Chief U.S. District Judge of Montana Richard Cebull is under fire for a joke that he sent to friends from his court email. The email has been denounced as racist and “compares African-Americans to dogs.” He insists that it was not for public circulation and reflected his dislike for the president, not black people.
Judge Cebull sent an email entitled “A MOM’S MEMORY.” It opened with the statement “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.” It follows with this “joke”: “A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’ His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”
Cebull says that it was only sent to six other people as well as his own private emails. It appears that one of the six other people sent it along to the media.
Cebull insists that the email simply shows that “I am not a fan of our president, but this goes beyond not being a fan. I didn’t send it as racist, although that’s what it is. I sent it out because it’s anti-Obama.”
We previously saw Chief Judge Alex Kozinski involved in a controversy over pictures and jokes sent to friends over a personal website.
The case raises the question of how to respond to such an email. Some have called for his resignation or removal. Others for judicial discipline. There are two likely ethical charges. One is the misuse of the court computer and the other is the transmission of a racist communication.
First, judges routinely use their work emails for private communications. We all tend to use office email for a variety of purposes. I do not see how this judge can be severely disciplined for simply using office email for a private communication. If Cebull is punished, what about the fact that probably 90% of judges use their office emails for private messages as the rest of us do (the other ten percent do not use email).
Second, there is the racism charge. Cebull insists that this was anti-Obama and not anti-black. It is still a stupid joke. However, I am not sure it is fair to assume that the judge is a racist from this one joke. It could simply show that he is entirely clueless and thoughtless. That is never good in a judge, but the question is whether it warrants the actions demanded against him.
Working in his favor is the relatively small number of people who received the email (though one always has to anticipate re-transmissions or forwarding of emails). He was sharing a bad and racially loaded joke with friends. We have discussed the trend toward punishing public employees for private emails, postings, and activities. Of course, a judge is required under ethical rules not to conduct themselves in a way to bring contempt upon the court. Canon Two states “a judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The comment Canon 2A does seem to have some relevance here:
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
While I certainly see why this type of joke raises serious and legitimate concerns, I am not convinced that it warrants punishment beyond the current (and justified) public criticism. The judge is claiming that he thought he was sending this to a handful of friends. It would be akin to a bad joke at a party being repeated later. He clearly failed to appreciate that “the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” That would include racially-charged jokes that get out. Yet, the question is whether it warrants an actual reprimand or more serious punishment. There may be a sense that, given the use of the court computer, an admonishment is needed — just as Chief Judge Kozinski was admonished.
Cebull received a B.S. from Montana State University in 1966 and a J.D. from the University of Montana Law School in 1969. After a long stint in private practice, he served as trial judge of the Northern Cheyenne Tribal Court from 1970 to 1972. He then served as a United States Magistrate Judge for the District of Montana from 1998 to 2001 before being nominated by President George W. Bush to a seat on the United States District Court for the District of Montana. He became chief judge in 2008.
Source: Politico
I love Montana, and I feel this judge has embarrassed all Montana citizens.
Bob,
I think it prudent to look to Burlamaqui instead of Montesquieu for the separation of powers origin. After all, it was Burlamaqui who called it “a kind of partition in the rights of sovereignty”. He even nuanced this by recognizing that “the different bodies of state” would require a “mutual dependence”.
As far as the social contract goes, I think any discussion would also require an examination of Hobbes.
When I look at the formation of the Union, and the infancy of the independent states, I have to recognize what it was the Founders/Framers were looking at. The three most popular books on civil law that were widely read by post-revolution law students were (in order of numbers published):
1. “An Essay on Crimes and Punishments” by Cesare Beccaria, (1778) –(sold by R. Bell, next door to St. Paul’s Church, on Third-Street in Philadelphia, PA.)
2. “The Principles of Natural Law” by Jean Jacques Burlamaqui , (1748)
3. “The Law of Nations” by Emmerich de Vattel, (1758)
In my mind, those three works should be the starting point for any legal discussion. Why go older instead of looking to the philosophers that had time to digest the works of their predecessors and improve upon them?
Bob Esq:
“The Kelo decision finds absolutely no support within the text of the 5th Amendment.”
Then where did they find support?
Negating the Colonial Charter,
While I find your discussion of Leibniz fascinating, and bookmarked the link you provided, you seem intelligent enough to understand the difference between an epistemic/moral approach to analyzing the social contract and a legal analysis of same.
