October 2nd, 2007

Is Clarence Thomas Playing the Race Card Again?

When I watched the Clarence Thomas confirmation hearings many moons ago, I was more than a bit surprised to hear him fight back with a claim that the Anita Hill allegations of the hearings were, in his words, a “high-tech lynching for uppity blacks.”

And so I waited for the questions that would address the issue:

Judge Thomas, do you think that allegations of sexual harassment against a candidate for the Supreme Court should be investigated by this committee as part of the advice and consent function of the Senate?

If such allegations were true — for a hypothetical candidate, for we know you deny them — do you think that they would be fair grounds for us to deny our consent?

Those questions, I think, would most fairly be answered as “yes.” And if the answers are yes, then the investigation has nothing whatsoever to do with race.

One could quibble with whether the allegations should be aired in open or closed session, but that doesn’t address the issue of whether the issue should be explored. Ultimately, those that were interested in the classic he said / she said dispute claimed to believe the person that aligned with their politics.

But as far as I could tell, those important questions never came, and Senators were too cowed by the remarks to respond to the issue.

And now Judge Thomas is doing it again in a new book. From Jan Crawford Greenburg at ABC News:

Thomas says he had told [his wife] Virginia that some of his opponents “would try to kill me,” and he had grasped how. It dawned on him that he was being treated no differently that those Southern blacks in his grandfather’s time.

“We knew what their weapon of choice was to be: the age-old blunt instrument of accusing a black man of sexual misconduct,” Thomas wrote. “And it did not matter that a black woman was being used to make the accusations.”

And so, Judge Thomas once again walks down the road of blaming racisim for the sexual harrassment investigation.

And I am wondering who will call him on it.

Brooklyn Judgeship Suit Goes to Washington Next Week

It started in Brooklyn with an angry Civil Court Judge Margarita Lopez Torres trying to get on the ballot for a Supreme Court slot. And it goes next week to the U.S. Supreme Court.

Judge Lopez Torres merely wanted to move up from a lower court (Civil Court) to Supreme Court (New York’s trial court of general jurisdiction). The problem? She couldn’t get on the ballot because the nominations for these elected offices were ordained by political bosses at party conventions, and not the electorate via a primary.

And why couldn’t she get the nomination from the party bosses to get on the ballot? Because, she contends, the bosses that do the picking wanted to use her staff a dumping ground for unqualified patronage.

So she, and nine others, sued in United States District Court, claiming that the voters were deprived of their civil rights by being disenfranchised by New York’s archaic judicial selection practice.

After a 14-day hearing, Judge John Gleeson in the Eastern District of New York (covering Brooklyn, among other local parts) found that Judge Lopez Torres:

“demonstrated . . . that indisputable qualifications for the job and immense popularity among the candidate’s fellow party members are neither necessary nor sufficient to get the party’s nomination. Something different is required: the imprimatur of the party leadership.”

She has now won twice, in U.S. District Court and the Second Circuit Court of Appeals, and oral argument in the U.S. Supreme Court will be heard next Wednesday.

The case centers on this provision of New York’s constitution:

the justice of the supreme court shall be chosen by the electors of the judicial district in which they are to serve.

Judge Lopez Torres says that this means the electorate must chose, for to allow the party bosses to make the picks is to leave power in the hands of the entrenched interests.

The party bosses, on the other hand, claim that this can be accomplished either by primary or party convention, as the legislature has prescribed. This is the position of both the Democratic and Republican machines, as well as the Association of Supreme Court Justices.

There are 33 states that election judges. Only one does not allow for primaries to pick them. New York.

Stay tuned…

Appellate Court Issues Opinion Seven Years After Argument

The appeal was argued in June 2000. The decision came down last week. Let the bar take notice.

The case was one of employment discrimination. There were no exceptional or unusual points of law.

