Reflecting on the large presence of Latino immigrants in the country, comedian Paul Rodriguez once remarked, “You‘re in America Now Speak Spanish.”

But in Arizona and notwithstanding Paul’s ironic humor, Alejandrina Cabrera, an Arizona Candidate for San Luis, Arizona City Council has had her name stricken from the March ballot by Yuma County Superior Court Judge John Nelson. The reason? Although born in the U.S. and the product of an Arizona high school, Judge Nelson ruled Cabrera wasn’t qualified to run for office because her English language skills were “only a minimal survival range.” So much for the quality of an Arizona high school education when you manage to graduate even if you “No Hablo Ingles.”

And if you’re following the GOP presidential debates, Cabrera has no defense for not adequately learning, as Newt Gingrich says, “the language of prosperity, not the language of living in a ghetto.”

Since 1910, an Arizona Enabling Act has required “that ability to read, write, speak, and understand the English language sufficiently well to conduct the duties of the office without the aid of an interpreter shall be a necessary qualification for all state officers. . . .” Moreover, with an approval of some 74% of the voters, Arizona made English the official language of the state in 2006.

But up until deciding to run for city office in San Luis, Arizona , the mostly monolingual Cabrera had nothing to worry about, especially with the town sitting on the Mexican border in the southwestern part of Arizona. It is 90% Latino.

And by the sounds of it, it’s a place very much like where I grew up, East Los Angeles, California. Like East L.A., you can spend your entire life in San Luis and never have to learn either The King’s English or Newt’s.

As Cabrera explained to the “New York Times,” “You go to market, it’s Spanish. You got to a doctor. It’s Spanish. When you pay the bills for the lights or water, it’s Spanish.”

According to the local paper, Bajo El Sol (Under the Sun to the English monolingual), Judge Nelson’s decision was largely based on the testimony of linguist William Eggeberg who also said there was little doubt that Cabrera has English“comprehension problems.”

As for Cabrera’s campaigning, since it was almost entirely in Spanish, poor English comprehension seemed hardly a drawback. “I speak little English,” she admitted. “But my English is fine for San Luis.”

But this isn’t necessarily another ‘tale’ of judicial unprofessionalism. No, it’s merely a prop allowing me to segue to other interesting bowser news. But not of the shaggy-dog variety.

Eminently companionable, dogs don’t like distance from those they lovingly admire – - – even if it means that most of us are reduced to praying, “Lord Help Me Be The Kind Of Person (My Dog Thinks I Am).”

The Brandling Villa in Newcastle offers a nonalcoholic foamy mixture of malt, hops and meat extract that approximates a brewski quaffed by the two-legged set.

Admittedly, news about Rover and his beer doesn’t have much to do with Rover and his bone in court. Then again, rudeness in a pub can also get you ’86′ed.’  

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[1] In re Maryesther S. Merlo, No. 1 JD 11 (Pa. Ct. Jud. Disc. 2011)

Photo credits: “guard_dog.jpg” by moneysaver67 at morgueFile.com; “Molly and the beer” by Piddleville via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.

Maybe it was because Jim Cramer made a cameo appearance on NBC Television’s ‘The Good Wife‘ Sunday night that I thought of Cramer in light of celebrity chef Paula Deen‘s just disclosed diabetes debacle.

Trolling in entirely different oceans, Cramer and Deen couldn’t be more opposite. But what they have in common are identical chasm-like credibility deficits.

In 2008, just before Bear Stearns tanked, Jim Cramer famously shrieked on his goofy television show, “Mad Money,” “Bear Stearns is Fine!”

“Bear Stearns is not in trouble,” he said. “Don’t be silly… don’t move your money.” A week later Stearns dropped like a rock. Not Cramer’s best moment, worsened only by a subsequent brouhaha with Comedy Central‘s Jon Stewart.

How is Cramer still on television dispensing stock picks and investment advice after that? One word: shamelessness.

So appropriately enough, deep-fried, wrapped-in-bacon Paula Deen, the mistress of mantequilla, who has made her life’s work dispensing fat-laden, over-salted and butter-saturated unhealthy food recipes belatedly discloses she’s diabetic. Ah, the perils of eating your own unhealthy food.

