James M. Redwine

Judicial

Mental Gymnastics

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Former President Donald Trump is facing both state and federal charges in several courts of law. These charges present difficult challenges to the judges in each case with the most important judicial task being to guarantee that all parties receive a fair trial. However, that duty to the people directly impacted by each case must be carried out without violating the right that our Founders knew to be the right that was essential to guaranteeing all of our rights, Freedom of Speech.

While several of the Founders championed freedom of expression as fundamental to democracy, Benjamin Franklin, a newspaper publisher himself, led the debate:

“Freedom of speech is a pillar of a free government;
When this support is taken away, the Constitution of
a free society is dissolved, and tyranny is erected on its ruins.
Republics derive their strength and vigor from a popular
examination into the action of the magistrates.”
 

Benjamin Franklin was born in 1706 and was immersed in the printing of politically focused newspapers in Philadelphia when fellow printer John Peter Zenger was prosecuted for libeling British Governor William Cosby in New York City in 1734. Zenger was jailed pending his jury trial but when he was tried the jury acquitted him in spite of the clear violation of the British Colonial law. The jury made up its own mind in spite of an atmosphere of bias from the government.

Currently, some of the judges in Donald Trump’s cases have fashioned gag orders that threaten punishment if Trump says things about the possible evidence, the witnesses, the prosecutors or the judges. The reasons given by the judges for these gag orders all claim they are to protect the parties and witnesses from attempted coercion and to prevent the tainting of any future jury pool. In other words, the judges have no faith that potential jurors can do what judges must do in every case. That is, put aside any irrelevant matters and decide Trump’s cases only on the law and the facts.

As a judge for over forty years I find this lack of confidence in jurors ill founded. Judges decide almost all cases without a jury if there is no plea agreement in criminal cases or no settlement in civil cases. In other words, people have confidence a judge in a criminal case may receive an indictment from a grand jury the judge impaneled or approve a charge brought by a prosecutor and still decide the case. Or, a judge may issue an arrest or search warrant based on in depth out of court statements and then set that information aside and still fairly decide guilt or innocence. If one person, a judge, can do this so can twelve. Of course, statements by parties that threaten physical harm should not be tolerated. However, comments about the evidence, the prosecutor or the judge that offend the judge come with the robe, even if those comments are unfair, unkind and untrue. Just ask John Peter Zenger, Benjamin Franklin, Thomas Jefferson, James Madison, etc., etc.

Jurors can be trusted, just as judges can be, to do their duty. CNN or FOX News can be eliminated from the jury room. The voir dire procedure is designed to exclude potential jurors who cannot do that. Does the legal system occasionally fail and a biased judge or jury render a decision based on pre-trial publicity or emotion? Unfortunately, that happens. But to deny America the vital protection of the First Amendment in an attempt to eliminate human frailty is a fool’s errand and an affront to our Sixth Amendment, Right to Trial by Jury.

Gentle Reader, I would like to share with you one of my own experiences as judge as an example of the public’s faith in the ability of a judge, or jury, to set aside bias and still fairly handle a case. Now, I might not process this case today the way I did a few years ago but I will let you be the judge of what happened then. Anyway, what follows is true, if perhaps, somewhat askew legally.

When I received my honorable discharge from the United States Air Force the only job I could find in Indianapolis, Indiana where I lived with my wife and son was selling P.F. Collier Encyclopedias door-to-door. We only owned one car, a 1956 Ford Fairlane convertible. I really liked that car but we decided we needed a new one so I sold it to a guy I worked with on the basis he would pay me each week. Well, the week after I gave him the keys he disappeared with my car. I did not see him again for twenty-five years when he appeared in my courtroom charged with a home burglary.

I had forgotten his name and he surely did not recognize mine. He and his attorney and the prosecutor had filed a plea recommendation and requested that I approve it based on a pre-sentence report prepared by my probation department. After reading the report I realized this man in front of me had stolen my car. When I confirmed that fact, I told him I would recuse and get him another judge. He said, “Ah, Judge, were you going to take the deal before you remembered who I was?” I said, “Yes”. He said, “Well go ahead.” I said, “No, go out and talk to your attorney”. He did. Then he and his attorney and the prosecutor said, “Judge, we really want you to stay on the case so we can get this done now”. I said, “Okay, but what did you ever do with my car?” He said, “Well, when we got to Oregon it quit running and my wife had me cut off the top and fill it with potting soil then she made a planter out of it.”

Now, I know I had other options but one thing this case showed me was a judge or jury can be fair even when personally offended. So suck it up judges and have faith the jurors will not be any less pure than you.

