Wednesday, December 14, 2005

Pontius Pilate: Doomed by the Marriage of the Executive and Judicial

In his Divine Comedy, Dante locates the Roman governor, Pontius Pilate, just inside the gates of hell, condemned forever merely for his cowardice. In the Biblical accounts, Pilate repeatedly argues that Jesus is innocent, or if guilty of anything, he nevertheless does not deserve death. In reading my Chronological Bible--a fascinating way to read the Bible--I noted the following:

1. Four times Pilate insists that he can find no basis for a charge against Jesus (once for each gospel).
2. Two times Pilate argues that Jesus has done nothing to deserve death.
3. Two times he asks, "Why? What crime has he committed?"
4. Once even his wife appears and begs Pilate to "have nothing to do with this just man."
5. Twice the writers note that, "Pilate knew it was out of envy that the chief priests handed Jesus over to him."
6. But Pilate wanted to satisfy the crowd. When he saw that an uproar was starting and "with loud shouts they insistently demanded that Jesus be crucified, . . . their shouts prevailed."
7. John notes that Pilate was afraid, "and was even more afraid."
8. Finally, Pilate washes his hands and declares, "I am innocent of the blood of this just man." Then he sends Jesus to be crucified.

Fourteen pieces of evidence support the claim that Pilate believed Jesus to be innocent. The only evidence Pilate found Jesus guilty is the crucifixion itself. Given the context, it cannot reasonably be argued Pilate found any guilt in Jesus. He was afraid of the people, afraid of an uproar. He was afraid of what would happen if he did the right thing.

Pilate's was the kind of miscarriage of justice that can occur when judges become politicians. Our legal system, one light years ahead of that of Rome, however sentimental people may be about the system that gave us the Caesars, has a number of safeguards built in to prevent judges from playing dual roles. A judge should be able to execute justice and follow the law with no fear of political reprisals.

In more practical terms, this is another reason why (1) federal judges are not elected, (2) why nominees for the federal bench are not to be quizzed about political issues that may come before them (i.e., why they're not asked political questions), and (3) why the federal courts, especially the highest court, maintain a "cult of silence," keeping much of their daily activity quiet, and working hard to prevent justices from becoming celebrities.

The title above speaks of the marriage of the executive and judicial. In other words, Pilate was unable to render justice because his power as judge was a threat to his power as executive. Pilate had a separation of powers problem. And even with all our checks and balances, our system can create similar problems, such as the 176 pardons issued on his last day in office by President Clinton. It was not his inability to judge rightly that caused the lame duck to pardon so many rich criminals, but his love of executive power and his interest in donations to causes that would promote that power and keep its legacy alive, particularly the Presidential library.

Friday, December 09, 2005

Beware the "Living Document"

Another blogger posted some great material from that most unlikely source of greatness, the Ninth Circuit:

The mere fact that the living constitutionalists of recent memory devoted themselves to an expansion of rights offers no guarantee that the next generation of living constitutionalists -- similarly unconstrained by the inconveniences of constitutional text and history -- will be favorably disposed to maintaining such an expansion of rights.

You can read more by clicking here.

Tuesday, December 06, 2005

Humanizing the Rule of Law: a Judge's Discretion.

Lawsuits do not follow the scientific method. The system promotes justice, not actual truth. Juries (when they are used) are the Finders of Fact, and make all determinations about the facts of a case. With minimal oversight, jurors determine what happened. Judges answer Questions of Law, including jurisdiction, limitations, what laws apply and how to apply them. Questions of law can be reversed on appeal--they usually won't be, but you've got a shot. The same goes for a third set of determinations, those based on the judge's discretion. But when a judge uses his discretion, the standard of appeal is high. The appellant must prove the judge abused his discretion, a tough standard indeed.

But why does a judge have any discretion? What if we just applied the law the same way in every case? (Or do we already?) The answer is, Discretion is necessary because it allows for the infinite permutations in the facts of various cases. Things just do not work out the same way every time. As important as respect for the rule of law is, judges have to be allowed discretion in many matters. To illustrate, I thought rather than cite a boring ol' lawsuit, I'd tell a personal story--perhaps you will agree it is a situation in which discretion might have produced a better result....

Sunday, December 04, 2005

Open Letter to the King of Torts.

Throwing out old papers, I ran across a letter from the King of Torts, Joe Jamail. Jamail, who made a name for himself when he won the largest verdict in history, 11 billion dollars in the case of Texaco v. Pennzoil, had sent me (and several thousand of my Texas colleagues) a letter about the election of judges. Jamail asked us to join his efforts to change the rules governing the election of judges in Texas. He wanted a system in which judges would be appointed rather than elected. To me, that spelled corruption. But I was wrong.

A greater corruption is bred by the election of judges. Sure, the people have a voice. But the nature of politics corrupts the system.

