Judge Pickering proposes an anti-activist constitutional amendment.

Retired Fifth Circuit Judge Charles W. Pickering, Sr., has this op-ed in today's Washington Times in which he laments that the televised character assassination that the federal judicial confirmation process has become has resulted in over half of those approached to serve in the federal judiciary saying, "No thanks."

Judge Pickering attributes this to "[t]he transfer of all the hot button social issues: Partial-birth abortion, abortion for teenagers without parental consent or even parental notification, same-sex "marriage," references to God in the Pledge of Allegiance, at public buildings, ceremonies and institutions, display of the Ten Commandments in public places, rewriting history to delete all references to a religious motivation in the settling and building of America, and hard-core and child pornography -- are being settled in the courts of our land rather than in legislative bodies." (sic)

I sympathize with Judge Pickering and entirely agree that the transformation of the federal courts into an unelected group of philosopher-kings (and queens), who make social policy under the guise of interpreting a "living" constitution, has resulted in every judicial confirmation becoming a political battle over social issues. The certain knowledge that you will be publicly vilified and personally attacked from the left, right or both, while your friends and family suffer right along with you, is certainly the reason for both the reduced number of highly competent lawyers interested in the federal bench and for the footdragging and outright roadblocks in the confirmation process for those candidates who are willing to serve. Having said all that, his proposed constitutional amendment has some flaws.

Judge Pickering suggests that an amendment be ratified that requires the courts to "interpret the Constitution and amendments in accordance with the common understanding of the relevant provision at the time it was adopted. This amendment does not affect the weight to be given prior decisions under the Doctrine of stare decisis."

Although Judge Pickering's intent seems otherwise, it sounds less precise to me than the primary canon of statutory construction which requires that words in a statute (or constitution) be given their "plain meaning." With respect to the last sentence of his proposed amendment, it also seems to me that if an "originalist" interpretation is constitutionally required, wouldn't that, by definition, trump any weight that stare decicis would have that conflicted with an "originalist" meaning?

If it is going to take a constitutional amendment to return the federal judiciary to sticking to "cases and controversies," perhaps, while we are at it, we could also revisit lifetime appointment of federal judges.

Hat tip to Howard Bashman at How Appealing.

"Fifteen men on the dead man's chest. Yo-ho-ho and some WiFi bandwidth. Aargh!"

This is the first one of these that I have seen but as WiFi spreads, I expect that more and more courts and legislatures will be wrestling with issues like the degree of criminal liability for "pirating" unused and unsecured bandwidth from a public place.

Via the Rockford Register Star.

Why law professors are the way they are.

Via Concurring Opinions comes a link to this post by Michael Livingston on why law professors are so edgy.

An excerpt

I have often marveled at how a group of people with nearly 100 percent job security, writing articles that have no discernible impact on the world outside academia, both work so hard and are so obsessively worried about their standing in the pecking order. The answer is provided by the theory: they behave in this manner because they are doomed to compete, without anyone else to share the responsibility, in an activity in which they can never know whether they have succeeded or even what succeeding might mean. Like musicians singing to an empty hall, or athletes playing in an abandoned stadium, they have only themselves and a few ephemeral signposts--a good law review cover, a visit at a nominally "prestige" law school, what have you--to signal that they are advancing in their quest. It is a bitter fate indeed, although presumably someone has to do it.

I have long done a bit of teaching as an adjunct at a couple of different law schools and I think that Professor Livingston makes an interesting point with one caveat. The law faculty I interact with seem to fall into a couple of categories. One group consists of professors with a mindset that "it is all about turning out good lawyers." In other words, the students come first last and always. The other group seems to consist of professors with an "it's all about me" approach where the focus is simply on demonstrating that you know more about the subject matter than anyone else on the planet and members of this group seem to me to be indifferent to whether anyone actually learns anything.

It is when members of this latter group hold forth in the faculty lounge, decrying a colleague's book or law review article, that I am always reminded of Henry Kissinger's classic quote that "University politics are vicious precisely because the stakes are so small."

"You're Sired!"

Only Donald Trump would think this is a page one story but you have to hand it to the New York Post for the the most imaginative front page.

"The name is HOWT. I carry a badge (and drive a Ferrari)."

I think I will start my own police department. I like the idea of a Ferrari as a police car but "Homer's Auto Service" as police headquarters?

Judging the "influences" on judges.

Joel Jacobsen over at Judging Crimes has this thought provoking (at least I found it so) post on the degree to which judges are influenced by their ideology.