There was also a time I thought lawyers had all but cornered the market in chutzpah. Just last year, there were several instances of audacious attorney impudence. Take, for example, that drug prosecuting Las Vegas D.A. arrested for allegedly buying street corner cocaine or Florida DUI lawyer Mark Gold who the ABA Journal reported filed suit against a Miami strip club “alleging that it charged nearly $19,000 on his credit card in November 2010 when he was too inebriated to enter into a contract.”

Life is full of ‘spin.’ It’s an all too ready convenience to dodge and weave and hem and haw when things get personally uncomfortable. Indeed, Costa Concordia captain Francesco Schettino now says he didn’t abandon ship. He claims he tripped and fell into a lifeboat. And here I’d been thinking that banana peel had only tripped up Phillipine Supreme court Associate Justice Mariano C. del Castillo, another ‘accident prone’ spinmeister.

                                                                                                                So who needs Diogenes when you’ve got cynicism?

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Photo credits: “Quite the mouthful” by Lady/Bird via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution at Flickr.

Indeed, reading their Op-Ed in this morning’s Opinion & Commentary – Wall Street Journal, I thought of the liquefied utterances of red-eyed college students supposedly solving the world’s problems over an all-night keg party.

First, there’s the matter of money. Law schools and their law students are cash cows. As a matter of fact, Law School Economics are such that law schools generate as much as 30 percent of a university’s’ revenues. Think the schools are going to give up all that money?

Second, you have a bunch of well-paid “happy law professors without a sane reason under heaven to upend their fortuitous circumstances. Will law school tenured faculty give up six-figure median pay and work that amounts to almost 400 hours less than the average U.S. employee. Are you nuts?

Then you have the millions of dollars in revenue generated by the law school accrediting body, the ABA. And that’s not to mention the influence and power that the ABA wields over the lawyer body politic.

Fourth, there’s the million-dollar cottage industry that mooches off law school students by feeding off law school survival angst. The industry provides an endless array of neurosis inducing study aids that culminate in overpriced bar exam preparation programs, assuming the students survive the curriculum and graduate.

Fifth, there’s an entire industry of publishers, advertisers, consultants, administrators, top-tier law students and other self-promoting status seekers who live and die by the annual business of Law School Rankings.

And then you have lawyers themselves. More lawyers? As though there wasn’t already a “lawyer glut.” Also see “Data Spotlight: New Lawyers Glutting the Market (Updated).” Lawyers want less competition and fewer not more lawyers. Hurry! Add crocodiles to the moat. Tear down the drawbridge.

And haven’t unemployed and underemployed new graduates spent the past several years vociferously“Exposing The Law School Scam”? And more recently, suing over “Law Schools Who Award a Degree of “B.S.” with the J.D. As They Fudge Post-Graduation Job Numbers“?

And speaking of even more B.S., there’s the sop that somehow “the undergraduate option would improve graduate education by forcing law schools to justify their cost by offering additional benefits.” Since when?

It’s not as though undergraduate schools aren’t already themselves hosing students and their parents with constantly escalating tuition costs. When are those baseless rising college costs going to be justified?

Indeed, without an iota of evidence in support, the most breathtaking assumption offered by Messrs. McGinnis and Mangas is their pollyannaish statement that“lowering the cost of legal education,” causally increases“the supply of lawyers willing to charge lower fees” thereby broadening access to legal services for middle and lower-income consumers.

In all seriousness, what’s needed are realistic solutions to break up the cartel, improve transparency, enhance competition, and truly reform law schools.

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Photo credits: Keg photo by Brian Lane Winfield Moore via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.

But what’s most remarkable about Michael Mercado’s story, as related by Matthew R. Warren in this morning’s New York Times, is his positive outlook on life. Despite all the personal, emotional and physical pain he’s endured in his young life, Michael forges ahead.

His last operation was this past summer. He’s now back in school studying to be an auto mechanic. “Keep going” is what he believes.

His positive life outlook reminds me of what another remarkable and inspiring 20-year old also believed. Bryce Gillies died in a tragic accident at the Grand Canyon in July 2009. But before he died, on his smart phone, one of Bryce’s final messages was, “Life is good whether it is long or short.”

