With apologies for her extended absence--work flared up like a bad case of hemorrhoids--Article III Groupie welcomes you to "UTR News and Views." This new feature will provide brief squibs about noteworthy news developments, along with commentary from Article III Groupie. Because A3G is so far behind in her news monitoring and reader correspondence, some of the items in this inaugural "News and Views" post may be a little, um, dated. Going forward, however, A3G hopes to bring you the news in more timely fashion, through quasi-regular "News and Views" posts (perhaps on a weekly basis).
And now, here are the desultory news items that A3G has noticed and believes worthy of brief remark, even though they don't merit full-blown posts. She has divided these items into two categories: "Now That's What She Calls News!" and "You Call That News?"
Now That's What She Calls News!
1. Tax court judges can write witty and amusing opinions, overflowing with literary allusions. (If you are at all familiar with tax court opinions, you know that this definitely qualifies as news.)
2. Although state court judges are icky, they do not have a monopoly on misbehavior. Federal judges--the exalted beings that we know and love here at UTR--sometimes behave badly. Consider the following:
(a) As Professor Lubet notes in this piece for the always entertaining Green Bag, federal judges can be abusive towards those who appear before them, engaging in unfair "bullying from the bench." Professor Lubet analyzes certain amusing but perhaps over-the-top comments by Judge Samuel B. Kent of the Southern District of Texas, including the following (taken from this order):
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. . . .
Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.
As many UTR readers know all too well, Judge Kent is not the only federal judge who enjoys bench-slapping lawyers silly. Consider the following choice remarks from a recent order issued by Judge Sam Sparks of the Western District of Texas:
When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.
Frankly, the undersigned would guess the lawyers in this case did not attend kindergarten as they never learned how to get along well with others. Notwithstanding the history of filings and antagonistic motions full of personal insults and requiting multiple discovery hearings, earning the disgust of this Court, the lawyers continue ad infinitum.
One can't help noticing that Judge Kent and Judge Sparks, as well as #1 Judicial Diva Priscilla Owen, are Texans. What is it about the Lone Star State that causes its judges to lash out at litigants? Why is it impossible to order Texas Justice with the judicial sauce on the side?
Alas, due to life tenure, the difficulty of impeaching federal judges, and the (generally) high respect for judicial independence within the federal system, dealing effectively with difficult federal judges is nearly impossible. As John Dean notes in this interesting article, "Thoughts on the Law Addressing Bad Federal Judges," when a "little robed czar or czarina" behaves badly, he or she often gets away with it. Hopefully reforms are on the way; a committee headed by Justice Breyer has been tasked with "evaluat[ing] how the federal judicial system has implemented the Judicial Conduct and Disability Act of 1980." (Yes, sometimes litigants get lucky and a federal judicial tyrant leaves the bench early. But this doesn't happen very often.)
(b) On rare occasions, federal judges behave very badly. Check out this article about Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana, which a UTR reader submitted along with the following commentary:
It is with a heavy heart that I must inform you of the suspected misdeeds of one of our beloved federal judges. . . . The judge in question is one G. Thomas Porteous, Jr. of the U.S. District Court for the Eastern District of Louisiana. Mr. Porteous, you see, is a man who loves living large. He eats at fine restaurants, leases fancy cars, jets off to exotic locales with his millionaire friends, smokes fine cigars, and lives in a lavish home. However, Mr. Porteous does not come from money, nor did he have a lucrative career [before taking the bench], nor did he amass a great fortune in the stock market...
Unfortunately, Mr. Porteous made the tragic mistake of keeping up with the Rockefellers on a [federal judicial] salary. The result was that, in 2001, Judge Porteous filed for bankruptcy. . . . Shameful as that might have been (how dare Congress pay our judges such a pittance!), Mr. Porteous's filing has gotten him into some hot water with federal investigators. The judge's filing revealed that he had close ties with one Louis Marcotte III, a local bail bond magnate at the center of a corruption probe in which sherriff's deputies and judges were given kickbacks in return for promoting Mr. Marcotte's business. Specifically, it appears that Mr. Marcotte paid for Porteous's car repairs and for a new backyard fence while Porteous was--gasp!--a state judge. With friends like that...
Although it's possible that Mr. Porteous could be innocent of these allegations, it would partly sadden me because the judge looks the part. A portly, balding man with oily skin, a Churcillian face, a slick southern
drawl, and ever-present cigar hanging from the side of his mouth, he is a quintissential good ol' boy.
Before I end this missive, I should give you some lighter gossip about the judge. First, the judge openly makes fun of letters and cards he receives from prisoners whom he has sentenced. (Both their lack of grammatical correctness and knowledge of the law are fair game.) Second, although a Clinton appointee, the judge despises Clinton, keeping a cardboard cutout of him in his chambers (presumably to throw darts at). Third, the judge hires interns based more on family connections than academic talent. In talking with all of his interns about how they ended up working for Judge Porteous, their answers usually began with: "Well, you see, my daddy and the judge used to..." (I do not know if this nepotism extends to his clerks, however.)