Joel's point seems to be that although party ideology as such, has "zero" impact (to quote Justice Bryer on the same topic). Joel suggests that other "interests" are the real influences on a judges decisionmaking process. These "interests" include everything from outright bribery and delight in exercising raw power to more subtle influences such as friendships with the lawyers or identification with the types of clients the judge represented before going on the bench.

Joel's conclusion:

Electoral politics doesn't explain why judges' behavior tends to fall into predictable patterns. Conspiracy theories are just preposterous. The answer is hiding in plain sight: judges promote their own interests and gratify their own feelings and appetites, just like you [and me].

I guess I shouldn't be expected to agree with his conclusions but he raises some points that caused me to do a little soul-searching.

First of all, I agree with Joel and Justice Bryer that partisan politics plays no role in the outcome of decisions although I am sure that there are places where the exception proves the rule. Moreover, there have been and will be some (hopefully few) judges, in this country and elsewhere, who are willing to put their fingers on the scales of justice for a litigant who first crosses their palm with silver. Obviously judges who would do such a thing should be kicked off the bench, disbarred, drawn and quartered and shot, not necessarily in that order. The other "interests" Joel lists are a bit more subtle and deserve more thought.

Judges clearly have a lot of power and we can all agree that those with power should not abuse it. With power comes responsibility and again, given that there are clearly always exceptions (the black robed megalomaniacs who think that the light in the refrigerator only comes on for them), most of judges I have seen over the last 30 years, seemed to me to take the responsibility of their office and thus the exercise of their power very seriously, whether I liked the result in a particular case or not. That doesn't mean that the person who lost the case or their lawyer, might not feel otherwise but I'm striving for objectivity here. The identification influence Joel mentions is more subtle and probably does play a role at some level. Clearly, such "influences" can and sometimes do rise to the level of a judicial "agenda." The influences may also be counterintuitive. For example, in my experience some of the best examples of "hanging judges" in criminal cases used to be criminal defense attorneys or public defenders. Likewise, some of the most "liberal" criminal judges I know, used to be silk-stocking corporate lawyers.

Cases have a lot in common with works of art. Sometimes everyone who looks at the painting or sculpture sees the same thing and sometimes they don't. I guess, my contribution to this discussion is simply to note that inside those robes are men and women who are human and thus fallible, no matter how hard they might try to be otherwise. They come to the bench with the sum of their life experiences and whatever those were, they probably have some unpredictable measure of influence on their analysis, even if they don't dictate the outcome. Hopefully we might be able to agree that the measure of a good judge ought not be whether they are pre-disposed to identify with one party or the other without knowing anything about the facts, the law or the issues. So, for example, is it really fair to assert that just because before they became a judge, a lawyer represented the interests of a certain class of clients whether they were corporations, a public interest group, indigent defendants or was a prosecutor, that as a judge they will continue to do so? I don't think lawyers necessarily represent their ideology when they represent a client, although I'm sure that it is sometimes, maybe even often, the case. From my own experience, I do know that being a judge requires a quite different mindset from that of an advocate and that you don't make that transition overnight and you have to work at it until you do.

I don't know if it was intentional, but one of the attributes of appellate courts which ameliorate the effects of such "interests," is the collegial nature of the court. No single judge can make a decision on an appellate court. It takes at least one other judge to get it right or get it wrong. Many appellate courts, including my own, are made up of judges from all manner of legal backgrounds. Some were trial judges others were not, some were ivory-tower law professors who had little or no experience dealing with a client, others were lawyers with an office practice who actually know what a client looks like but never had to represent one in court, others such as myself, were civil and/or criminal trial lawyers and have an appreciation for how the law plays out "in the trenches" of an adversary proceeding. I think if you get a mixture of such people, the whole is often greater than the sum of the parts and "influences" such as Joel describes, while not eliminated, are certainly diluted.

In the final analysis, no judicial selection process is completely apolitical nor will you find capable people to be judges who weren't formed in the crucible of what life handed to them in the course of 30, 40 or 50 years. I don't think that the type of law an attorney practiced is a particularly good indicator of how they will perform as a judge. I do think knowing a lawyer's work ethic, personality and professional reputation on behalf of his or her clients, is.

A judge to be proud of.

As part of the 1995 peace settlement in the parts of the former Yugoslavia known as Bosnia and Herzegovina, those countries, under the auspices of a High Representative of the European Union, have set up a "Court for War Crimes, Organised Crime, Economic Crime and Corruption."

Why do I care about this? Because back in August, my former professor, colleague, and still my friend, Judge Richard S. Gebelein, retired from the state bench and took a two-year appointment as a judge of this unique court.

I heard from him recently and he tells me that although he misses being away from his family, it is very interesting work and he is enjoying it except for the death threats and bodyguards that go with the job (apparently they started bringing in "international" judges from other countries because local judges who refused to acquit some defendants kept getting killed along with their families).

