Ninth Circuit Chief Judge Alex Kozinski (left) has written an order (below) absolving a magistrate judge (believed to be Magistrate Judge Edward Chen) of ethical charges after he spoke out publicly against “institutionalized racism” and the criminalization of immigration laws.
Here is how Kozinski described the facts:
A pro se litigant charges that a judge made public comments that violated
the Code of Conduct for United States Judges. She alleges that, after the September 11, 2001 attacks, the judge gave a speech in which he stated he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance” and that the “[c]riminalization of immigration laws” constituted “[i]nstitutionalized racism.” Complainant also alleges that, in another speech, the judge “criticized [a senator’s] work in trying to investigate campaign finance controversies involving [two individuals], both of whom eventually pled guilty to felony campaign finance law violations.” (First two alterations in original).
It is the statement on the criminalization of immigration laws that I find a bit troubling. I find it rather injudicious for a judicial officer to be speaking out publicly against specific laws — laws that he could have to interpret or enforce.
Kozinski, however, insisted that “A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure.” Kozinski (whom I consider a friend and brilliant jurist) was an interesting choice since he is often criticized for comments or jokes. In the opinion he insists “Humor is the pepper spray in the arsenal of persuasive literary ordnance. It is often surprising, disarming and, when delivered with precision, highly effective.”
Chen’s public remarks have been used against his nomination for elevation to the Northern District of California. However, Kozinski ruled that “[w]ithout more, there’s no basis for concluding that the judge’s conduct resulted in “a substantial and widespread lowering of public confidence in the courts.”
I recently wrote a column criticizing Supreme Court Justices for their increasingly public commentary — a trend that diminished the integrity of the Court and reaffirms the view that our courts are partisan and ideologically driven.
The complaint (1090016o(2)) was made public by Legalpad.
Here is the order: 1090016o
Source: ABA Journal
God sent these messengers to silence his critics. http://www.youtube.com/watch?v=y9IXBU6dKdA
He is like a God. http://www.killercop.com//perv/_God.htm
Buddha and Gyges,
You’re both just envious because art is something like beauty … and my beholder was blind!
[sarcasm on]
This magistrate is obviously a liberal, he definitely should be denied appointment to any higher judicial office. the US need more clones of Uncle Clarence Thomas instead of judges who have too much sneaking sympathy for the criminal classes.
[sarcasm off]
Blouise,
Not all art is good art.
Blouise,
I just can’t help myself (relevant part starts at about 6:35)
[youtube=http://www.youtube.com/watch?v=JmyXTOHC3w8&w=480&h=390]
Buddha,
Thank you.
I have only been to court once in my life and, unlike Dr. Harris and Kay, my experience was more in line with “art”. (I’m not counting the two times I served on a jury in criminal trials)
If I may bore you for a moment:
I was 28 years old, driving through a neighboring town in my fancy little sports car. An officer pulled me over and told me I had exceeded a 35mph speed limit by 8mph. He then proceeded to ask me questions about my car, whether or not I had a husband who approved of my car, etc. I gave him the “look” and asked him for the ticket minus the commentary. He tried a couple of more “lines” but since I refused to answer and refused to change the “look”, he became rather petulant and gave me the ticket. I stopped at a pay phone (no cell phones yet)and called the Police Dept. to complain. I went to court prepared to object but decided, as I stood up to plead, to simply go the guilty route and get out of there.
The Judge was blind … I mean literally blind. Before I could enter a plea he stopped me. He then talked to the Bailiff who had all these papers in his hand and I could see the copy of my ticket on the top of the file. I swear I heard the Judge ask the Bailiff if I was pretty and the Bailiff whisper yes.
The Judge then asked me if I had ever had a traffic violation including past speeding tickets. I told him, no, that this was my first ticket. He then told me that he was going to let me go without a fine or Court costs and at the end of 3 months, if I didn’t get anymore tickets, all charges would be dismissed.
Not knowing any better, I asked him why. He chuckled and said, “It would appear that the Officer who issued you this ticket can’t find the necessary documentation that proves you were 8 miles over the speed limit, but he has assured the Court that you were speeding in a written document I have here. So that is my decision. You will not plead to this charge unless you are back in front of me within the next 3 months.”
Strangely enough my youngest daughter had a very similar experience when driving through that town many years later. This time I hired a lawyer for her and the whole case was dismissed by the Judge and the Officer was reprimanded.
I realize that this little story is nothing when compared to the very serious problems others face in Court but it is the only experience I have and I gotta tell you … it was “art”.
