Wednesday, April 04, 2018

My Memorial Essay for Judge Reinhardt

by Michael Dorf

Judge Stephen Reinhardt, for whom I clerked in 1990-91, died last week. On Verdict, I've written an essay in his memory.  I customarily write a blog post exploring some aspect of my Verdict column in greater depth, but today I'll just let the column speak for itself. Bill Hausdorff will have a blog post here later this morning.


Joe said...


Joe said...

Ugh. Phone fail. Sorry.

For those who wish to listen to him, CSPAN has some video, both of some judicial panels and other stuff.

Shag from Brookline said...

Mike, are you satisfied, at long last, that John Barron has crossed the line to the Perfectly 'Rhoidless that you have drawn in the past? John Barren is challenging you to debate a man whom you revered who recently passed away. Boston lawyer Joseph Welch's response to Sen. Joseph McCarthy would be appropriate here. But John Barron has no shame. I don't mind his mindless slings and arrows as they are off target; sometimes I deflect him from attacks on posters, especially Eric. John Barron is on a personal mission, not so much defending originalism, but rather his screed against the judiciary. That's what Trump has also done. The judiciary has thwarted Trump to a great extent. I'm not suggesting you actually debate John Barron. I'm a visitor to this Blog and respect the posters, whether or not I am in agreement with their views. The judiciary is not perfect; what is, other than the Perfectly 'Rhoidless John Barron. Assuming John Barron is actually a lawyer, his screeds on the judiciary might indicate why he hides behind the name once used by Donald Trump. There's no irony there.

Mike, my condolences for your loss.

Joe said...

His co-author of "On Reading the Constitution," Laurence Tribe, noted on Twitter:

"As I reflect on the gaping wound justice suffered with Judge Stephen Reinhardt’s passing, I recall his frequent praise for former law clerks — especially Kate Andrias, David Barron, Andrew Crespo, Mike Dorf, Heather Gerken, Joshua Matz, Deval Patrick, Ben Sachs & Bobby Shriver."

John Barron said...

Shag's considerable personal animus toward me clouds his judgment, and prevents him from seeing the larger picture.

If the status quo ante remains unchanged, conservatives will control the judiciary for the next 15-20 years. That will mean that Trumpism is here to stay.

If you think that that is a good thing, you are on your own.

Odds are that RBG won't make it to 2021, and Kennedy will retire shortly. As the odds of recovering the Senate are still less than 50-50, that means two more Gorsuches, and the fulcrum of the Court being Sc-Alito. And Reinhardt is going to be replaced by yet another Gorsuch.

If you think that that is a good thing, you are on your own.

What I argue for is a way forward to unpacking and even repacking the Court. First, it must be recognized that our appellate courts are not doing their jobs, and that to do it right requires a trebling of their size. Second, it must be recognized that SCOTUS is not doing a major part of their job--superintendence--and to discharge it means doubling of its size. Finally, it must be recognized that originalism is pretty liberal-friendly and need not be feared.

If no one cares enough to fix this mess, so be it. Enjoy your fascism, Shag.

Shag from Brookline said...

John Barron can fix "this mess"? Sounds like Trump's campaign claim "Only I can fix it."

Can we now expect John Barron to attack Judge Reinhardt's former clerks identified in the Laurence Tribe tweet? John has already challenged one of them.

John Barron has a new claim for originalism:

"Finally, it must be recognized that originalism is pretty liberal-friendly and need not be feared."

I wonder if originalists at the Originalism Blog and at the conservative Federalist Society are aware of this? Larry Solum streamed on "Surprising Originalism" yesterday. Bork/Berger must be rolling over in their graves.

One road to fascism is to attack the judiciary. But John Barron cannot make his new knees rehab on time. And the courts poll higher than Congress; hey, but who doesn't?

By the way, over at the Take Care Blog there is a link to a talk by Joshua Maltz on litigation involving the Trump Administration. John Barron and Trump seem to share the same views of the judiciary mess. Query: Has any one else noticed that John never comments at the same times that Trump tweets? Coincidence? I wonder what John Barron's litigation calendar looks like? Or does John Barron compete with H & R Block on individual tax returns?

John Barron said...

Shag: "The judiciary is not perfect"

Neither are our gun laws. So, I take it that you would agree not to change them, Ms. Loesch???

Shag: "Boston lawyer Joseph Welch's response to Sen. Joseph McCarthy would be appropriate here."

As your precious Boston Herald notes, liberals gave Scalia a grace period measured in hours. All I have suggested is that the admittedly brilliant Judge R knew better, had feet of clay, and a clear moral obligation to speak up.

Shag: "I deflect him from attacks on posters, especially Eric."

I have not attacked Eric personally but rather, brutalize his absurdly tendentious views regarding originalism. When you post, you invite critiques. But you have gone well out of your way to attack me in the manner of Donald Trump--personally.

Have you no shame, Shag? We already know the answer.

John Barron said...

Shag: "One road to fascism is to attack the judiciary."