1) Judges end up asking themselves how their rulings might affect their reelection.
2) Judges have to choose a party. In Texas many are now affectionately called "RINOS," or Republicans In Name Only, because they obviously switched parties only to keep their jobs.
3) Having to be reelected means having to raise money for a campaign--lots and lots of money. And where does that money come from? Law firms, of course. I'm involved in a number of lawsuits filed in an East Texas County, and it's never good for the defendants. In fact, defense attorneys usually walk out of hearings shaking their heads, marveling at inexplicable rulings. It often seems the judge is not even listening to the defense position. And everyone gathered at the elevator wonders aloud whether it might actually be true--could Judge M______ actually be "bought and paid for" by the rich plaintiffs' firm that funds his reelection? (And that's not to say defense firms don't donate as well and for the same reasons.) Once litigants offered judges bribes. Today their attorneys handle all that with campaign funds. Is bribe too strong a word? Call it quid pro quo--you scratch my back, I'll look out for you in all your cases next year.

The election of judges breeds corruption. Joe Jamail was right.

Saturday, December 03, 2005

Of Lawyer Jokes, Lawyer Ads, & Lawyers as Pit Bulls

I stumbled across an interesting story here. A Florida law firm used pit bulls in a television ad, including their phone number, 1-800-PIT BULL. What do you think, savvy advertising or the debasing of a noble profession? Both? A Florida judge ordered the firm to pull the ads. (Some of us would like to see all lawyer ads pulled.) Lawyers are encouraged to be "zealous advocates." A pit bull is certainly zealous. But with the regular reports of pit bulls mauling and killing children and old ladies, the comparison is monstrous. Give me a shark any day.

One interesting comment on Cliff's blog: "Lawyers themselves do more to shake the public's trust in lawyers than anyone else associated with the legal system." I would say only that lawyers do more than everyone else except those former lawyers now known as judges. Judges today often fail to police the docket and throw out frivolous cases that harass so many innocent parties needlessly. Today judges generally allow parties to pursue motions and causes of action that waste extraordinary amounts of time and money. And lawyers, being zealous, will always do all that they can on behalf of their clients. Many would argue that's their job, even duty. It's up to the judges to hem them in. Sure, the attorneys are responsible. But it's hard not to pursue every conceivable tactic on behalf of your client. What if the argument that is a stretch is the one that wins it? So, it's up to the judges to put boundaries around all this. To often, they fail to do so.

What about lawyer jokes? I like them as much as anyone else--maybe more so. I just don't believe they apply to me, you know? :-) But my favorite jokes are the New Yorker cartoons. If you can't see it, the caption above reads: The ones just out of law school are especially frolicsome.

Thursday, December 01, 2005

Thomas: Judiciary Held Hostage by Abortion

Abortion is holding hostage the judicial confirmation process, according to Justice Clarence Thomas. Thomas spoke on these and other issues recently at the University of Alabama.

"I think we all should be honest with one another that the only issue, the central issue in all of this, is abortion," Thomas said, according to the Associated Press. "It's not the other things that people throw out. The whole judiciary now is being held, in a sense, hostage to that one issue."

Thomas said some of his former clerks and other lawyers frequently say they are uninterested in being federal judges because of their dread of possible confirmation fights. "I think that's a problem when the stars are beginning to say, 'Thank you, but no thanks,'" said Thomas, who was confirmed by only a 52-48 Senate vote in 1991.

The current system of seeking to investigate every part of a nominee's life should be changed, Thomas said. "The whole process of trying to ferret out the personal agenda through the confirmation process isn't an endeavor that I think is worth the price we are paying," he said. "I think the only thing it does is rats out the agenda of the people asking the questions."

The above is from Richard Land's summary. But the UA website has a little more info. Thomas compared judges to referees (an excellent analogy), and said senators want 'referees' who will call things in favor of their special interests. "If Crimson Tide fans could vote for referees, they would vote for ones who have never made a call against Alabama, no matter whether their calls were correct. In the same way, the Senate is voting for people who make decisions for or against their interests, instead of deciding whether they are capable of interpreting the law."

More interesting, Thomas said there is no reason to fear judicial activism and that he has never seen a Supreme Court Justice press a personal agenda. I respectfully dissent. Whether you call it activism or the pressing of a personal agenda, judges in numerous federal and state courts have made odd decisions in recent years, decisions that cannot be traced to anything in the Constitution (most of these apply only in limited jurisdictions): The Pledge of Allegiance is unconstitutional, children cannot wear clothing in a public school if the name of Jesus is on it, teachers cannot have a Bible on their desks, private schools can teach public school students about religion during school hours, as long as it happens on private school property, and private schools can borrow public school maps, but can't borrow public school textbooks, the government can take property for any conceivable public good, abortion is a fundamental right, etcetera, etcetera, etcetera.

Finally, the UA Website has more. Judge Roy Moore recently appeared, saying the role of government is to recognize God. (Call me cynical, but somehow I don't see Moore being confirmed by the Senate, where he to be nominated! Nevertheless, he cites persuasive material from the nation's founders.) So why the big-name speakers at the Alabama law school? Well, it's "up and coming" or so I was told by a UH professor. Her comments helped me choose Bama as the publisher of my last law review article, though others were interested.... (The link is just a contents page. Don't bother. Were you a physician-owner of an MRI clinic, you might wish to read the article here. Otherwise, click here for your next stop.) (I can't believe I plugged my own work twice this week! Sorry.)