Chen also made bad jokes about Sarah Palin in public speeches during the presidential election season. It could have caused her some votes. But the Ninth Circuit says these activities are encouraged by the judge’s code of conduct. I predict that American will eventually ruled by judges alone, as they are not elected and they can make law.
While I agree with the Profeespr and Mespo that judges need to appear and act impartially. However, as the action of some on the SCOTUS have shown the need to appear above the political fray, has been fraying to a greater extent in recent years, thus further damaging the appearance of judicial integrity and impartiality. It is also true though, that in our history personal opinion and partisanship have left the judicial system in a far less lofty place than the Founders intended. In the end, humans being what they are, we can only aspire to
a legal system that decides impatially and with integrity.
Blouise,
I’ll address culheath win the following comment and an edit:
“Why are legislators allowed to usurp judiciary power by legislating minimum sentences, but judges aren’t allowed to take into account the rationality of the legislation in the first place in their written opinions?”
Because legislators can be just as guilty of crossing the line demarcated by the Separation of Powers doctrine as judges can. Or the Executive for that matter. Overreaching is a symptom of a lust for power one does not rightfully hold.
And the edit:
“I see judgments as more of an art than a science and that requires a human element be included as part of what constitutes the
‘truth’‘justice’.”Justice, by its nature, involves equity of outcome, not blind adherence to arbitrary rules. This is part and parcel of the reason for trials in the first place: to determine if the facts of the matter should be dealt with according to precedent and existing law or do the circumstances merit a third outcome based on particular and/or novel circumstance(s). The art in this instance is the sound judgment that a judge is hired for and things like mandatory minimum sentencing not only interfere with the exercise of said judgment, the produce undesirable results like private prisons filled with non-violent drug offenders.
“Why are legislators allowed to usurp judiciary power by legislating minimum sentences, but judges aren’t allowed to take into account the rationality of the legislation in the first place in their written opinions?
I think “truth”,ie,the closest we can get to evidential reality, is frequently smothered because the judiciary is bent toward an overly strict allegiance to internal rules purporting to maintain an abstract and ideal impartiality which doesn’t exist in actuality. I see judgments as more of an art than a science and that requires a human element be included as part of what constitutes the ‘truth’.” (culheath)
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culheath makes an interesting point(s) … would someone answer it, please?
What mespo and AY said. There is a price for not just principle, but power as well. For the second time today, I find myself telling a judge that just because you can do something, it doesn’t mean you should do something.
“Humor is the pepper spray in the arsenal of persuasive literary ordnance. It is often surprising, disarming and, when delivered with precision, highly effective.” Yeah, Judge Alex Kozinski, it certainly is, but the Lady Justice is supposed to be blind without you hosing her down with pepper spray while wearing the robes.
Why don’t you leave the humor to those of us not operating where it could be properly construed or misconstrued as operating under the color of authority.
What I don’t understand in that argument is why legislators are allowed to make all sorts of public arguments and broadcast their opinions on a law, proposed or already enacted. and judges are not.
Why are legislators allowed to usurp judiciary power by legislating minimum sentences, but judges aren’t allowed to take into account the rationality of the legislation in the first place in their written opinions?
I think “truth”,ie,the closest we can get to evidential reality, is frequently smothered because the judiciary is bent toward an overly strict allegiance to internal rules purporting to maintain an abstract and ideal impartiality which doesn’t exist in actuality. I see judgments as more of an art than a science and that requires a human element be included as part of what constitutes the “truth”.
While I agree with the Judge’s sentiments, Mespo and AY have it right. There is a time and a place to air your political views and the court room is not one of them.
I understand what I think he was saying is that some will use the criminal laws to further the anti immigration efforts of some…if you bring the right felony….or misdemeanor you are assured of denial of citizenship….I have seen it done by some prosecutors….
As stated the office needs to be tempered….
Judges have the right the speak and the judgment to decide when to speak. Chen exercised the former but ignored the latter. As JT says, it’s a growing problem. The essence of the job is judgment. When you demonstrate a lack of it, shouldn’t that be relevant to your continued employment?
SCOTUS Justice Samuel Chase was the only Supreme Court member to stand for impeachment in 1804. He was acquitted in a monumental Senate vote that established the independency of the judiciary. However the basis for his impeachment trial — intemperate remarks from the bench forced him to retreat from public commentary and perform the mundane but important tasks of his office. It is said by most historians that Chase’s impeachment profoundly affected Chief Justice John Marshall who worked tirelessly to establish the independence of the judiciary and to insure that judges remained publicly neutral on the political issues of the day to further that end.
Principle has a price as I tell my clients routinely. Sometimes it has a high one such as holding your tongue.