(c) Finally, sometimes federal judges commit the ultimate sin: they fight with their wives. A UTR reader sent Article III Groupie an interesting piece from the December 26, 2001 issue of the Fairbanks Daily News-Miner (a publication this reader boasts "is read by nearly almost dozens of people"). In "Fight Right for Sake of Marriage and Kids," Judy Kleinfeld-- a professor of psychology at the University of Alaska Fairbanks, and wife of Judge Andrew J. Kleinfeld of the Ninth Circuit--gives readers the inside scoop about her marriage to His Honor:
To the great disapproval of many of my friends, I make it a point to fight with my husband in front of the children. Now I wouldn't fight about just anything in front of the children. But if I am full of righteous rage, and it's time to fight it out and the children happen to be around, I figure: Go for it! Conflict is inevitable in any marriage. Children need to learn how to fight right. Who better to teach them then their own parents, especially if their parents have refined argumentation to a high art? . . . .
Fight it out, fiercely if necessary, but end it before bedtime. Come to a settlement, and call it a day. My husband and I have a time-honored formula for finishing a fight: We look each other straight in the eye, and we shake hands.
3. Although their sheer fabulousness can cause us to lose sight of this fact, federal judges are not immortal. Recently, the federal bench lost two of its most distinguished members. Judge Milton Pollack of the Southern District of New York, who presided over several major financial scandal cases, passed away on Friday, August 13. He was 97. Judge Clyde S. Cahill of the Eastern District of Missouri, a leader in the area of civil rights law before taking the bench, passed away on Wednesday, August 18. He was 81.
4. Occasionally Article III Groupie must cast her lot with the liberals, even though she is a self-professed conservative. In the recent case of United States v. Gementera, Ninth Circuit judges Diarmuid O'Scannlain and Michael Daly Hawkins traded bench-slaps concerning the permissibility of so-called "shaming punishments." In this case, the defendant, a convicted mail thief, was ordered by the district court to stand outside a post office wearing a sandwich board reading, "I stole mail. This is my punishment." Judge O'Scannlain, joined by Judge Eugene E. Siler, Jr. of the Sixth Circuit, affirmed and upheld the punishment. Judge Hawkins dissented.
Normally Article III Groupie, if asked to take sides in jurisprudential warfare between a conservative jurist and a liberal one, would side with the conservative. But in this particular case, Judge Hawkins's position has significant appeal. Why? Because of his delectable, federal judicial smack-down of the state courts!
In his majority opinion, Judge O'Scannlain rejected the Eighth Amendment challenge to the punishment in question by noting that "the occasional imposition of [shaming] sanctions is hardly unusual, particularly in our state courts." Slip op. at 10786. Judge Hawkins's response? "There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom." Slip op. at 10790 (emphases added).
Ouch! Methinks the state courts just got bench-slapped! The words "majesty of an Article III courtroom" are music to A3G's ears; she could not have turned a better phrase herself. Indeed, these sound like the words of a UTR reader--could Judge Hawkins be carrying printed out UTR pages underneath his robe? It's not inconceivable--as noted here, rumor has it that UTR has been discussed by Ninth Circuit judges at a recent meeting and over court e-mail.
(By the way, footnote 1 of Judge Hawkins's dissent contains a shout-out to erstwhile Hawkins clerk Dan Markel, who offers his thoughts on the case in this piece for The New Republic. Markel is an associate at the super-elite law firm of Kellogg, Huber, Hansen, Todd & Evans--which, as discussed infra, pays obscene hiring bonuses of $175,000 to the Anointed.)
5. Every once in a while, Supreme Court clerks marry "outside the tribe" of the Elect. Unlike Steven Engel and Susan Engel (née Kearns), two former Kozinski clerks and members of the Elect who married each other (as lamented here), former AK and AMK clerk Chi Tsun Steve Kwok just married 29-year-old engineer Wing-Pin Winnie Kwan. (Click here for their wedding announcement.) Article III Groupie salutes Mr. Kwok for having the courage to marry outside his caste.
Of course, it would have been even more noble for Mr. Kwok to have married a member of the Great Unwashed, i.e., a lawyer, but not a Supreme Court clerk. If one of the Anointed marries a non-lawyer, he can explain the decision away by saying, "Look, I didn't want to marry another attorney. After all, each year I already spend thousands of hours immersed in the law." But Article III Groupie will take what she can get!
6. When Stars Collide: One of Article III Groupie's fantasies become reality earlier this summer when a hip-hop superstar and a federal judicial superstar were seen in the same room, breathing the same air. Outré female rapper Lil' Kim, indicted on federal perjury charges, was bench-slapped back in June by Judge Gerard E. Lynch of the Southern District of New York (click here for the E! Online news story). The brilliant Judge Lynch, a former Columbia Law School professor and a member of the Elect (he clerked for Justice Brennan), denied the diminutive diva's request for permission to leave the country in order to perform at a concert in the Caribbean. Her lawyer argued that she was less of a flight risk due to her status as "a well-known performer," but "Big G." Lynch rejected the argument, putting "Lil' Kim" in her place: "Just because you're a celebrity doesn't mean you don't jump bail and leave the country."
