. In State v. Ledbetter, SC 17307, the Court ordered trial courts henceforth to give juries a new charge on the dangers of suggestive identification. The ruling is one half of a step in the right direction.
Consider the all too common practice among law enforcement officers. A victim is shown a group of individuals and asked whether the perpetrator is present: this procedure can be in the form of a photo array, a lineup or a show up. Many victims assume the perp must be present: why else would law enforcement officers go through the effort of organizing the event? So someone gets picked, whether guilty of not.
Using its inherent supervisory authority over the trial courts, the Connecticut Supreme Court now requires trial judges to give the following instruction when law enforcement officers fail to tell the victim that the perpetrator may not, in fact, be present among those assembled for a view.
"In this case, the state has presented evidence that an eyewitness identified the defendant in connection with the crime charged. That identification was the result of an identification procedure in which the individual conducting the procedure either indicated to the witness that a suspect was present in the procedure or failed to warn the witness that the perpetrator may or may not be in the procedure.
"Psychological studies have shown that indicating to a witness that a suspect is present in an identification procedure or failing to warn the witness that the perpetrator may or may not be in the procedure increases the likelihood that the witness will select one of the individuals in the procedure, even when the perpetrator is not present. Thus, such behavior on the part of the procedure administrator tends to increase the probability of misidentification.
"This information is not intended to direct you to give more or less weight to the eyewitness identification evidence offered by the state. It is your duty to determine whethter that evidence is to be believed. You may, however, take into account the results of the psychological studies. as just explained to you, in making that determination."
I grade the decision a solid "B" for moving in the right direction, a "D" for lucidity and style, and an "F" for crafting a truly effective remedy. Persons subject to custodial interrogation must be advised of the right to counsel if the state wants to use their statement. Failure to advise yields suppression. Why not the same rule for failure to warn a witness a perpetrator may or may not be present at an identification?
Instead we get turgid half-measures and references to studies not in evidence. So much for protecting the rights of the accused and requiring the jury to decide the case based only on the evidence before them. Instructing juries about the results of scientific studies is simply foolish. Read it and Sleep
Having read the complete dialogues of Plato, I loved the Socratic method. In law school, professors supposedly used the Socratic method. It seemed that law professors, unlike Socrates, did not try to bring the students to the truth, or to show them that no rule could be crafted to cover every situation,* but rather, to confuse them. I often wondered whether those using the Socratic method had ever read Socrates. Anyhow, the resulting confusion was not deliberate. Rather, many law professors in the past 40 years, haven't been properly using the Socratic method. Details here.
* The beauty of the common law is that judges expand (or contract) a rule based on changing facts and new technologies. This libertarian is a judicial conservative because I have never seen, in law or philosophy, a Rule of Everything. Judges apply and modify rules when circumstances change. Given that I'm a judicial conservative, I care very much about judicial selection and judicial process, since we must have judges who will apply existing law in good faith. A cruel judge will disregard clearly-established precent to reach his or her desired results. (I'm being vague, since I'm not about to call out, by name, certain judges on the Fourth, Fifth and Ninth Circuits who refuse to apply the Fourth Amendment.)
On an unrelated note, my judicial conservatism is why I enjoy reading lower-court opinions more so than Supreme Court opinions. The Supreme Court states broad proclomations (Rules of Everything, that frequently, are meaningless). The Supreme Court then runs-and-hides, as evidenced by the confusion regarding Crawford v. Washington and United States v. Booker. The real action is in the lower-courts.
In U.S. v. Dawson, No. 04-2557, federal agents and an informant agreed that in exchange for cooperation (which included testimony), the informant would take 20% of any forfeitted money. Since most cases plead out, the government informant would usually obtain his cut off the action without having to testify. But in Dawson, the case went to trial. And thus, the informant had to testify in order to obtain his fee. Paying a witness to testify is a felony. Posner agreed with this:
And the defendants are right to point out that paying witnesses (other than experts) for their testimony (beyond the tiny fees permitted, in the case of federal trials, by the Judicial Code, 28 U.S.C. § 1821) is forbidden. 18 U.S.C. § 201(c)(2). Even an expert witness, and a fortiori an occurrence witness, may not be paid more if the party for whom he is testifying wins the case.
Should government officials be able to commit a felony by putting the informant on the stand? Look how Posner characterizes the federal law:
Yet whether violation even of that rule requires exclusion of the testimony from being used against a defendant is a separate question.
Title 18 U.S.C. § 201(c)(2) is not just a rule: it's a federal criminal law, carrying with its violation felony penalties. Shouldn't trial courts, under their supervisory powers, prevent felonies from taking place in their courtrooms? Posner continues:
Exclusion confers windfalls on the guilty and therefore, at least as a device for enforcing nonconstitutional rules, is disfavored.
But if government agents are violating a federal criminal law, aren't they guilty? Doesn't allowing them to admit illegally-obtained evidence confer a windfall upon those criminals? Doesn't it cheapen the judicial process to require judges to sit on their hands while felonies are committed in their courtrooms? Posner ducks those questions, and then dresses up his unwillingness to enforce the law as a matter of separation of powers:
Judges are in no position to evaluate the government’s need to offer monetary or other inducements to the criminals whom it hopes to enlist in the "war against drugs."
No, but judges are in a position to determine whether the government, by paying a witness for his testimony, is violating the law. Judges are in a position to ensure to preempt felonious conduct. This is yet another application of this maxim: The government may break the laws to enforce them.