December 01, 2011
The Borking of Scalia

The entire legal structure, in an important sense, rests on irresponsibility. What is “precedent” but a passing of the buck? What is “originalism” but hiding behind the Founding Fathers?

Richard A. Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit and a Reagan appointee, is nobody’s idea of a liberal. But he is everybody’s idea of a thinker, as you can discover by reading his book, Overcoming Law.

In a brilliant chapter called “Bork and Beethoven,” here’s what Judge Posner has to say about the childish and ahistorical theory of orginalism with which Justices Roberts, Alito, Thomas and Scalia rationalize their prejudices:

Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach. The conservative libertarians whom Bork criticizes (Richard Epstein and Bernard Siegan) are originalists; his disagreement with them is not over method, but over result. The Dred Scott decision — to Bork, the very fount of modern judicial activism — is permeated by originalist rhetoric…

Some of the most activist judges, whether of the right or of the left, whether named Taney or Black, have been among the judges most drawn to the rhetoric of originalism. For it is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.



Posted by Jerome Doolittle at December 01, 2011 10:01 AM
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Originalism is a total fraud in that the people who founded this country could hardly agree on anything and were constantly bickering and fighting over how the new nation would be governed and there was no consensus then over what the law would or should be on most topics.

At the same time as this "originalism" was created and has arisen as a way to make law fit whatever the judge's political or corporatism ideology directed him or her, there has also been a rise in the desire to create ethical rules for lawyers and sometimes less so for judges, now referred to as "Legal Ethics" , which our Supreme Court seems not to be concerned with insofar as they themselves often have incredibly huge conflicts of interest that would cause any reasonable man to disqualify himself and yet they fail to see the huge plank in their eyes, while they are quick to point out the speck in others. We aren't however, dealing with reasonable men when we look at the upper echelond of judges in the legal system, most particularly the US Supreme Court.

As the old saying goes and still does "if the law say that, then the law is an ass". And it often is.

Posted by: Buck on December 1, 2011 3:47 PM

I'll go you one better, our entire legal system has become a fraud that is also bankrupting the country as much as the bankers. Our highest court ignores their highly touted ethical rules with impropriety after impropriety violating the canons of judicial ethics with impunity (see Clarence Thomas and wife). It is all cloaked in secrecy and lies and a media that refuses to investigate even the most obvious fraud and corruption by those in powerful positions unless it becomes so outrageous and public that it can no longer be hidden despite their best efforts.

The Atlanta Journal published a big article by Mr. Bill Rankin (so called journalist) just two days ago, "Big Judges Quake in the Face of Tiny Agency."

No bigger act of journalistic fraud has ever been committed. I contacted that same "little agency" (they keep it little for a reason and it isn't enforcing judicial ethics_ when I became aware of a judge breaking the law by practicing law in his own court (magistrate) and they completely blew me off by quoting the first sentence of a two sentence statute that read, magistrate judges may practice law. Magistrate judges are prohibited from practicing law in their own courts. I also found a judge in Gwinnett County, GA who violated defendant's right to due process and prevented them from being able to make a timely appeal by surreptitiously inserting court orders in the clerks case file then "finding" them later and having them dated when they should have been filed and served leaving defendents with no chanced of appeal because by the time they received the order the appeal deadline had already passed. It's all about money and only the 1% can afford to play in the corrupt system anyway all the rest that come in contact with it are just victims pure and simple. I could go on...and believe me I would like to but out of consideration I'll leave it there

Posted by: knowdoubt on December 2, 2011 5:54 AM

P.S. I would be willing to bet "the farm" that the article published by Mr. Rankin, a not so great investigative reporter, was a press release by the "little agency" printed verbatum by the media mouthpiece of the rich and powerful, "The Atlanta Journal".

Posted by: knowdoubt on December 2, 2011 6:24 AM

When I was in law school I had a Professor named John Freeman who told us that RICO was going to be used more and more against corporate offenders. And for a while that was the case.

He also told us that legal ethics were going to be something that we had better be very careful about and now the State of South Carolina has a vigorous system of investigating unethical acts by lawyers, although the only judges that seem to get caught in the system are low level magistrates, but they are disciplined or removed from the bench there. (Magistrates are allowed to practice law there though, although they have to avoid conflicts of interest). But to give you an idea how active they are, scroll through these opinions and look at all the "In the matter of John Doe" cases that come up. These are just the public reprimands. There are a whole host of private reprimands that don't result in Supreme Court opinions. But they seem to cover more ethics cases than anything else. So there is some policing of the legal system in some places.