I vacationed in Croatia and Bosnia in 1980 (before the war when it was all just one big Yugoslavia) and visited Sarajevo and Mostar. Bosnia is a beautiful place and will be even more so when they finish rebuilding from the war. Judge Gebelein tells me that unfortunately, Sarajevo the capital and the place he holds court, still largely looks like Berlin immediately after WWII.

Sometimes being a judge requires real courage. This is a job that needs to be done so hang in there Rich, you make me proud to know you.

Verizon, can you hear me now? Good, because I'm outta here!

I finally decided to replace my aged cell phone and after checking out the various models on the market now, I was immediately struck by the looks, size and features of the Motorola Razr. Motorola advertises that this phone has Bluetooth connectivity and can download ringtones, wallpaper and synchronize your calendar and address book through either a Bluetooth connection or through a USB cable connection with your PC.

I have been a Verizon customer since they first got into the cellular phone business and I have been happy with their network coverage and (up until now) their customer service.

Fortunately, before actually buying this phone, I learned that despite settling a class action suit, Verizon still deliberately cripples many of the features on all the phones they sell (while still charging the same price other carriers charge for an uncrippled phone). The only Bluetooth feature they don't completely disable is the ability to connect to some, but not all, handsfree Bluetooth head sets (coincidentally you can only reliably connect to headsets sold by Verizon). What you cannot do with these Verizon phones but can do with the same phone sold by any other carrier, is to get ringtones and wallpapers from your PC, download pictures you take with the phone to your PC for printing, download video clips and movie trailers and transfer data files between your PC and phone.

You can still do all of these things through Verizon - in fact, the only way you can do them is through Verizon. You just have to pay extra per picture, per download or per file to use Verizon's Get it Now, VCast, and Video/Picture Messaging services. Remember now, I am not talking about sending files, photos and such to others, which I don't have a problem paying Verizon for. I am talking about transferring them the length of a USB cable (> 2') or via Bluetooth (> 30') from my home pc to the phone in exactly the way the phone was designed to do by the mnanufacturer.

I mentioned in passing here (additional comment by others here and here) that Verizon had done this and linked here to a transcript of a conversation with an unrepentant customer relations representative who basically expressed the corporate view that they pretty much don't care what their customers think. Here is the party line in corporate speak from Verizon's own, Brenda Raney:

Verizon does business unlike any other carrier, and we make no apologies for that. ... [Those features] don't work with our business model.

Despite all of this, I was still leaning toward staying with Verizon because I thought that although it would be more inconvenient than a wireless Bluetooth connection, I could still get the benefit of the phone's features through a direct USB connection. I was even willing to pay extra for Motorola's Phone Tools and a mini-USB cable - until I read this fine print:

Note: If you are a Verizon customer, all multimedia and internet connection features in this software will be disabled due to carrier request.

This made me wonder why any Verizon customer would bother buying it and it also turned out to be a wakeup call when it suddenly dawned on me that Verizon was counting on people like me who would just "suck it up" rather than switch carriers. It also occurred to me that the other carriers were probably considering similar profit gouging measures and were waiting to see if Verizon paid any sort of price in terms of losing customers.

So, notwithstanding a long and otherwise comfortable relationship with Verizon, I have decided that when my current contract is up next month, I will vote with my feet on Verizon's new attitude toward their customers cattle and take my business to either Cingular or Alltel. Maybe if enough other customers follow suit, Verizon and other carriers will get the message. If they do, I might even consider coming back. In the meantime Verizon, I'm gone.

Never let it be said that Michigan isn't tough on sexual predators!

As reported by the Detroit Free Press here, Thanks to good detective work and DNA testing, Jeffrey Haynes will become the newest member of the Michigan Sexual Offender Registry. He achieved this distinction for sexually assaulting Thelma and Louise, a pair of Calhoun County sheep.

What does Haynes have to say about it:

"Um hmm, ... If I did do it, which I'm saying I'm not, that is a sick person, and if I did do it, I'm sick."

I think I will leave it at that.

Make a note - stash the coke before you press that OnStar button.

Press that little blue button and lose your $50,000 Cadillac, your stash of cocaine, $1900 in cash and probably your girlfriend. Now aren't you glad you subscribed?

He really looks pissed, doesn't he?

This doesn't exactly inspire confidence.

I wonder if they use their own software.

Public pressure returns judge to bench in Iowa.

As the article says, "messing with the funnies is no laughing matter." Judge Parker has been around since 1952 and it looks like he is staying a while longer - at least in Iowa.