 

False Flags

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Photo by Peg Redwine

The United States Supreme Court has upset the United States Congress since Chief Justice John Marshall created the Court’s power to be the final authority on what our Constitution means. The Court, in the case of Marbury v. Madison, used President Thomas Jefferson’s pride against his logic and traded an insignificant presidential appointment by John Adams, Jefferson’s bitter political enemy and his immediate predecessor, for the immense and previously non-existent “Power of Judicial Review”. Ever since 1803 Congress, the Executive Branch and the American public have regularly wrung their hands as the Court decided numerous atrocious cases such as Dred Scott, Bush v. Gore 2000, Citizens United v. FEC and Dobbs v. Jackson. Yet from 1789 when our Constitution was ratified until today the authority to balance the power of the Supreme Court has been clearly set forth in Articles I, II and III of the Constitution. It just requires that Congress find the courage to do so. Article III provides that justices of the Supreme Court:

“[S]hall hold their offices during good behavior.”

And it is up to the House of Representatives to decide what is “good behavior” and whether a justice has violated it, such as by committing some unethical act. Then the U.S. Senate holds a trial on the charge of impeachment.

In our current legal and political climate many members of Congress have publicly stated some justices have committed impeachable offenses. However, instead of advancing articles of impeachment Congress rails against the Court and demands the Court police itself and come up with written ethical rules and sanctions. Not surprisingly, the justices demur; no one likes to be controlled by anyone else, especially if those anyone elses are as lacking in “good behavior” as the Court.

If Congress wishes to influence the personal behavior of the justices in such areas as conflicts of interest and abuse of their special status, all Congress needs to do is apply the Constitution. On the other hand, we as a country, could find the courage to quit prescribing pain killers and perform some real, curative surgery on the judicial limb of our three-branch government.

It is historically established that Article III’s requirement that United States Supreme Court justices’ good behavior standard is pro forma only. Such instances as a former slave owner, Chief Justice Roger Taney in 1857, deciding slave Dred Scott had no rights that needed to be protected or a majority of Republican appointed justices deciding Republican George W. Bush “won” the presidency in 2000 are simply winked at.

The remedies for our nation’s possibly fatal illness of public loss of confidence in the Court may be painful and difficult to endure, but the alternatives are worse. The impeachment of all justices for every breach of decorum would be wrong, unfair and impractical. It would also not solve our problems.

But if Congress truly wishes to put the balance back in our democracy, I suggest we first institute term limits for justices. Our presidents can serve only 8 years. Perhaps a 10-year term for justices would be workable. Also, federal judges are now nominated by the President and confirmed in the Senate. Why not implement a democratic system for all federal judges so that all citizens, not just a select elite few, would have the right to help choose those whose decisions can affect us all? Of course, such changes will require much thought and input, but all serious illnesses should.

In other words, instead of continuing to complain as we avoid the hard choices, let’s choose the harder right instead of continuing to fly false flags that only apply band aids.

Photo by Peg Redwine

Sound And Fury

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Photo by Peg Redwine

William Shakespeare could have been describing Congress instead of life when he wrote:

“It is a tale told by an idiot, full of sound and fury signifying nothing.”

Macbeth (Act 5, Scene 5)

The U.S. Congress has assumed for itself the role of ethics advisor to the U.S. Supreme Court. Congress is so upset about recent Court decisions it is demanding that the Court adopt a binding code of judicial conduct (the U.S. Supreme Court has none now). Congress as the arbiter of Court morality brings forth an analogy of Jezebel as the paragon of Babylon.

It is not that the Supreme Court justices have not often acted unethically, it is just not a rational solution to turn to Congress for our relief. Real and permanent reform will not come from Congressional hearings and legislation nor does human nature suggest it will come from within the Court regardless of any ethical rules.

On December 8, 2022 in a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet a representative of the bipartisan Project on Government Oversight testified:

“Every justice who has served in the last decade has done something that has raised questions about propriety and impartiality.”

 Then documented cases of unethical conduct by individual Supreme Court justices were submitted. It did not matter whether it was a darling of the left such as Ruth Bader Ginsburg, Elena Kagan or Sonia Sotomayor or a hero of the right such as Antonin Scalia, Samuel Alito or Clarence Thomas, all had been found wanting. Of course, had anyone investigated the members of Congress during the past decade the results would have been similar.

Both Congressional members and members of the Supreme Court seem to become surprisingly wealthy on their rather mundane salaries. Perhaps they are all just frugal. Or maybe it is just my envy of such “good luck” as Sonia Sotomayor had in earning three million dollars on her book when I, as a writer myself, am still selling out of my car’s trunk one book at a time instead of having my old court staff hawking them or me. Also, Peg and I would most likely have enjoyed a cruise on Clarence Thomas’ friend’s yacht.

However, the real issue is not are the justices being unethical, of course they sometimes are; most humans are at least sometimes. It is only sin if seen through the eyes of someone who disagrees with a justice’s judicial philosophy. Ginsburg was a saint and Ketanji Jackson is becoming one as far as liberals are concerned. Scalia was a contemporary John Marshall and Samuel Alito has an ermine robe in the eyes of conservatives, But Gentle Reader, they are just as you and I, human and opinionated; that is why they were nominated and confirmed by politicians.