Explain that to the World Justice Project (with three current/former Justices on their Board), which ranks us as the worst judiciary in the Western world. And while you are at it, explain it to judges like Posner, Wald, Corrigan, and Reinhardt, and scholars like Llewellyn, Richman and Reynolds, and Monroe Freedman (one of the nation’s leading scholars on judicial ethics until his passing), who observes:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

There is a palpable difference between Dolt.45's Earl Weaver impression and criticism founded in hard fact. And some of the most brutal thunderbolts come from the bench.

Go ahead. Explain to me why a judge should EVER fabricate a fact to support his or her decision. (Hint: In America, it happens a lot. [E.g., Silberman and Fletcher, per Ben Wittes.])

Shag: "Bork/Berger must be rolling over in their graves."

God, I hope so!

Shag: "John Barron and Trump seem to share the same views of the judiciary mess."

Do we? Or is that statement further evidence of your senility? As I have had personal dealings with him, I never would have put Gorsuch on SCOTUS.

Shag: "I wonder what John Barron's litigation calendar looks like?"

R-E-T-I-R-E-M-E-N-T. Taken several trips to the Caribbean to plan my escape, and have another coming up in short order. If I chose St. Kitts, I could even abandon my U.S. citizenship. Figure just about anything is better than dying in Boston.

Shag: "And the courts poll higher than Congress"

Mostly, due to obsequious TV coverage. And the fact that Congress really IS that bad. Hard to top the Bribery Yields Fantastic Returns Act of 2017 for sheer kleptocracy.

John Barron said...

Shag: "One road to fascism is to attack the judiciary."

The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.

Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004) (emphasis added).

While his evidence is anecdotal, Northwestern University law Professor Anthony D’Amato suggests that incidents of this shocking form of judicial malfeasance are distressingly common. Still, few seem as thoroughly documented as the murder conviction of Dr. John Branion, a black physician who secretly treated Black Panthers during the ’60s.

From D’Amato’s account of the incident, it’s easy to see how the unscrupulous judge could virtually ensure the conviction of an innocent man, or vice versa. By controlling what a jury can hear, he can distort the true facts of the case beyond recognition. By changing or misstating facts in his opinion, he can virtually ensure that it will not be overturned. And by misapplying or completely disregarding black-letter law, appellate courts can conceal the crime with impunity. Not surprisingly, D’Amato calls the lack of candor in opinion-writing the “dirtiest of [judicial] linen that should not be displayed in public.”

To hear him tell it, judges seek appointments on the bench for the power and prestige, rather than the money; former Colorado Supreme Court Justice Gregory Scott seems to agree. And if even one Father Geoghan can bring the entire Catholic priesthood into disrepute, judges have an obvious motive to conceal the crimes of their colleagues. Prof. D’Amato explains:

No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. ... We perhaps demand too much of human nature if we expect judges to be unconcerned with the loss of public prestige that results from admitting that cases of serious judicial misconduct are not extraordinarily rare.

Whether called the “conspiracy of silence,” the “blue wall of silence,” or even omerta guilds have always had ways of keeping their dirty linen from public view. And if doctors protect doctors, cops protect cops, and mobsters protect mobsters, would it really be all that surprising if judges protected fellow judges?

Even attorneys know that outing a corrupt judge is a “career-limiting move,” which few dare to attempt. Consider the craven cowardice of O.J. Simpson “Dream Team” alum Alan Dershowitz:

It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, “I don’t care if my opponent knows the law, as long as I know the judge.” In the old days, it was financial corruption -- cash changed hands. Then it became the “favor bank,” in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.

If Dershowitz had ‘seen it with his own eyes’, he had an affirmative obligation to report it. But he didn’t, and didn’t even have the courage to name names. If an attorney with the stature of a Dershowitz can even be cowed into silence by the fear of retribution, the average barrister can’t hope to survive retaliation by the judges’ guild. Just ask Doris Sassower. Or former MA gubernatorial candidate Barb Johnson.

Shag: Note for the record that I don't relate a single personal anecdote. And I can go on and on and on....

Shag from Brookline said...

Yes, John Barron can go on and on and repetition after repetition. John Barron is an example of the wolf who cried animus.

By the Bybee [expletives deleted, despite Gina] John, were your many, many references to Eric as "Bugsy" a form of John Barron endearment?

Did I have a role in your retirement? I don't recall you mentioning this before. Is it early retirement or are you a geezer too? Your leaving the country and giving up US citizenship shows you are serious - or on the lam - but you would be a failed Pied Piper as only a few lemmings from CO would follow.

Shag from Brookline said...

John Barron in the middle of his comment on William's excellent post on war asserts"

"Our judges write the law, and few appear discomfited by that."

Apparently John Barron is not succeeding with his extensive, repetitive efforts at this Blog ranting about the evils of the judiciary to be very convincing, by his own admission. But John will go on and on, timing for moderation to set in. John's getting his "daft [sic] LR article" published in dribs and drabs. Set your alarm, John, it's a long night.