Michael Mercado isn’t looking backward nor is he pondering the hand that life has dealt him. Instead, he’s looking ahead at what life has yet to offer.

In May 2004, the New York Times asked,“When Does Flexible Become Harmful? ‘Hot’ Yoga Draws Fire.” Physicians warned then that “exercising in heat 2 to 7 degrees above the body’s core temperature of 98.6 can be dangerous.” And if you smoked, had high blood pressure or couldn’t reach your back pocket, dehydration wasn’t the only thing to worry about.

The debate over the risks vs. benefits of yoga has started anew. Several days ago, the New York Times Magazine ran a report quoting 40-year yoga teacher Glenn Black that yoga’s likelihood of harm is so great that “the vast majority of people” should give it up.

On Wednesday night, devotees must’ve felt like untwisted pretzels when NBC‘s Nightly News ran a follow-up. “Can yoga wreck your body?” even featured a sports medicine and spine specialist, Dr. Jennifer Solomon, saying she’s “seen a ton of yoga injuries.”

“Om” not “Owie!“

There’s a reason people risk “ouch” to seek “Om.” Despite the ‘owies,’ Yoga has remained popular because as the television report said, it’s an “antidote to stress.”

Coincidentally, a just released American Psychological Association survey says that stress is down and at its lowest point in 4 years. However, 2/3rds of survey respondents still consider “work” as“somewhat or very significant” – - – second only to “money” as one of the top 10 stress causes. No surprise. This is consistent with studies on“Why Americans hate their jobs.”

In 2007, Gallup found that 77% of Americans hated their jobs – - – up from over 60% of respondents who answered the same way 20 years earlier. See “Three signs of a miserable job.”

But as explained in Sharon Jayson’s USA Today article, “Americans are stressed, but we’re getting used to it,” the most likely reason stress has gone down is “because stress has become the new normal for life in the USA.”

Or as Steve Taylor nihilistically sang,“Life unwinds like a cheap sweater. But since I gave up hope I feel a lot better.”

Lawyers and stress.

There’s little doubt, though, that among the 70% saying that work causes them stress, a fair number are lawyers. See, for example,“Stress Management for Lawyers” and “Stress Management – An Ethical Issue in the 21st Century” and “Stress and Impairment of Attorneys.”

But of those “Lawyers Who Practice Stress-Reduction Techniques,” I don’t know how many are into yoga. Since so many lawyers are hidebound traditionalists, yoga’s probably not as commonplace unless they’re all keeping it a secret.

I remember one lawyer a number of years ago who was into yoga. I found out inadvertently. He was opposing counsel in a Title VII case. The day he took my client’s deposition, he surprised me when he unexpectedly signaled an earlier-than-expected end of the deposition.

Nevada is one of the many state jurisdictions that doesn’t expressly limit the duration of a deposition, that is, short of obtaining a protective order. But since Title VII cases are brought in federal court, the Federal Rules of Civil Procedure apply and specifically, Rule 30 (d) (1), which thankfully provides, “Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”

So when defense counsel abruptly signaled he was wrapping up, it was, he told me, because he had yoga that afternoon. I realized then why, unlike other employer defense hard-asses, he was so affably mellow.

But this experience notwithstanding, given the ongoing prevalence of attorney incivility, I wonder how many others are doing ‘the Crane’ (Bakāsana) or ‘the Crow‘ (Kākāsana) after work. Probably not many, given the documented incidences of depression, stress and substance abuse in the profession, see e.g., Lawyer Assistance Programs Lawyers and the Practice of Therapeutic Jurisprudence and Lawyers Helping Lawyers.

No, the chances are more likely that instead of yoga and risked hyperflexion of the neck, stress relief may instead mean an Ichabod Crane or a shot of Old Crow.

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Photo credits: Yoga posture halasana by Joseph RENGER via Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;

In March 2010, I posted “Wyoming’s cowboy ethics good for lawyers, too” opining that lawyers might learn a thing or two from the Wyoming State Legislature’s adoption of an “Official State Code” modeled on a romanticized cowboy ethos and the set of rules they supposedly live by.