Legally, the social contract comes down to one fundamental issue; mutual obligation so as to avoid the problem of the contract being illusory. That problem was competently solved by Locke in his 2nd Treatise by distinguishing alienable rights and usurpation from inalienable rights and tyranny. Toss in Montesquieu’s spirit of laws per the separation of powers doctrine and you have the meat and potatoes of our republic as further discussed in the Federalist papers.
Again, that’s for purposes of legal analysis; i.e. the only arena, outside academia, wherein you’ll find cardinality between your thoughts on the subject and the real world.
No Rush, Bob. I’m about to do the same. Enjoy your dinner.
Negating the Colonial Charter,
About to eat a late dinner so I’ll have to reply later tonight or tomorrow.
Bob,
“Your side note regarding the epistemology of Leibniz is interesting but completely irrelevant as per a legal analysis of the social contractual roots of this republic.”
How so? I still see the square block being shaved in order to fit in the round hole. I think Leibniz comes closer to our social contractual roots than Locke.
Bron,
The Kelo decision finds absolutely no support within the text of the 5th Amendment.
Bron,
“But doesnt saying Jefferson’s three favorite intellectuals Bacon, Locke and Newton sort of refute your claim?”
Not at all. Jefferson’s choice of favorite intellectuals was personal. He wrote the DOI, not for himself, but for the colonies. Vattel was front and center during that period.
The “Law of Nations” wasn’t just the name of some book, it was a treatise about the common law among civilized nations. It was based on the observations of Grotius and Pufendorf.
Did you know that Hamilton said that Julius Caesar was the greatest man that ever lived?
Bob Esq:
how so?
The obvious to this layman is taking private property for private use for public good [taxes].
As a lawyer and philosopher what are your reasons?
Bron,
Kelo is a botched abortion of a case.
Negating the Colonial Charter,
Your side note regarding the epistemology of Leibniz is interesting but completely irrelevant as per a legal analysis of the social contractual roots of this republic.
Confidentially, I was anticipating a segue into monads and Jung’s theory of synchroncity.
Negating:
That is some interesting information.
But doesnt saying Jefferson’s three favorite intellectuals Bacon, Locke and Newton sort of refute your claim?
Bob Esq:
what did you think of Kelo? It seems to me that was tyranny even with compensation.
The myth that John Locke was the philosopher behind the American Republic, is easily refuted by examining how Locke’s philosophy steered Thomas Jefferson, for example. Jefferson’s actions make it clear that, had Locke’s philosophy been the inspiration for the American Revolution, the U.S. would never have become the world’s leading nation and industrial power. Jefferson, who claimed that the three greatest men in history were the British empiricists Francis Bacon, John Locke, and Isaac Newton, adopted their outlook that sense certainty is the basis for all knowledge, writing:
“I feel, therefore I exist. I feel bodies which are not myself: there are other existences then. I call them matter. I feel them changing place. This gives me motion. Where there is an absence of matter, I call it void, or nothing, or immaterial space. On the basis of sensation, of matter and motion, we may erect the fabric of all the certainties we can have or need.” (Letter to John Adams, Aug. 15, 1820)
Having denied that human nature is creative reason, Jefferson saw society and economics as based on fundamentally {fixed} relationships. Consequently, he endorsed Thomas Malthus’ ideology, that man’s needs must exceed his ability to produce. He rejected national economic development through the increase of the productive powers of labor, and instead accepted Adam Smith’s free trade doctrines. Jefferson saw slavery as appropriate for Blacks, whom he considered as inherently inferior.
Jefferson opposed Hamilton’s measures for the development of the nation, and in a private letter stating his opposition to Hamilton’s National Bank, for example, he raved that any person in the state of Virginia, who cooperated with the Bank, “shall be adjudged guilty of high treason and suffer death accordingly.” Jefferson was fanatically opposed to the development of American industry, and described the growth of cities in America as “a canker which soon eats to the heart of its laws and constitution.” He fought to keep the nation as a feudal plantation.
If man were nothing more than a bundle of hedonistic instincts, however, whose cognitive ability were limited to sense certainty, mankind would today be no more than a few million bestial individuals on the entire planet, scratching out an existence in the dirt. In his own period, it fell to Gottfried Leibniz, who represented the best of the tradition of the Renaissance that had established the modern nation-state beginning with the France of Louis XI, to demonstrate that Locke’s premises were an inhuman fraud.
