The Federal Rules of Judicial Conduct is a through detailed careful achievement. (The Breyer Report upon it is scholarly and thoughtful.) Perhaps and maybe probably most Federal Judges know it well and attempt to follow it. Practitioners in the courts are often not familiar and transgressions appear to take place which do not precipitate effective enforcement. The further away from Presidential appointed Judges, the less these rules seem to guide. Federal agencies may be without such clear controls. State Courts have their own Rules of Judicial Conduct. There are many instances reported (and unreported) of violations. The administration of “justice” in non Judicial settings is often lacking in the appearance of civility and actuality of due process, yet affects many.
Litigators will say in private that “Judicial Ethics is an Oxymoron.” Some lawyers will say most Judges decisions can be explained by either laziness, stupidity, or some form of corruption, moral or monetary. For fear of retaliation, they will never say such things in public but often swap horror stories as illustrations in private.
Those who follow reports of Judicial conduct including Administrative Law Judges (formerly “hearing officers”) discover many cases of startling misconduct, adjudicators sleeping with prosecutors, witnesses, presiding over their own divorce cases, being paid to send Juveniles to for-Profit Juvenile jails, abuse of witnesses, defendants, parties, advocates, etc, outright bribery, collusion with one side, immigration hearings with 3 years olds forced to defend themselves alone against deportation, clear patterns of racial prejudice in disability hearings, outright sexual conduct in tribunals.
Most of us either as lawyers or citizens have waited excessively long times to be heard, been treated badly, feel not given a chance to present our case, received injustice (for ourselves or clients) in some tribunal or other from traffic court through the highest Federal Courts. This seems to have been around for a long time.
Some Judges are excellent and conscientious. Of that, there is not doubt. But what about the others? For some there are Rules. But what about the enforcement? For some, including the highest, the Supreme Court (note when Judge Scalia died he was staying for free at a lodge attending a Secret Hunting Society event) to some of the lowest (Immigrations Courts) there are no rules.
It is the thesis of this article that there has to accountability and visibility (“transparency”, the cliched word, is not enough as it does not guarantee visibility) of the decision makers and effective measures to enforce sanctions against those who abuse power – commensurate with due process.
The necessity for rules is based on the Constitution and the Bill of Rights. Some of the phrases such as “due process” are conceptually given some content by the common and decisional law (and may, as some argued be informed by comparative law invocations.) We note that “due process” in Judicial Ethical rules should not only lead to fair adjudication for people in the process but for procedures involving scrutiny of and imposition of sanctions on the empowered decision makers.
The First Amendment and the “Equal Protection of the Law” also undergird the discussion speaking to the right to petition the government for the redress of grievance, to have access to the government agencies in such a way as to receive protections and benefits for which they were designed, to have recourse to the various adjudicative tribunals to achieve just outcomes in private disputes, to make sure that freedoms are not restricted without sound reason (and “due process” of course). In the Federal system, it is clearly established, that the Judiciary is the third of three branches. It is therefore crucial that in a democracy, it presents both the appearance and actuality of being responsive to the people, accountable to principles, and represented by people whose conduct is appropriate for their power and duties.
I. The Supreme Court
The Federal Rules of Judicial Conduct apply to the Supreme Court as written. They are not applied. This is an error.
We look, for better or worse, to the Supreme Court to be the final arbiter of the Constitutional validity of our Federal principles and laws, and the interpretation of their application.
There are sociological and even jurisprudential disputes about whether there can ever be “objective” interpretations of the “law” but the Supreme Court is supposed to apply reason to the matters before it, the factors and issues involved, refer to the relevant principles in the Constitution, usually given some concrete meaning in previous decisions, and apply those principles to the facts to reach a decision then explained and justified with a decision. This ideal is what underpins its acceptance as the third branch and final arbiter of legal matters.
In recent years, we have seen the Court become increasingly “politicised”.
Judge Thomas will not hire those who do not share his political views saying they would become like “irritated pigs.” Appointments are scrutinized on how they will probably vote on controversial political issues which invoke the Constitution. Elective candidates speak about the type of politics they expect from the appointments they will accept (or in the President’s case) make. Eisenhower was disappointed in his appointment of Chief Justice Earl Warren whose Court ordered nationwide school integration. All this is in opposition to the ideal of the best legal reasoning being applied to the controversy, facts, and issues presented. Ironically, Justice Scalia, an obviously result oriented Judge, stated a law may be stupid but still Constitutional.
Recently, we have seen the aforementioned Justices Scalia and Thomas address the Federalist Society (and hire clerks from its ranks), law students who approach the law with a particular political perspective. Judge Scalia also attended secret meetings with the Koch brothers and their billionaire buddies. Both Judges made many speeches, accepted free travel and lodging from many groups. Other activities giving a political tonality can also be listed, Certainly if there were established an enforcement mechanism for the Federal Rules of Judicial Conduct, such activities could be called in question.
There are many ways in which a mechanism could be established. A panel of rotating Chief Judges could be appointed to hear complaints and issue decisions. That panel could also include members of the Bar with or without official Bar Association titles appointed by the President. Complaints could be screened by an independent group funded by the government and comprised of members of the Bar.
