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