But a few days ago, I finally caught up with another Wyoming story. Unfortunately, this one misidentified the parties. And consequently, it didn’t put Wyoming cowboys in as good a light as did that 10 point State list of aspirational life rules.

“The Further Adventures of Germ Girl” noted that the Wyoming Department of Health had issued a report of Campylobacter illnesses after two sheep ranch workers had fallen ill from castrating lambs by biting their testicles off with their teeth.

Nothing like a helping of C. jejuni bacteria with some faux manliness – - – even if this isn’t Wyoming’s supposed reason why “men are men and the sheep are scared.”

The Wall Street Journal‘s Health Blog also carried the story at “CDC: Castrating Lambs With Your Teeth May Make You Sick.”

Now I’m not going to delve into the missing merits of such stupid machismo or into the poetic justice of contracting diarrhea, nausea, and fever-inducing campylobacteriosis after mistreating a helpless animal this way.

Photo by Vincent Diamante

In my previous rural No. Nevada life, there were several Basque restaurants in the area. A serving of so-called mountain oysters was easy to find – - – had I ever acquired a taste for a plateful of deep-fried bull calf testicles. But thankfully, I never did see lamb fries on any menu nor did I ever hear of any cowboys biting them off the lambs with their teeth.

But here’s the thing. Well before those two cowboy hat wearing sheepherding amigos in “Brokeback Mountain,” some folks have held the mistaken idea that sheepherders are cowboys. [1] But to be precise, sheep tending does not a cowboy make, anymore than standing in a pasture makes one a Hereford – - – even if the two drifters in Ang Lee’s award-winning film also coincidentally happened to be in Wyoming like the two campylobacteriosic sheepherding ball-biters.

The dictionary defines Cowboy as “a man who herds and tends cattle on a ranch, especially in the western U.S., and who traditionally goes about most of his work on horseback.”

Some may think this a small thing, a nuance. But it’s well-settled out West and consistent with the views, for instance, of renowned Montana artist, former cowboy Benjamin C. Steele who of his late cattleman father said, “My father wouldn’t raise sheep, he was a cowboy, he raised cows.”

So when “High Country News” carried the story at “Do not sink teeth into animal testicles,” they got it wrong when they referred to the two men working on a Wyoming sheep ranch as “cowboys.” And besides, under the State Code, had they really been Wyoming cowboys, they’d have known they were in violation of Rule #10,“Know where to draw the line.” 

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[1] See, for example, Brokeback Mountain – Movies – New York Times noting the “heartbreaking story two cowboys who fall in love almost by accident” and The Guardian’s John Patterson discussing the film “featuring Heath Ledger and Jake Gyllenhaal as cowboys” in “Way out west.”

I don’t completely blame Kentucky lawyer Wm. T. (Bill) Robinson III for recently uttering such manifest cluelessnes. He was basically saying shame on you for still falling for the mythology of the stratospherically paid legal profession.

A lawyer for almost 40 years, Robinson’s a product of his age, his times, and of his insular card-carrying high brow membership in a Big Law 450 attorney regional firm.

Still, he might as well be one of those annoying party-pooping scolds lecturing ‘young ‘uns‘ at the dinner table on how good they have it now compared to back in their day.

But in not entirely faulting Robinson for his callousness, that’s not to completely excuse the tactless insensitivity. From his mouth but not to God’s ears did spew forth 2012′s first breathtaking display of “Qu’ils mangent de la brioche” — the arrogant indifference of “Let them eat brioche.”

Robinson was recently interviewed by Reuters and of the masses of out-of-work or underemployed and universally pissed-off disenchanted young lawyer hoi polloi, the “ABA head has little sympathy for jobless lawyers.”

He might as well have quoted William Gaddis’s “Stupidity is the deliberate cultivation of ignorance” when he also unsympathetically said “We’re not talking about kids who are making these decisions.” In other words, ‘Caveat emptor,’ dummies.

Any wonder why the American Bar Association (ABA) has been getting skewered by two U.S. Senators; by recent graduates; and by the latest law school filing suit for being denied accreditation? And of course, they’ve taken a pummeling from the mainline press and the blogosphere. See, for example,“Class action filed against law school. Will more buyer’s remorse follow?” and “Bite me.” No job market for grads but law school enrollment and tuition soar, anyway.”

