Judges Behaving Badly (3): Chief Judge Dennis Jacobs Attacks Civil Libertarians and Lawyers Before Second Circuit

We recently discussed the shocking outburst by conservative judges on the Seventh Circuit and Fifth Circuits. Now, a judge on the United States Court of Appeals for the Second Circuit has joined the ranks of jurists engaging in visceral and, in my view, inappropriate commentary from the bench. The circuit sitting en banc split 6-6 Wednesday on whether to grant en banc review on a challenge of the federal wiretap law. What was most striking, however, was not the sharp division but the rhetoric of Chief Judge Dennis Jacobs. Building on a trend of federal judges to so narrow standing as to block any meaningful avenue to challenge government actions. However, Jacobs decided to vent his anger at public interest attorneys and their causes and clients.

Following its long-standing approach in the courts, the Obama Administration is fighting against public interest organizations seeking to show the government violated the law and denied protected privacy to citizens. It appealed a decision by the panel to allow these citizens to be heard — the latest opposition of President Obama to core civil liberty claims.

Judge Gerard Lynch, who favored standing, offer a measured account of how “the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.”

Instead of sticking with such profound and important questions, Chief Judge Dennis Jacobs decided to take a more personal and mocking approach: “As best I can see,” he wrote, “the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.” He then analogized the lawsuit to a “plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.” For good reason, no other judge joined Jacobs’ inflammatory opinion.

There are substantive portions to Jacobs’ opinion, but it is degraded by such rhetoric.

This is not the first controversy for Jacobs who was put on the bench in 1992 by President George H. W. Bush. Jacobs in one of those jurists (criticized in prior columns) who seem to relish speaking before ideological groups and discussing matters that are either before his court or likely to come before him. For example, on November 19, 2010, he delivered a speech titled “National Security & The Constitution” before a gathering of the Federalist Society at the Mayflower Hotel in Washington where he criticized courts for their rulings against national security agencies and lawyers who distrust the military. What concerns me with these types of speeches is that judges can feel that they have to maintain “their base” and play to the ideological appeal of reckless rhetoric and posturing from the bench.

He was criticized for saying in one case that he refused to even read the majority opinion before filing a dissent as a sign of contempt for his fellow judges. He simply noted “I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.”

While judges are quick to sanction lawyers for bad behavior, they clearly find it more difficult to deal with jurists like Jones and Jacobs. Civility is an important value in our courts and these judges undermine the judiciary with such inflammatory and unprofessional commentary.

Here is the opinion, which will leave the panel decision unchanged: 09-4112_complete_enbanc_opn

Source: ABA Journal and New York Times

Jonathan Turley

16 thoughts on “Judges Behaving Badly (3): Chief Judge Dennis Jacobs Attacks Civil Libertarians and Lawyers Before Second Circuit

  1. Judicial appointment means that the judge doesn’t have to worry about making an unpopular decision based on the law. Unlike an elected official who has to worry about the political fallout of his decision.

    Judicial election means that a judge that becomes overly politicized can be removed if they allow their bias to color their judgments. Unlike appointed officials they’re not able to freely insert their personal politics into their decisions without the threat of being removed.

    Over simplification I know, but both systems really suck.

  2. “Chief Judge Dennis Jacobs decided to take a more personal and mocking approach: “As best I can see,” he wrote, “the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.” He then analogized the lawsuit to a “plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.” For good reason, no other judge joined Jacobs’ inflammatory opinion.”

    You don’t say…..The Bush legacy continues in its substantiated stupidity….

  3. The defenders of Corporate license and denial of the rights of ordinary citizens have very smartly packed our courts with their defenders. These appointments are far more important than who gets elected, since we rely on the judiciary to keep the Executive and Legislative branches from overstepping their roles. That was what was taught to me in civics classes regarding our three branch government. The problem is that the Judiciary to be effective upholders of justice must rule with impartiality. The truth is that from SCOTUS down the system has been infected with
    people with an agenda, that overrules any notion of real justice for the average person.

  4. Graduate of NYUSl – – – ok, sometimes it’s not the fault of a crappy law school, just the crappy student who who managed to pass the test.

  5. It’s obvious that the folks who visit this form value the rule of law, the gold standard in the judicial branch being decisions based on the impartial application of the controlling law to a set of relevant facts as can best be determined.

    Result oriented judgments are an anathema; those which intentionally thwart the will of congress being damn near treasonous.

    And I get so discouraged, but I don’t know whether it is because there seems to be so little that we can do or that so few seem to really care.

  6. This judge is one more example of why it is important for the Obama administration to fight tooth and nail to get its judicial nominees approved in the Senate. The Right will stop at nothing to prevent reasonable and well qualified people that Obama has nominated from getting a vote in the Senate. The Left has to remind the Right, in no uncertain terms, that if they do not stop the unprecendented obstructionism on judicial appointments that if, and when the Republicans control the Senate that the Left will return the favor. We can no longer sit back and watch the Senate prevent the judicial vacancies to continue.

  7. Ha! That just shows how truly ignorant Judge Jacobs is. It just so happens that in the late ’70s I met in my office with a gentleman who insisted that the CIA had indeed planted a listening device in one of his molars. He was so intense and serious in telling his story that I decided any expressions of incredulity on my part might be misunderstood. I accordingly instructed him to have a complete set of X-rays taken by his dentist so that I would have the proof we needed to file an action under the Federal Tort Claims Act. He left completely satisfied with my advice, but I never heard from him again.

Comments are closed.