It comes from the District of Columbia Court of Appeals. The decision is here: SevenYearOpinion.PDF

A footnote on page 24 says:

The court sincerely regrets the unusual delay in issuing this opinion.

Has the court set a record for judicial delinquency?

(hat tip: Ben Glass)

July 25th, 2007

Can Alito and Roberts Be Impeached For Lying During Confirmation Hearings?

An interesting question was raised yesterday by Sen. Arlen Specter, who chaired the confirmation hearings of Chief Justice Roberts and Justice Alito. Yesterday he called for a probe into decisions this past term that over ruled precedent.

The basis of the probe will be to see if Roberts and Alito have “lived up” to their assurances that they would respect legal precedents.

Since the judges are, of course, lifetime appointees, and there is nothing that can be done about them short of impeachment and removal, then is stands to reason that the only possible outcome of any hearings — other than seeking publicity, but politicians would never do that — is to determine if they lied during their confirmation hearings. And if so, to proceed to impeachment, since that is the only remedy available.

The reasoned claim for the hearings, by the way, is not impeachment but to help with future confirmation and candidates who aren’t candid. But that is a charade. If the Senate wanted better answers, they should ask better questions. Instead of posturing for the cameras as is all-too-often the case.

(hat tip, American Constitution Society Blog)

(Eric Turkewitz is a personal injury attorney in New York)

July 9th, 2007

A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat

New York’s Chief Judge Judith Kaye has abandoned her previous threat of a lawsuit against the legislative and executive branches for the failure to grant even a cost-of-living pay raise over the last nine years.

In a letter to the judiciary over the past holiday week, Chief Judge Kaye, pictured at right, backed down. In an unsigned, four page letter marked “Confidential,” she wrote that any such lawsuit by the Third Branch of government against the other two “must withstand the strong light of day,” and that formulating an appropriate theory has “not be an easy task.” The judge added that had such a suit already been brought, it would not “have helped us one whit” and “it would have damaged our cause.”

How did this confidential letter come to light? Because sitting Justice Emily Jane Goodman of Manhattan has now written about it, publishing both the Chief Judge’s letter and her own response online in an exclusive report at Judicial Reports. And Justice Goodman wants to know why, if such a suit would not have been helpful or couldn’t be brought, was the threat so publicly made?

Justice Goodman, using an extraordinarily sharp tone considering her target, and often dripping with sarcasm that attorneys are unaccustomed to hearing from the bench, is anything but kind to Chief Judge Kaye. A few snippets of of Justice Goodman’s response:

The Chief Judge writes that she understands my “mounting frustration,” though I suspect she will find it unseemly when I, a New York State Supreme Court Justice, am forced into bankruptcy. She’s assuring me that our problems with the Governor and Legislature are not unique in the nation; but show me one other judicial entity in its ninth year without a pay raise or cost of living increase.

…

Yet all is not lost. They are “doing something,” and, “please be assured that we are wholly dedicated to achieving our objectives and unrelenting in our daily calls and visits.” Calls and visits are sweet, but have little to do with the urgency felt by those of us who are losing control of our lives.

I’m sure the Chief Judge believes that these contacts will do the trick. But, by the way, she and the other administrators have never been elected, have never run for office or been touched by politics, in a way that would enable them to understand politics and political negotiation. Those who are appointed are the beneficiaries of politics, without experiencing the dynamics themselves. Almost all court administrators (I can think of few exceptions) are appointed, and almost none have ever been elected to the Supreme Court.

There is much more at the Judicial Reports link above.

The publication of the confidential letter and the sharp commentary accompanying it, has the sound of an insurrection against Chief Judge Kaye from the ranks of our trial judges, if others feel as betrayed as Justice Goodman. And it is possible that, if the trial judges don’t see acceptable action from their leadership or the legislature, that a work “slow down” may be in the future.

Addendum 7/15/07: See also A Bold Move By Justice E.J. Goodman (Simple Justice)

(Eric Turkewitz is a personal injury attorney in New York)