Institutional insolence.

I mostly fault the institutional insolence of the ABA for spawning, nurturing and consistently elevating such out-of-touch leaders. For example, Robinson’s predecessor, Stephen Zack, wasn’t any better informed. I chided Zack for “Putting lipstick on the pig of lawyer civility.” Also see THIRD TIER REALITY: “Profiles in Passing the Buck: ABA “President” and Mouthpiece Stephen Zack.”

It’s not unsurprising. The ABA is a macrocosm of the same attitudinal obliviousness afflicting most mandatory state bars. They don’t get it either.

For example, I recently learned the Arizona State Bar requires that its elected Governors obtain prior approval from the powerful Scope and Operations Committee if they want to put an item on the Board of Governors Meeting Agenda. Nothing can be brought to a vote before the Board without it first passing muster with this status-quo protecting, “don’t rock the boat” Committee made up of the State Bar President and other officers. Finally! There’s an explanation for the Arizona Bar being so reactionary.

But as for the ABA, it has a lot to answer for, not the least being its own self-serving institutional culture. They largely created the present mess, which was exacerbated by an unprecedented depressed legal market.

The ABA handed out candy-like law school accreditations as though there wasn’t a glut of lawyers; turned a blind eye to misleading law school post-graduation employment statistical tomfoolery; and managed an accreditation system that led directly to record-high tuitions exacted from hapless students to pay for tenured, highly paid and underworked law school faculty and complaisant administrators.

Law schools are now a university’s cash cow. But the only bovines getting ‘milked’ are the students.

As for the inquiries from Senators Boxer and Grassley about fudged post-graduation employment numbers, Robinson maintained it is an isolated problem involving just 4 law schools out of 200. And besides, he heedlessly claimed, “It hasn’t been a groundswell of comment from Congress.”

Well-paid and kicking it.

Parenthetical to Robinson’s remarks, The Careerist just reported that tenured law school faculty jobs rank near the top of “Best Jobs” in its list of “Best (and Worst) Jobs for The Money.” With six-figure median pay and work that amounts to almost 400 hours less than the average U.S. employee, no wonder there are so many “happy law professors.”

“America: What a country!”

Last, I have to think that Robinson’s blundering bloviating won’t help increase ABA membership, even if the cost is nothing in the first year for new graduates. Hide-bound insensitivity and haughtiness aren’t good recruiting tools.

But at least Robinson was cautious enough not to suggest that complaining recent grads should “go to hell.” Another southern ‘good ole’ boy’ had something to say on that score. Bill Clinton famously admonished, “Never tell anyone to go to hell unless you can make ‘em go.”

Anyhow, most recent law school grads already think they’re there.

Must be the day for religion in the news. First, there was breaking news about the consummate and consummating ‘Cafeteria Catholic‘ Gabino Zavala, the 60-year old L.A.-area bishop and father of two who made news for skipping the celibacy entrée on the doctrinal menu. Zavala is a high profile auxiliary bishop who was said to be very popular among the flock. He worked for Los Angeles Archdiocese Archbishop Jose Gomez.

In a letter announcing Bishop Zavala’s resignation, Archbishop Gomez wrote, “He is the father of two minor teenage children, who live with their mother in another state. Let us pray for all those impacted by this situation and for each other.”

But along with all those prayers, I say we also light a dozen votive candles of thanks that unlike the ongoing plague of Catholic Church scandals, Bishop Zavala didn’t borrow a page from Coach Sandusky‘s playbook.

                                                                                                             ‘What were they thinking?’

The other coincidental religious news involved two ‘what were they thinking?’ Minnesota lawyers sanctioned by U.S. Bankruptcy Judge Nancy C. Dreher for “beyond the pale” anti-Catholic rants in their motion to vacate.

Here’s an obvious but important practice tip, it’s neither prudent nor polite to call the judge a “black-robed bigot” and “a Catholic Knight Witch Hunter.” Justifiably, Judge Dreher took strong exception.