 If you have read several of the more than 1,000 columns I have written and published since 1990, you may recall I have often called for Court reform. If Congress truly wishes to “do good”, they should amend our Constitution and devise a system of democratically electing federal judges who do not have life-tenure. Please, members of Congress, stop posturing from the right and left and legislate for the good of all of us. After all, we finally ended slavery and gave women the right to vote. Our 28th Amendment to the Constitution might help preserve our democracy instead of just shouting fire while we watch the Supreme Court burn.

It Is Time

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Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”

Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.

Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.

In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.

Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.

Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.

Whose Peers?

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Former United States President Donald Trump was indicted by a federal grand jury June 8, 2023 in Florida. Trump is entitled to have the charges tried by a jury selected from the state of Florida. CNN and MSNBC are complaining that the prosecution, the federal government, cannot receive a fair trial in Florida, especially before U.S. District Judge Aileen Cannon who is currently assigned to try Trump’s case. Cannon was appointed by President Trump, which is just fine with FOX News.

One way to assuage the fears of some cable news anchors is for Special Prosecutor Jack Smith to have Trump indicted by a grand jury in New Jersey or perhaps Washington, D.C. Trump possessed government documents in both places, both as president and former president. Either jurisdiction would eliminate Judge Cannon and, theoretically, provide a jury pool more favorable to the government and more anti-Trump.

Of course, the appointed judge concern could be remedied by enacting my repeated recommendations for all federal judges to have term limits and to be chosen in fair and free elections. Alas, those pleas have so far been drowned out by the cacophony from the mis-named merit-selection voices. Therefore, we will currently have to deal with our highly political and extremely anti-democratic system of having our federal judges chosen in smoke-filled rooms and the oval office. So, let’s stick with the jury selection issues for Mr. Trump’s case or possibly cases if Jack Smith decides to hedge his bets and bring charges in more government friendly climes than Florida.

To me, our fears should be of potentially fatal damage to our democracy from a country that may have lost sight of how critical public faith in our legal system is. We know there is already great cynicism about our executive and legislative branches. Our constitutional three-branch balancing act relies on faith that when the Presidency and Congress ooze near the abyss, a public belief in a fair, just and independent judicial branch can keep us from teetering over.

One of America’s earliest jury trials illustrates how this fragile system should work. In the 1730’s when we were still British subjects, John Peter Zenger who published The New York Weekly Journal, publicly criticized colonial governor William Cosby who had Zenger arrested. At a jury trial, Zenger’s attorneys persuaded the jury to “nullify” the existing written law and acquit Zenger. Zenger’s peers defied the government. Such action by a Florida jury is the concern of some. What such commentators suggest as a fallback plan is to have Trump tried elsewhere and in front of some judge other than Eileen Cannon.

This Gordian Knot dilemma is what we as a country are experiencing when, for the first time in history, the currently in-office executive branch seeks a jury trial of a former head of the same branch. Such a crucible has all the possible national angst of fire and brimstone speeches from legislators, castigation of all three branches by media pundits, polemics at thousands of taverns, coffee shops and perhaps even religious or educational institutions.

There may be allegations of Star Chamber proceedings, Joan of Arc’s burning at the stake, or even the trial of Jesus. It will be a wild ride but, as long as we do not lose sight of what’s really important, that is Prince Harry’s and Meghan’s travails, as soon as the football season returns, we will be okay.

The Scarlet Bills

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Congress is demanding a code of ethics for the U.S. Supreme Court. So is the national news media. Congress and the media may not see eye to eye on much but they do agree that the Judicial Branch should be controlled by the Legislative Branch. It appears the ideology of Israel’s Prime Minister Benjamin Netanyahu has infiltrated the American Garden of Eden with a poisoned pome and Congress is champing to chomp.

Congress teaching ethics to the Supreme Court is like Helen of Troy teaching matrimonial loyalty to Hamlet’s mother. If Congress were medical advice providers we might say, “First heal yourselves.” Be that as it may, there is little doubt the Supreme Court could use some ethical lessons. However, as a separate and equal branch of our three-branch democratic republic, I prefer the courts remain independent even if they sometimes teeter on a fulcrum between questionable personal behavior and unquestioned legerdemain. Such cases as Dred Scott in which the one-time slave holder, Chief Justice Roger Taney who did not recuse himself, decided the Negro Dred Scott had no rights that America’s white society was bound by law to recognize come to mind.

No, Congress should not be looking for the log in the eyes of the Supreme Court but should be initiating a Constitutional amendment that would ensure America’s citizens, not a few highly partisan politicians, would have the choice as to who and for what term judges would serve. I do not know, Gentle Reader, if you have read my numerous columns on electing judges to one fairly short term. I only know for sure that Peg read them because I refused to comply with her many varied domestic demands until she did. However, if by some chance you did read them you know my preference is a truly democratic judicial selection process.

Non-partisan elections of competing, qualified judicial candidates for one 10-year term and life-time pensions are my suggestion. Advice on ethics for anyone from our Congress rings hollow.

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