Wow--Article III celebrity sometimes can trump pop culture celebrity. That's definitely newsworthy!
You Call That News?
Having given you "all the news that's fit to print" in "Now That's What She Calls News," A3G now provides you with a few "news" items that aren't exactly news, at least not to A3G.
1. Compensation levels for the Elect have reached ridiculous levels, with hiring bonuses for the Elect going as high as $175,000 at D.C.'s muy prestigioso Kellogg Huber firm. Thus, in her first year after hangin' with Ruth "Bling-bling" Ginsburg, a member of the Anointed can earn over $300,000, as reported here by Tony Mauro, the Liz Smith of One First Street. (Article III Groupie's number two dream job, after "federal judicial diva," is that of "Supreme Court gossip columnist.")
2. Folks emerging from that steaming pile of prestige otherwise known as the Solicitor General's office are capable of getting good jobs.
3. For all of you aspiring law school deans who didn't get the memo, a Supreme Court clerkship is now required in order to be the dean of a top 10 law school. As noted here, 35-year-old David W. Schizer, a former law clerk to Judge Kozinski and Justice Ginsburg, has just been selected as dean of Columbia Law School.
The article notes that three other top law schools recently promoted young scholars to serve as their deans. The article fails to note, however, that all three are among the Anointed:
(a) Elena Kagan, 44, the new dean of Harvard Law School, clerked for Judge Abner Mikva of the scrumptious D.C. Circuit--a court to which Kagan herself was nominated in 1999 by President Clinton (her nomination expired in 2000)--and then Justice Marshall.
(c) Richard Revesz, 46, the new dean of New York University Law School, clerked for then-Chief Judge Wilfred Feinberg of the Second Circuit, followed by Justice Marshall (three terms before Dean Kagan).
4. The Fourth Circuit is a pretty conservative court, in large part due to the efforts of Senator Strom Thurmond (R-S.C.), who recently passed away, as noted in this article, "How Two Senators Molded a Court."
Okay, that wasn't exactly "news," was it? (UTR's next breaking news bulletin: "President Reagan--He Dead!") But the article contains some interesting tidbits, including information about the close, almost paternal relationship between the late Senator Thurmond and Fourth Circuit Judge William W. Wilkins, who served as an aide to Thurmond, directed one of his campaigns, and spoke at his funeral. The article also mentions the friendship between Thurmond and South Carolina Democrat Marshall B. Williams, the father-in-law of Fourth Circuit judicial hottie Karen J. Williams. Marshall Williams and Strom Thurmond had double dated when they were younger, and Marshall Williams "always had to drive because Strom needed both hands in the back seat," if you catch our drift.
While we're talking about the libidinous late senator, would anyone be surprised to learn that Stroum Thurmond was once a state court judge, with a little bit too much going on "underneath his robe"? Check out this article, which reports the following:
[Strom Thurmond] was the only circuit court judge in South Carolina history to have had sex with a condemned murderess as she was being transferred from the women's prison to death row. This was Sue Logue, the only woman in the state ever to be sent to the chair, but not before she'd been sent to the back seat of Judge Thurmond's car for a lively final ride.
It was a particularly bloody murder case that had begun when Mr Logue's calf had been kicked to death by some other feller's mule. Things had escalated from there. Strom was said to have had a soft spot for Mrs Logue, whom he'd hired as a teacher back when he was school superintendent. She didn't meet the minimum qualifications for the post, but she was said to have had unusual "vaginal muscular dexterity".
5. Not much has changed since the days of Judge Thurmond: state court judges are still ghetto. Consider the sorry tale of Justice Gerald P. Garson, a New York matrimonial judge. Justice Garson--who has been charged with taking bribes from a divorce lawyer, in return for deciding cases in the lawyer's favor and referring clients to him--was captured on surveillance tapes apparently accepting cash and rigging cases, as reported here by the New York Times. In addition, as recorded on the tapes, Justice Garson apparently stated, "I don't give a shit [about my job]."
6. Speaking of less-than-honorable state court judges, Judge Donald Thompson, the Oklahoma jurist infamous for allegedly using a "penis pump" underneath his robe, is resigning effective September 1. In his letter of resignation, Judge Thompson stated that he "greatly enjoyed" his time on the bench. We're sure you did, Judge Thompson...
Article III Groupie hopes that you found this news update informative. She thanks all of her readers and fellow bloggers who brought the news developments set forth above to her attention, and she asks her readers for their continued assistance in locating items of federal judicial news and gossip. A3G apologizes if this post has been less entertaining than her usual posts, but such is the nature of "news" (which she feels obligated to provide every now and then, given her blog's promise of "news, gossip, and colorful commentary about the federal judiciary").
As you all know, Article III Groupie has several pots on the stove right now. She realizes you are eagerly awaiting her promised follow-up pieces on Kiss Me, Guido and Feed Me, Stephanie Seymour. A3G reminds that you patience is a virtue, good things come to those who wait, and she needs to keep up her billable hours, so she can pay for her next European vacation (plus a few pairs of round-toed shoes with superhigh heels).