Leibniz developed a science of the mind, which was coherent with human nature as creative reason, rather than animalistic instincts. For the human species to make fundamental changes in its methods of existence, men must be capable of creative reason, instead of merely taking in sensual impressions and acting on instincts. Leibniz described how the mind functions by recognizing the contradictions in sensual impressions and generating Platonic ideas, which are “by far to be preferred to the blank tablets of Aristotle, Locke, and the other recent exoteric philosophers.”
In his writings, Leibniz demonstrated how the principles of science and law are also “not derived from sense, but from a clear and distinct intuition, which Plato called an idea.” Plato discussed, in the {Republic,} how some sense impressions do not provoke thought, because the judgment of them by sensation seems adequate, while others always invite the intellect to reflection, because the senses give the mind contrary perceptions. These sense impressions force the mind to conceptualize an explanation, which is intelligible rather than visible. The best example of a Platonic idea, is the demonstration which Lyndon LaRouche has developed of Erastosthenes’ measurement of the size of the earth, which Eratosthenes accomplished several millennia before anyone had actually “seen” the shape of the earth’s curvature.
Leibniz and Locke’s conception of how the mind works, was reflected in their different understanding of the nature of God. Leibniz’s God is the Creator, who is able to transform the universe to higher levels of perfection, in a fashion which is reflected in man’s transformation of human society. To illustrate how God transforms the universe, Leibniz used the example of an eternal book on the Elements of Geometry. Each new copy is made from the previous one, with new advances being added, in a lawful process of change. The nature of this lawful process of change from one copy to the next, is illustrated by the scientific discoveries made by Leibniz and his collaborators. The new copy of the Elements of Geometry, is not reached by principles of formal logic, but through a scientific discovery which takes the form of a Platonic idea. “What is true of books, is also true of the different states of the world; every subsequent state is somehow copied from the preceding one (although according to certain laws of change).” Leibniz quoted Plato’s {Phaedo,} to describe how the Creator orders the universe according to reason, and is continually acting to further the perfection of his creation.
For Enlightenment neo-Aristotelians like Sarpi, Locke, and Grotius, the idea that the universe could be both lawful and evolving in a constant process of perfection, was incomprehensible. They saw God as trapped in the same set of fixed rules, in which their minds were trapped. Grotius stated this explicitly, arguing that, “The law of nature, again, is unchangeable–even in the sense that it cannot be changed by God.” Since not even God can change these fixed laws, far less powerful mankind must live in a universe defined by these fixed relationships. Aristotle, Locke, {et al.,} developed a system of law, and a model of society, in which people are trapped in fixed categories, such as aristocrat, or servant.
Leibniz understood that the idea of man living in accordance with natural law, does not mean searching for some set of fixed laws, floating off in the heavens. Rather, man lives in coherence with natural law, by ordering society according to the powers of creative reason, which makes man in the image of God. For Leibniz, the highest right, and the source of true happiness, is {piety,} when man lives so that he seeks to perfect himself, in conformity with the perfection of the Creator.
Leibniz located the two traditional notions of right, which had been codified by Aristotle, as less universal than piety. The higher of these two, Leibniz called equity. This included distributive justice, or the precept of the law that commands us to give each one what he merits or deserves. The lower degree, was that of mere right, or strict right of commutative justice, that no one is to be injured. “The strict right avoids misery whereas the next higher right, equity, tends toward happiness, but only such as fall within this mortality.” It is the responsibility of the state, to make laws which transform the moral claims of equity, such as the obligation to take care of the sick, into legal claims, and thereby assure the happiness of the people.
Universal justice, however, is found only on the highest level, that of piety. The transformation from the middle to the highest level, is the difference between desiring good of others for our own benefit, and desiring good of others because it is our own good. On this level, man determines the justice of his acts, by weighing their consequences against the entirety of the past, present, and future. Leibniz expressed this again more simply, in the statement, “Parents exist primarily for the sake of children; the present, which does not last long, for the sake of the future.” However, the clear comprehension of the mind, needed to understand justice on its highest level, is achieved by few, and the hope for improvement for humanity rests on those great men.
http://east_west_dialogue.tripod.com/vattel/id7.html
Bron,
Jefferson made the stylistic choice of (what I term) tempering the concept of property.
“But when you enter into society and grow an orchard, no one has a right to your apples. The apples are an extension of your life, which no one has a right to.”
Property rights are not inalienable; thus we have “Appeal To The Higher Law” long before there was a Takings Clause or a 5th Amendment.
The wrongful exercise of power over property rights, sans the inalienable right of self ownership, is usurpation by definition; not tyranny. And for that which is taken, the social compact provides recompense; either in the form of protection of other rights or actual recompense for the property taken.
