Special Opinion to the Mirror by Paul Plante
Dear Chief Justice John Glover Roberts Jr.:
Recently, you were widely quoted in the media your capacity as Chief Justice of the United States saying as follows, to wit:
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
End quotes
As a loyal American citizen who is older than you, and who has sufficient experience with the federal court system as a civil rights litigant to have formed an informed opinion about it, and who in fact has been harmed, and intentionally so, by the federal court system you have chosen to defend in your recent op-ed, I would like to take this opportunity in this op-ed to challenge both of those statements, to show that they are not true, and are in fact, quite false.
First of all, Justice Roberts, yes, we do have Bush judges and Obama judges, as we can clearly see from an Associated Press article entitled “Obama pick for bench blocked by GOP for first time” by Larry Margarsak on May 19, 2011, as follows:
WASHINGTON – President Barack Obama lost his first vote on a judicial nominee Thursday, as Senate Republicans derailed the nomination of a liberal professor who leveled acerbic attacks against two conservative Supreme Court nominees — both now justices.
Democrats fell short of the 60 votes they need to end a filibuster and give Goodwin Liu an up-or-down vote on his nomination to the San Francisco-based 9th U.S. Circuit Court of Appeals.
Liu, a 40-year-old legal scholar at the University of California’s Berkeley law school, could someday be a dream Supreme Court nominee for liberals.
Republicans have made Liu their prime example of a judicial nominee who, in their view, has been so unabashedly liberal in his writings and statements that he does not deserve an up-or-down vote.
The politics were reversed in 1987, when Democrats defeated Republican Supreme Court nominee Robert Bork by citing his conservative writings.
Liberals said Bork was a conservative extremist, just as conservatives now say Liu is a liberal extremist.
In both cases, opponents argued the nominees would take their views with them to the bench, allowing those views to trump the Constitution.
To most Democrats and liberal backers, Liu is the type of nominee they want for a lifetime appointment on the federal bench.
He supports liberal social issues such as gay marriage and affirmative action.
To most Republicans and conservative allies, he’s a judicial activist who made insulting remarks about the Supreme Court nominations of John Roberts, now the chief justice, and Samuel Alito.
Two senators favoring a continued filibuster were Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C.
“The nomination of Mr. Goodwin Liu does rise to a level of extraordinary circumstances and therefore McCain will seek to filibuster the nomination,” McCain’s office said in a statement Wednesday.
Graham said:
“His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue.”
“Goodwin Liu should run for elected office, not serve as a judge.”
“Ideologues have their place, just not on the bench.”
Republicans and conservatives believe Liu expressed his true judicial philosophy in a radio interview after Obama’s election.
He said then that liberals “have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”
Liu had said Alito’s vision was an America “where police may shoot and kill an unarmed boy … where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance … where the FBI may install a camera where you sleep … where a black man may be sentenced to death by an all-white jury for killing a white man, absent … analysis showing discrimination.”
Writing about the chief justice as a nominee, Liu said that “with remarkable consistency throughout his career, Roberts … applied his legal talent to further the cause of the far right.”
End quote
So there we clearly have an Obama judge.
As to a Clinton judge, we have the Congressional Record Volume 150 Number 7 from Wednesday January 28, 2004), the Senate, Pages S304-S307, EXECUTIVE SESSION – NOMINATION OF GARY L. SHARPE TO BE UNITED STATES DISTRICT JUDGE, as follows:
The PRESIDING OFFICER. The junior Senator from New York.
Mrs. CLINTON. Madam President, I rise in very strong support of the nomination of Magistrate Judge Gary Lawrence Sharpe who has been nominated to the United States District Court for the Northern District of New York.
I ask all of my colleagues to support this nomination.
I think he will not only serve with distinction in New York but demonstrate clearly that this is the kind of conservative Republican nominee whom we could be unanimously confirming.
I commend him to the Senate.
I thank the Chair.
End quotes
And as to a Bush judge, we have as follows from USA Today, to wit:
“Bush’s Judges Already Making Their Mark”
By Nancy Benac, Associated Press Writer
July 10, 2005
WASHINGTON – No need to wait until President Bush appoints a Supreme Court justice to see how he will make his mark on the federal judiciary.
One level down, dozens of conservative appeals court judges appointed by Bush already are helping to shape the law in ways that ultimately could have as much, and in some ways even more, impact than the nine justices of the nation’s highest court.
Since Bush’s appellate judges have only gradually taken their seats on benches around the country, and the cases that they draw run the gamut, it’s still early to chart their impact on specific issues.