Professor Freeman is scrupulous about ethics and has been extremely active in advocating strong oversight of mutual funds and other investments. Just a few years ago he testified to Congress about the abuses at mutual funds. But he hit a bullseye with his predictions about RICO and legal ethics, at least in SC.

Posted by: Buck on December 2, 2011 9:48 AM

That would be encouraging, but if it is corrupt at the top, i.e., SCOTUS, then it is understandably difficult for lower courts to rise above that. That is one of the rubs. The other rub is who defines a conflict of interest or enforces the rules - for SCOTUS that would be no one and please don't suggest impeachment as a viable alternative. The Judicial Qualifications Commission of Georgia first hides behind a cloak of complete darkness, see their complaint form here,

and if you read item five (V) you will see they claim that by making a complaint you are bound by some confidentiality requirement not to talk about it under threat of Contempt of the Supreme Court of Georgia,

"In filing this complaint, I understand that:
 The Commission’s rules provide that all proceedings of the Commission, including complaints filed with the Commission, shall be kept confidential, until this complaint has been resolved.
 I further understand that this rule of confidentiality attaches and
becomes effective upon the filing of this complaint and that any violationcould result in a citation for contempt of the Supreme Court.
 The Commission may find it necessary to disclose my identity and the existence of this complaint to the involved judge. By filing this
complaint I expressly consent to any such disclosure."

Their records of complaints are held in complete confidence and shielded from any review by citizens or any one else. There is no way to find out who has been complained about, by whom or how often. The only cases they pursue are those that can't be swept under the rug. The small number of cases acted on over the years cited in the article plus the idea that "powerful Judges" would be cowed by such a "small office" with almost no budget is ludicrous. If the Judicial Community in Georgia thought ethics was important in a judge they would properly fund the office and open it up to daylight which is proven to best serve and preserve a democracy. Judges aren't really people, they can't possible be suspected of being vindictive, I'm sure no complainant would have any objection or worry over their identity being divulged to the judge they've complained about. Talk about knowing how to squelch complaints... Sheesh. But hey, it is good to hear that things might be better somewhere but generally I fear the corruption is more pervasive than one might suspect and the devil is always in the details.

Posted by: knowdoubt on December 2, 2011 10:55 AM

I'll agree that there are problems in every legal system in the country. Here in Pennsylvania we had Pennsylvania judges who were sentencing juveniles, many who had done nothing that should have caused them to be hauled into court. The judges knowingly sent juveniles to privately owned youth detention facilities and were getting kickbacks or bribes from the owners of the detention facilities. The amazing thing is that none of the lawyers, people in the courthouse, public defenders or other people who must have known about the extent and nature of these judges except the parents bothered to complain. And it took to long for anything to happen to them. The outcry became overwhelming and couldn't be ignored anymore.

I know about how judges can create a climate of fear in lawyers and court personnel by using their judicial power to throw their weight around and threaten directly or indirectly persons who know about their misbehavior and that can be terribly intimidating.
Here's short story about those judges and what eventually happened to them from NPR (one got a 28 year sentence):

But it takes whistle blowers to step up to the plate and make the problems known. And we already know from previous posts here on
Bad Attitudes that whistle blowers are usually thrown under the bus and it doesn't matter whether they were reporting something atrocious or something minor. If enough people could get over their fear of retaliation we could see major changes in this country. I do agree with you that the Supreme Court is a major problem as they have no one to oversee them and many regard the current Court as the worst in US history. They probably believed that in previous times as well. However, with the rise of the internet, things are getting out now although even the Julian Assanges of this world aren't free from retaliatory actions of those in positions of power even though they expose corruption in high places that should be swiftly resolved, perhaps in the Chinese fashion of dealing with corrupt public officials.

Posted by: Buck on December 2, 2011 1:39 PM

Thank you, I get so tired of people defending the indefensible usually because they have a vested interest. I mean if a person has worked in a profession al his life and done well by it then it would be very hard to admit on the downhill side of life how broken that system really is. I'm not saying you're over fifty or whatever, still it is hard to do.

Posted by: knowdoubt on December 2, 2011 5:20 PM
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