A happy coincidence — the same week that a few judges were acting like themselves, my article on judicial retention in the annual issue of the “State Constitutional Commentary” entitled “Constitutionally Speaking, Does Retention Matter?” became available in print and online at http://www.albanylawreview.org/article_list.php?volume=75&issue=4
My irreverent contribution to the Albany Law Review, however, was merely an extended riff on what I’ve blogged about before as I critiqued among other things, the smug triumphalism of judicial retention elections and the below-the-radar judicial job security known as “lifetime tenure-light.”
So as I note in my article how the ideal of judicial independence remains preferentially ascendant with the legal establishment, it’s a good thing that every once in a while — the other equally important but oft-subordinated virtue — judicial accountability — finds a momentary albeit informal expression in the hoi polloi’s public eye.
First among the week’s judicial smackdowns was that involving Northern California U.S. District Court Judge Lucy H. Koh who is unquestionably familiar with the Code of Conduct for United States Judges and how it’s probably not O.K. to verbally ball-peen counsel for one of the litigants with the following caustic slapdown: “I mean, come on. Seventy-five pages! Seventy-five pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours.”
But then it does seem that, of late, that a certain part of the Code is sometimes overlooked — the section that urges judges to “be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”
Yet doubtless, for every trial lawyer frustrated by the antics of opposing counsel, Judge Koh’s reproach was savored with approval. There was blogger Robert Farley at Lawyers, Guns & Money who sardonically asked “You mean this morning, or generally?” and insinuated atta-girl approval writing “When judges stop being polite and start getting real.” For the record, the Apple lawyer at the receiving end of the judicial outburst denied he was smoking crack.
Lexington-Concord? Civil War?
Not to be outdone — at least at the state level, there were a couple of jurists who also gained national notoriety last week for their own intemperate utterances. One was County Judge Tom Head from Lubbock, Texas who told Fox 34 News that ‘Obama’s Re-election Could Prompt a UN Takeover, Civil War.’
More specifically, the good judge said that if reelected, President Obama was “going to try to hand over the sovereignty of the United States to the U.N. Okay, what’s going to happen when that happens? I’m thinking worst case scenario here. Civil unrest, civil disobedience, civil war maybe. We’re not just talking a few riots here and demonstrations. We’re talking Lexington-Concord take up arms and get rid of the guy.” Now there’s a jurist willing to go that extra injudicious mile farther than Montana U.S. District Chief Judge Richard Cebull when it comes to demeaning the current occupant of the Oval Office.
And then there was that other judge, coincidentally also from Texas, Brazos County Precinct 1 Justice of the Peace Michael McCleary. Judge McCleary got into his own hot water for his angry remarks made to the local press about Thomas Caffall III and his family. Caffall was involved in a deadly shootout near Texas A&M campus that left 3 dead and 4 injured. He died Aug. 13 after being shot several times by authorities responding to the shooting.
With respect to the post-autopsy remains, Judge McCleary said, “I’m not going to let the county be out the expense of going and picking up his nasty-ass body. If it cost us $200 to go pick him up, I’m not going to pay for it. The family can take care of that. I have no sympathy for him or the family.”
Later, thinking better of it and to his credit, the Justice of Peace took out a newspaper ad to apologize for his harsh words.
Yet elsewhere, I have no doubt the beat will go on.
Photo Credits: “Snap Suplex,” by Hugo Fernandes, at Flickr via Creative Commons-licensed content requiring attribution; “Stirling Fair 2010_3037,” by Robert Taylor, Bobolink, at Flickr via Creative Commons-licensed content requiring attribution.