But already it is clear that these judges make up a solidly conservative crowd that tends to lean Bush’s way on the big issues of the day.
So far, Bush’s appointees to the appeals court are showing patterns very close to judges of his Republican predecessors in ideologically contested cases, according to law professor Cass Sunstein at the University of Chicago, where the Chicago Judges Project is tracking the federal judiciary.
“When the president talks about strict construction, everyone knows what he’s talking about.”
Overall, in his four-plus years in office, Bush has pushed a Republican-leaning federal judiciary farther to the right with more than 200 appointments to appellate and district courts.
By the end of his second term, Bush could eclipse Presidents Clinton and Reagan in the number of judges selected — and leave an ideological imprint on the courts for generations to come.
Since 1968, when Nixon was elected, Republican presidents have appointed 1,040 judges; Democrats have named 625.
While many of the Bush appointees are replacing jurists named by previous Republican presidents, toward the end of his term Bush could have more opportunities to replace some of the Clinton judges, which would have even greater impact.
The cumulative effect, said political scientist Donald Songer of the University of South Carolina, is that “the last three Republican presidents’ nominees control virtually the whole judiciary.”
People for the American Way, a liberal advocacy group, titled its 2004 study of Bush’s judicial appointees “Confirmed Judges, Confirmed Fears.”
It concluded that Bush appointees already have moved to limit significantly congressional authority and protection of individual rights.
“For many, many of the nominees in the lower courts, the Bush administration has been decidedly pushing toward judges with a pretty firm right-wing ideology,” said Elliot Mincberg, the group’s legal director.
Wendy Long, counsel for the conservative Judicial Confirmation Network, said that when it comes to the courts, Bush “gets it” in a way that even his father and Reagan did not.
His nominees “understand the problems with the way the Constitution has been interpreted and will go about fixing that in their own decisions,” she said.
End quotes
You may not want us to think or believe that federal judges are as political as all get-out, Justice Roberts, and some or many in this country might be naïve or gullible enough to believe you when you say “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” but it very much seems as if the United States Senate and the media in this country along with court watchers like myself do not believe you, nor frankly, should they.
And there I will leave off for the moment.
In my next installment of this open letter, I will come back and deal with your assertion that “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” to demonstrate the falsity of that statement, as well, and in the meantime, you have yourself a very nice day, and oh, yeah, Justice Roberts, be sure to take a minute of your time to thank a veteran for your freedom.
Paul Plante says
As to the specious premise put forth by United States Supreme Court Chief Justice John Glover Roberts Jr. in his recent op ed attacking Trump, where he said, “(W)hat we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” given that the Supreme Court is an appeals court where aggrieved litigants go to get the justice denied them by lower court judges who did not do their level best to do equal right to those appearing before them, and given that there is a code of conduct for federal judges, which code would not be needed if in fact these federal judges really were an an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, and given that there is a disciplinary process for federal judges, as well, it is obvious that the premise is absurd.
If what we have for federal judges, who are appointed by politicians, is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, then it stands to reason that we would not be reading in a New York Times article by Benjamin Weiser on January, 28 2011 as follows:
A federal appeals court in Manhattan overturned a six-and-a-half-year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography because of an as-of-yet undiscovered gene.
The judge, Gary L. Sharpe of Federal District Court in Albany, was quoted as saying, ”It is a gene you were born with.”
“And it’s not a gene you can get rid of,” before he sentenced the defendant, Gary Cossey, in December 2009.
A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, ”It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics.”
Judges Amalya L. Kearse, John M. Walker Jr. and Rosemary S. Pooler ruled that a sentence relying on findings not supported in the record seriously affects the fairness, integrity and public reputation of judicial proceedings.
The panel ordered that Mr. Cossey be resentenced by a different judge, a step it said was taken only where a judge’s fairness or the appearance of fairness was in doubt.
This is one such instance, the panel said.
end quotes
So, if, as United States Supreme Court Chief Justice John Glover Roberts Jr. wants us to believe, District Court Judge Gary Sharpe is a member of an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, it is quite obvious that the level best of Hillary Clinton Conservative Republican District Court Judge Gary Sharpe in that case was no damn good, and that is that, and there is nothing United States Supreme Court Chief Justice John Glover Roberts Jr. can say, no sophistry he can offer, to change that reality.
In another case in 2005, this same Hillary Clinton Conservative Republican Judge Gary Sharpe of the federal Northern District of New York buried evidence, and then blatantly lied in a decision he rendered, so as to protect endemic public corruption in New York State.