Lawyer Rebekah Nett and her client, lawyer Naomi Isaacson who besides referring to “Nancy Dreher, the Catholic judge,” also added for good measure that, “Across the country the court systems and particularly the Bankruptcy Court in Minnesota are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church.”

A staid place.

Bankruptcy court is usually pretty sober, staid and unexciting. The last time I remember anything of particular note was U.S. Bankruptcy Court District of Nevada Judge Bruce Markell’s opinion imposing a serious fine on a lawyer for being “sequaciously servile.”

Now, I’m not embarrassed to admit having hastened to my “Webster’s New American Dictionary” to look up sequacious. If nothing else, it was a cautionary exercise, reinforcing the unrewarding consequences of acting the part of a wanna-be George Will vocabulist show-off.

Turns out Judge Markell’s $100 dollar word choice was redundant. In addition to meaning subservient, the archaic word, “sequacious,” also means “intellectually servile.” So I guess “sequacious” would have been good enough without the superfluous “servile.”

In his February 4, 2010 “Memorandum Imposing Sanctions,” Judge Merrell objected to “butler-style” legal representation. He cited another case to underscore his imposition of a whopping $109,528 in restitutionary sanctions on the offending counsel. He wrote, “To act on such frivolous claims, then, without independent investigation, was to succumb to the so-called “butler-style” of representation, under which the sequaciously servile lawyer does whatever the client wants and then cites that client’s command as a shield to the improper actions. This style of lawyering, however, has no place in bankruptcy court or, for that matter, in any court.”

Thankfully, the insults in the long-running Minnesota Bankruptcy required no dictionary references. They did, however, elicit head-scratching incredulity.

But Judge Nancy Dreher’s sanction on Rebekah Nett’s and Naomi Isaacson’s “unsupported and outrageous allegations of bigotry, deceit, conspiracy and scandalous statements against this court” pales by comparison to Judge Markell’s monetary mallet. Judge Dreher ordered a measly $5,000 each in penalties and required Nett to attend, at her own expense, no less than 30 hours of ethics training within the next twelve months. There was also an unsurprising referral for an attorney discipline determination. See Judge Dreher’s Order to Show Cause.

And not that it much mattered alongside all the hateful vituperation, Judge Dreher said she has never been Catholic and is “not of any particular faith.” However, she did have an Arrest Warrant Issued. Also see “Judge orders Minnesota attorney arrested for anti-Catholic slurs.” A “Catholic advocacy group also filed complaints against Rebekah Nett.”

And smacking of the “sequacious” legal representation decried by Judge Markell, one press report said Rebekah Nett told Judge Dreher she felt “caught in the crosshairs” between ethics requirements and her client’s demands for certain language in the pleadings.”

When judges encounter one of a half-dozen or so instances of apparent bias or conflicts of interest, their ethical canons require self-disqualification. 43 states have either a statutory or a constitutional right of recusal for cause at the trial court and the appellate court levels. 25 of those states expressly or implicitly permit the same judge whose recusal is sought to hear and rule on the motion to disqualify herself. [1]

The same holds especially true for the U.S. Supreme Court where each justice decides whether his or her recusal is warranted. Little wonder, then, that The Alliance for Justice cogently argues that “A Supreme Court Justice’s Recusal Decisions Should Be Transparent and Reviewable.”

So unlike mere mortals, having slipped earth’s surly bounds and“trod the high untrespassed sanctity” [2]the  berobbed are blessed with the power to judge their own cause. Such power is almost akin to touching the face of God.

Judging your own cause.

“Although a judge has been appointed by imperial power yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion, to recuse him before issue joined, so that the cause go to another.” – Justinian Code, 3.1.16 (Justinian I 530)

From the ancient time of Justinian and the “Corpus Iuris Civilis,“ the maxim was “nemo debet esse iudex in propria causa” (no person may judge their own cause). But in practice over time, this axiom has been subsumed ever since Blackstone’s reverential regard first saw daylight in his Commentaries, “The law will not suppose a possibility of bias or favour in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”

And this presumption largely holds constant, the burden of proof being on the moving party even though the U.S. Supreme Court itself weighed in modernly to support that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” [3] But contradictorily, this rule doesn’t apply to itself.