“I never challenged it. I simply clarified the origin of a phrase.”
Ah, well, that’s what I took you to be doing at first, but your continued elaboration made me second guess my first impression. 😀
Gene,
I never challenged it. I simply clarified the origin of a phrase.
Here’s a nice summation of the idea of ‘tempering’ the concept of life, liberty and pursuit of happiness in lieu of simply property– from the post above no less!
“The inclusion of “the pursuit of happiness,” rather than “property,” as an inalienable right, was a crucial statement, that the American Revolution would be a battle for the establishment of a true Republic, rather than merely a dispute between two groups of aristocrats over the division of property.”
Bob Esq:
interesting essay.
I am not sure I understand how Locke is tempering ownership of property.
He just says that you should be mindful of the rights of others which is, of course, a universal truth. But property is not stolen from other people in this country [for the most part] it is created by hard work and sustained effort by individuals who pursue wealth.
Locke would say other people have no right to that which you produce as long as there is enough left for others. That is in a state of nature where all is common to all. But when you enter into society and grow an orchard, no one has a right to your apples. The apples are an extension of your life, which no one has a right to.
“The way I see it, Jefferson combined the two works of Locke out of his greater understanding of the intent of his writings.”
Or did someone already do that for him?
The delegates to the Continental Congress, who drafted and signed the Declaration of Independence, studied Leibniz’s conception of natural law, through studying The Law of Nations, by Emmerich de Vattel.
“Delegates to the First and Second Continental Congress, which produced the Declaration of Independence, often consulted The Law of Nations, as a reference for their discussions. One important reason why the delegates chose to meet in Carpenters Hall, was that the building also housed the Library Company of Philadelphia. The librarian reported that Vattel was one of the main sources consulted by the delegates during the First Continental Congress, which met from Sept. 5 to Oct. 26, 1774. Charles W.F. Dumas, an ardent supporter of the American cause, printed an edition of The Law of Nations in 1774, with his own notes illustrating how the book applied to the American situation. In 1770, Dumas had met Franklin in Holland, and was one of Franklin’s key collaborators in his European diplomacy. He sent three copies to Franklin, instructing him to send one to Harvard University, and to put one in the Philadelphia library. Franklin sent Dumas a letter, Dec. 9, 1775, thanking him for the gift. Franklin stated, “I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, has been continually in the hands of the members of our congress, now sitting …|.”
The study of The Law of Nations by the delegates to the Continental Congress, to answer questions “of the circumstances of a rising state,” is reflected in the Declaration of Independence of July 4, 1776. The central ideas of that document are coherent with Vattel’s arguments on the criteria of a people to overthrow a tyrannical sovereign. The Declaration of Independence states that governments are instituted to fulfill the “inalienable rights” of “life, liberty, and the pursuit of happiness,” and can be changed if they fail to meet these obligations to the people. Governments should not be changed for light and transient causes, but only after a long chain of abuses to the fundamental rights of the people, with repeated requests for redress of grievances, which were refused. Repeated appeals were made to our “British Brethren,” but since they “have been deaf to the voice of justice and of consanguinity,” we are prepared to face them either in war or in peace. Therefore, we declare ourselves independent of the British Crown, with the full powers of a sovereign government, “to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do.”
The inclusion of the central conception of The Law of Nations, Vattel’s Leibnizian concept of happiness, as one of the three inalienable rights, is a crucial statement of the Declaration’s Leibnizian character. The Declaration of Independence was prepared by a committee consisting of Benjamin Franklin, Thomas Jefferson, John Adams, Robert Livingston, and Roger Sherman. Jefferson was assigned by this committee to write the draft of the Declaration, after John Adams turned down the task, because of his numerous other responsibilities. The fact, that Jefferson was a strong proponent of the philosophy of John Locke by as early as 1771, is often used as evidence that the Declaration was based on Locke’s philosophy. However, Locke had argued, in his {Two Treatises of Government,} that the fundamental right of men is to “Life, Liberty, and Property.” The inclusion of “the pursuit of happiness,” rather than “property,” as an inalienable right, was a crucial statement, that the American Revolution would be a battle for the establishment of a true Republic, rather than merely a dispute between two groups of aristocrats over the division of property.”
http://east_west_dialogue.tripod.com/vattel/id3.html
I never understood why people kept trying to put the square peg in the round hole. Locke may have served a fundamental role, but his philosophical ideas were not sufficiently developed to provide for a nation.