As to judicial misconduct, only recently, the Washington Post (“Democracy dies in darkness”) had an article entitled “Roberts refers judicial misconduct complaints against Kavanaugh to federal appeals court in Colorado” by Ann Marimow and Tom Hamburger on 11 October 2018, as follows:
Chief Justice John G. Roberts Jr. on Wednesday referred more than a dozen judicial misconduct complaints filed recently against Brett M. Kavanaugh to a federal appeals court in Colorado.
The 15 complaints, related to statements Kavanaugh made during his Senate confirmation hearings, were initially filed with the federal appeals court in Washington, where Kavanaugh served for the last 12 years before his confirmation Saturday to the Supreme Court.
The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony, according to people familiar with the matter.
end quotes
Now, clearly, if all federal judges were members of an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, that disciplinary processes would never have been necessary, because there would be no need for it where all federal judges were members of an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, which we know from history simply is not true.
Getting back to the Washington Post article:
Last month, a judge on the U.S. Court of Appeals for the D.C. Circuit asked Roberts to refer the complaints to another appeals court for review after determining that they should not be handled by judges who served with Kavanaugh on the D.C. appellate court.
In a letter Wednesday to the U.S. Court of Appeals for the 10th Circuit, Roberts said he selected the court in Colorado to “accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”
The Denver-based appeals court is led by Chief Judge Timothy M. Tymkovich, the former solicitor general of Colorado who was nominated to the bench by President George W. Bush.
The 10th Circuit handled another recent judicial misconduct case from Washington involving the former chief judge of the District Court.
It is unclear what will come of the review by the 10th Circuit.
end quotes
I personally would like to hear United States Supreme Court Chief Justice John Glover Roberts Jr. reconcile the need for that disciplinary process with his statement in his recent op-ed that all federal judges were members of an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
If so, Chief Justice Roberts, why bother to have a disciplinary process in place?
What need would there be for it if your premise were true?
Oh, but wait a minute, people, and look at this:
The judiciary’s rules on misconduct do not apply to Supreme Court justices, and the 10th Circuit could decide to dismiss the complaints as moot now that Kavanaugh has joined the high court.
end quotes
Simply stated, there are no rules on misconduct that apply to United States Supreme Court Chief Justice John Glover Roberts Jr., so he is totally free to feed us whatever bull**** he chooses to, and so he has, which takes us back to the Washington Post, as follows:
“There is nothing that a judicial council could do at this point,” said Arthur D. Hellman, a law professor at the University of Pittsburgh and expert on the operation of federal courts.
Hellman predicted that the 10th Circuit will likely close the case “because it is no longer within their jurisdiction,” now that Kavanaugh has been elevated to the Supreme Court.
Complaints made against judges are usually handled by the chief judge.
Henderson took over from Chief Judge Merrick Garland, who recused himself from the matter.
When complaints were filed in late September and early October, Henderson dismissed some but concluded that others were substantive enough to refer to another judicial panel for investigation.
end quotes
Make note of those words “concluded that others were substantive enough to refer to another judicial panel for investigation” as you consider the premise of Chief Judge Roberts that that all federal judges were members of an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
And once again, back to the Washington Post we go, as follows:
The complaints landed with Roberts because of his role as chief justice of the United States, not because Kavanaugh is now a member of the Supreme Court.
Such complaints are usually confidential unless the judicial council investigating issues a public report about its findings.
The existence of misconduct complaints and the procedure can be disclosed, according to the rules, “when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”
The public nature of a case last year involving former 9th Circuit judge Alex Kozinski, who was accused of sexual misconduct, was unusual.
The chief judge of the 9th Circuit asked Roberts to transfer the case for review after The Washington Post reported allegations against Kozinski.
Roberts referred the case to the appeals court in New York City.
The judicial council of that court publicly announced it was closing its investigation because Kozinski had retired, saying that because he “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated.”
end quotes
And there we have it, people, but not all of it, so please, stay tuned and don’t change that dial!
Paul Plante says
In an Associated Press article entitled “APNewsBreak: Roberts raps Trump for ‘Obama judge’ comment” on 21 November 2018, it was reported as follows, to wit:
Chief Justice John Roberts is pushing back against President Donald Trump for his description of a judge who ruled against Trump’s migrant asylum policy as an “Obama judge.”
The president’s latest remarks come as the Supreme Court is enmeshed in controversy over his appointment of Justice Brett Kavanaugh.