Other ideas are also possible.
II. Other Article III Judges
The Supreme Court, the Courts of Appeals, and the District Court are all Article III (Constitutional) Judges.
As stated, there is a Federal Judicial Code of Conduct which is supposed to govern them. There was controversy about them a few years a ago resulting in a report by a Commission chaired by Justice Breyer, with recommendations, and considerable detailed scholarly work on the details.
Let us suggest what must be included at the minimum. Although the Constitution speaks of disqualification for “high crimes and misdemeanors” it must not be limited to that.
Complete disclosure of financial, familial, friendship, and legal connections must be disclosed, updated, and available to the public. No Judge should sit when there is a conflict of interest. Divestment into new blind trusts should be a precondition of Judicial Service. Clearly activities such as campaigning for a candidate or pushing for a political position in public should be prohibited. Any common law felony or any defined activity which affects adjudication should lead to expulsion from the bench. (Bribes, obviously“gifts”; communications with parties, counsel, or ex parte with others which would affect the case). Shocking instances such as Irving Kaufman taking a vacation with the prosecutor Roy Cohn during the process where Kaufman had the State murder the Rosenbergs should have lead not only to his being put off the case. . . and the bench – but instead he was elevated to the Circuit Court of Appeals. Publications should restricted to matters that have not or will not come before the Judge. These examples form a partial list of what should be included in a Rules and are, in principle.
It must be clear that each Judge is unbiased.
When not, a Judge should recuse =disqualify= him/herself from that case in which bias is involved. (Under the current Rules of Federal Procedure a denial of a Motion to Recuse is not immediately appealable. That is wrong since cases often settle before final adjudication; money runs out; recusal speaks to the essence of a fair trial.) There also must be protection against those who file Motions for Recusal (and complaints against Judges). Many practicing lawyers believe they hurt their clients, even on Appeal, if they have filed complaints (even with limited impact) or motions to recuse against a District Judge.
Federal Judges court room conduct is visible. It is not always appropriate. There are Judges who make lawyers and pro se clients wait, tell jokes at their expense (earning laughter from waiting lawyers not at their wit but to placate the Judge), excessively limit time of presentation, threaten lawyers with contempt, appear hung over, or under the influence of some substance. (This conduct may be worse in chambers.) They also appear not to have read the papers submitted or even unfamiliar with the area of law, even sarcastically dismissive of certain claims such as those made under Civil Rights, Disability, and Consumer Protection Acts. (When the contempt power should be used, when referral be made to the Ethics Committee to the Bar, when attorney fees should be assessed on what conduct is not clear.) At the moment, the Federal Rules appear to operate with a written complaint to the Chief Judge who can talk to the District Judge and arrange for surveillance. This is not enough. Although there are some surveys of lawyers about District Judges they seem to have little effect. Treatment of pro se parties is also important not only for justice but also for how its administration appears to the public. Rather there should be both encouragement, perhaps in signs or pamphlets, to report misconduct and a permanent committee to review complaints comprised of rotating Senior, Circuit, and District Court Judges. That committee should issue written reports available to the public = after all these are life time appointments. One abuse, not dealt with appropriately by the Circuit Courts, is delay by District Courts in rendering decisions or finding new issues on remand. The history of the Ward Cove decision is a stark illustration. As part of Judicial solidarity Circuit Court Judges are loathe to remove District Court Judges from cases. (After the 2nd Circuit reversed Judge Travia who wrongly ruled while admitting he had not read the controlling case and “suggested” he transfer it, they implemented a rule that Judge’s names were not to be in the captions of cases), The Federal Rules should address this matter mandating the Court of Appeals to remove cases from obstructing Judges.
Circuit Court Judges should be subject to the same review process although the treatment of lawyers and litigants tends to be much less and less frequently offensive and prejudicial. (But see the article in the April 2015 Verdict by Derfner and Weiss on Judge Friendly.) A similar complaint process, nevertheless, should be installed so that the public can hold those Courts accountable. There is no clear process for handling requests for recusal indicating that a mechanism should be put in place.
The Supreme Court’s visibility is such and it is so open to public scrutiny that open Court room conduct need not be subject to review. It is also unlikely that lower Court Judges whose decisions are reviewed by that Court would write anything even constructively critical. even in this age where questions often appear to be antagonistic or statements of positions, rather than probing or arguments or seeking clarification or thoughts or facts, distinctions, or concepts that would help the Court reach a decision.
The question of what a Judge does outside the Court seems to invoke the First Amendment. We have already invoked “high crimes and misdemeanors.” The current Federal Rules deal with these. As suggested, the assumption of duty does limit the First Amendment (as does Legal Ethics “confidentiality” imposed on lawyers). All political activity ought to be banned. (We will deal with State elective office later). Receipt of gifts (including services and lodging for free) and money for activities should be banned as leading to undue influence. The Rules can codify a system for a due process hearing leading to dismissal from the Bench.
But what about public drunkeness, nudity, obscene, or even racist, etc. language? What about family or friends engaging in such activities? What about extra-marital affairs? Attending prostitutes or one of the many pornographic (including perverted) internet sites?