The governing statute on recusal is 28 U.S.C. § 455(a), which establishes that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Chief Justice Roberts’s Annual Report.

On the last day of 2011, Chief Justice John Roberts issued his 2011 Year-End Report on the state of the federal judiciary. The report was striking in its strong defense of the high court’s ethics.

Concerning recusal, “The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.” That said, Chief Justice Roberts affirmed his unvarnished support for“the capability of my colleagues to determine when recusal is warranted.”

All well and good but given its “unique circumstances,” rare is the time when recusal is warranted by a member of the nation’s highest court.

What Chief Justice Roberts alludes to as “unique circumstances” is what Justice Antonin Scalia pointed out in his Memorandum In re Cheney v. United States Dist. Court for D.C. It was his denial of that famous Sierra Club recusal motion brought because Justice Scalia had gone duck hunting with a group that included then litigant Vice President Dick Cheney.

When it comes to the U.S. Supreme Court, the problem with resolving any doubts in favor of recusal, Justice Scalia wrote that “The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

The Code of Conduct, Justice Roberts also writes, is a “starting point” – - – not the definitive last word of ethical guidance. Consequently, his year-end report amounts to a reiteration of a revised Justinian maxim or in other words, that the justices “debet esse judex in propria causa” (ought to be judge in their own cause).

Chattering.

So with “Obamacare,” the Right wants Justice Kagan to recuse herself and the Left wants Justice Thomas to recuse himself. Kagan because of her rah-rah interest while part of Obama’s White House and Thomas because of his Liberty Central Inc. Tea Party sipping wife.

And former federal judge and U.S. Attorney General Michael Mukasey says it’s all just so much ado about “chatter.”

Neither should be disqualified from considering the case, he says, since the concerns raised by both sets of idealogues are so frivolous they can’t, for example, compare to the kinds of civil rights cases decided every day by judges of all races, creeds and genders and which when bias challenges are raised in those instances “far deeper than any purported rooting interest in a case, have been swatted down so often that a law clerk of even middling competence could prepare an opinion in less than half a day for a judge facing such a challenge.” See Michael B. Mukasey: “The ObamaCare Recusal Nonsense.”

But Judge Mukasey also parses his argument too finely when he opines on the standard for determining when impartiality might “reasonably be questioned.”

It isn’t based as he narrowly argues on a “a person of reasonable judgment, aware of all the facts, as well as how courts function, would decide.” [underlined emphasis added]. No, under Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000), the inquiry is “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Knowledge of “how courts function” isn’t a part of it.

And then from his sanctified, rarefied perch, Judge Mukasey further posits the unsupported non-argument that a more detailed review of recusal rules or a requirement that the justices review one another’s recusal decisions “will not assure greater clarity, nor would public confidence be improved.” Really?

Arguing for an ounce of prevention.

So what to make of all this? A court’s overriding concern must be to safeguard public confidence in the judiciary. To that end, it is nigh time for new recusal procedures like the kind advocated recently by Maine Law School Professor Dmitry Bam.

At “Making Appearances Matter: Recusal and the Appearance of Bias,” he argues for“ex ante [before the event] regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place.”

And departing from jealously guarded judge-made rules governing recusal, Professor Bam wants to take power out of the hands of individual judges in individual cases. Instead, he wants legislators to “consider appearances ex ante to prevent the damage to the judiciary from arising in the first instance. This means that legislators must regulate judicial selection (including judicial elections) and judicial conduct, as well as extrajudicial conduct, with an eye towards potential future recusal.”

Along related procedural deficiency lines, also see “The Elusive Goal of Impartiality” by Professor Debra Lyn Bassett, Southwestern Law School, and Professor Rex R. Perschbacher, UC Davis Law School.

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[1]  “The Legislature Must Save The Court From Itself?:Recusal, Separation of Powers, and the Post-Caperton World,” Drake Law Review, Volume 58, Number 3, Spring 2010, 765.

[2] With apologies to “High Flight“ by John Gillespie Magee, Jr

[3] IN RE MURCHISON, 349 U. S. 133, 136 (1955) and AETNA LIFE INS. CO. V. LAVOIE, 475 US 813, 821-22 (1986).