Several justices have spoken out about judicial independence and the danger of having the court viewed as a political institution that is divided between five conservative Republicans and four liberal Democrats.
end quote
But with all due respect, how exactly is it that we are to view the court then, given that it most certainly is viewed as a political institution, and with good reason.
Consider the Marketwatch article “Obama warns Supreme Court on health-care law – U.S. president says hes confident law will be upheld” by Greg Robb on April 2, 2012, as follows:
WASHINGTON (MarketWatch) President Barack Obama on Monday said he was confident that the Supreme Court would uphold the constitutionality of his signature health-care law.
We are confident this will be upheld, because it should be upheld, Obama said in a joint press conference in the Rose Garden with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon.
The U.S. president said it would be an unprecedented, extraordinary step for a majority of the nine justices to overturn a law that was passed by a strong majority of a democratically-elected Congress.
Rejecting the law would be an example of judicial activism, which conservatives like to complain about, he noted, where an un-elected group of people would somehow overturn a duly constituted and passed law.
end quotes
My goodness, people, strong words from Hussein there that sound like a threat to the Supreme Court’s supposed “independence” to me, anyway.
As to a political attack on the court by the cunning and crafty Obama administration, the Marketwatch article continues as follows:
Rick Weissenstein, a health-care analyst for Guggenheim Partners, said Obama had a few goals in mind including reminding people the parts of the bill that are popular.
That way if they lose they can run against the activist Supreme Court and against the Republicans who brought the suits in the first place, Weissenstein said.
end quotes
Clearly, if Obama lost, he intended to do what it is that Democrats do best by whipping up a mob frenzy of howlers and shriekers and screamers against the Supreme court as a means of coercing them to do his will.
As to the overt partisan political nature of the Supreme Court, the Marketwatch article concludes as follows:
Miller Baker, an attorney for McDermott Will & Emery who has argued before the high court, says it seems clear that conservative justices Antonin Scalia and Clarence Thomas will clearly vote to overturn the mandate, while the court’s liberal bloc of justices, Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, will uphold the law.
That leaves Chief Justice John Roberts, Anthony Kennedy and Samuel Alito up for grabs, Baker says.
end quotes
And we are supposed to be stupid enough to believe that idealogues are independent?
How about that for a real silly idea!
Paul Plante says
And seriously, people, when Supreme Court Chief Justice John Glover Roberts Jr. tells us in his op-ed that “(W)hat we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” is he talking through his hat, or just being naïve?
Does he think we are all stupid out here in America and don’t know what is going on, because the people in Washington, D.C. are stupid and don’t know what is going on?
If, as Supreme Court Chief Justice John Glover Roberts Jr. tells us, that what we have on the federal bench is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them, then how do we explain federal judge G. Thomas Porteous Jr. of Federal District Court in Louisiana to our children and grandchildren and friends and neighbors?
For those unfamiliar with G. Thomas Porteous Jr. of Federal District Court in Louisiana, we can learn more about him from a New York Times article entitled “Senate, for Just the 8th Time, Votes to Oust a Federal Judge” by Jennifer Steinhauer on Dec. 8, 2010, where we are informed as follows:
WASHINGTON — The Senate on Wednesday found Judge G. Thomas Porteous Jr. of Federal District Court in Louisiana guilty on four articles of impeachment and removed him from the bench, the first time the Senate has ousted a federal judge in more than two decades.
Judge Porteous, the eighth federal judge to be removed from office in this manner, was impeached by the House in March on four articles stemming from charges that he received cash and favors from lawyers who had dealings in his court, used a false name to elude creditors and intentionally misled the Senate during his confirmation proceedings.
end quotes
So seriously, people, does that sound like someone who is part of an “extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them?”
If he truly was, would he have been impeached and removed from the bench by the Senate?
For the answer to that, let’s go back to the New York Times article as follows:
The behavior amounted to a “pattern of conduct incompatible with the trust and confidence placed in him,” according to the articles against him.
All 96 senators present voted “guilty” on the first article, which concerned his time as a state court judge and his subsequent failure to recuse himself from matters involving a former law partner, with whom he was accused of trading favors for cash.
end quotes
So, people, what clues can we gain from that?
In the face of that, is Supreme Court Chief Justice John Glover Roberts Jr. telling us the truth when he tells us that what we have on the federal bench is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them?
As to who appointed Judge Porteous to the bench, the New York Times informs us as follows:
Mr. Porteous, 64, was appointed to the bench by President Bill Clinton in 1994 and has been suspended with pay since 2008.