Two issues arise:
(1) Is such behavior so egregious that it damages the “image” of the judiciary irreparably?
(2) Does such behavior demonstrate that the Judge has “lost his mind” so that he can not be able to reason and decide judicially? It is our opinion that Judges who make unpopular decisions would be too vulnerable to charges under these two issues and they take place outside the Judicial process. (Of course, neither they nor prosecutors – who commonly do – or other lawyers should comment in public about cases they have in litigation.)
The Constitution only speaks of “high crimes and misdemeanors” and dismissal (or sanctions) from the Bench ought to be limited to that and directly derivative Rules of Conduct. Clearly the cognitive content includes common law felonies, activities in the political arena, any retaliation against attorneys or parties , and any involvements which might produce bias (and the associated necessity for recusal in appropriate cases). The extension to the appearance of probity should be scrutinized intensely. A Judge surrenders some of his First Amendment rights and should refrain from speaking or writing about matters which may come before him.
An interesting question arises in this connection. It seems widely assumed Judges should be impeached (and several have been.) But note that Article III does not talk of Impeachment. It would be better if the Federal Rules established its own procedure obviating the importation of the procedure in Article II.
A word about the Law Clerks.
Their use, naturally, varies enormously Judge to Judge, from detailed work through research to even holding conferences, deciding, writing decisions. The obvious and simple concept since they do hold conferences, talk to lawyers, write decisions, and influence Judges, etc. is to impose the Federal Rules directly and explicitly upon them. Since many now serve for a number of years, all should be forbidden to belong to any group with a particular “legal philosophy.” The question arises whether they have any rights in their discharge. Due process would seem to indicate that they should have the type of administrative hearing the EEOC provides for those alleging discrimination held in front of a Judge from a different jurisdiction and, if successful, be reassigned to a different Judge. If no one is willing to take on a vindicated Clerk, salary and fringes should be paid for a reasonable time and a letter drawn acceptable as a recommendation to future employers.
Administrative clerks can also be obstructions, refusing to take papers or rejecting them for fabricated or over technical details as well as making people wait and just being rude. (The author once had papers rejected by the Chief Clerk of the 2nd Circuit because he thought the issue was not important. It was only accepted because of a Motion made before the Court started hearing cases, then argued, and after a long wait, mooted with the appellants successful.) Poor pro se appellants are often treated quite badly as opposed to “regular players” and big law firms. Clearly a well managed Court of Appeals can design supervision and enforcement mechanisms for such important ancillary matters.
Article II Judges are appointed without the necessity for Senate confirmation but not for life. The phrase “high crimes and misdemeanors” need not apply to them but the Federal Rules of Judicial Conduct obviously should. Recently there has been an expansion of Magistrates with much delegations to them by District Courts including the option of trying cases. (They are referenced as “Judges” and have law clerks). In general, the atmosphere is more informal. In general, matters referred to magistrates when decided are rubber stamped by District Judges. Such a situation allows for considerable distortion of the discovery process, often experienced in the area of Civil Rights particularly against Government entities and some large Corporations.
One often hears complaints from those who embrace the title of Judges of how little they are paid. These same often exhibit the unscruitnized bias towards the poor and oppressed. The obvious remedy would be to start appointing people from the ranks of Legal Aid and Legal Services with extensive litigation experience who would experience a raise in salary and bring diversity of experience, background, and other characteristics in this category. Aside from the D.C. Presidents column in the DC journal in December 2012, no one has come close to mentioning this possibility. We can also suggest that these practitioners would also be sensitive to the treatment of those representing others than big and powerful interests.
It should be easier to set up an enforcement mechanism for Magistrates. Panels can be comprised both of Article III Judges, Article II Judges, practicing lawyers, even academics. Complaints could be made anonymously of general abusive conduct, bias, or unusual delays or discovery and motion practice (particularly Summary Judgement) with review of pattern and practice as well as particular misconduct. Unlike Article III Judges, we can be more stringent about outside conduct since they are not part of a Constitutional branch. Those who have been lobbyists or have published or lectured on a particular legal topic should be subject to automatic recusal by application to the Judge in charge of the case. Obviously they should be free to write and speak about other matters. Issues of recusal should be immediately appealable to the Judge to whom they are assigned.
There are a plethora of Article II courts for Claims, Taxes. etc. One particular branch is Bankruptcy which employs members of the Department of Justice as “trustees”. Sometimes these trustees have been found to be abusive and even to refuse to allow interpreters and engage in other such improper conduct. The disqualification and discipline of these trustees should be appealable from the Department of Justice (by whom they are employed) to a panel such as we have suggested. The question of recusal with distant relatives as creditors gets difficult in this area. It should be very easy for Congress to pass legislation making payment of a fee for speaking (or provision of substantial benefit) a crime. One often hears about the “appearance” of impartiality as well as its existence. Given the attitude of many towards their experience with Article II Judges these guarantees would help with that “appearance.” (One would think that Tax Court Judges should have to pay their taxes scrupulously and regularly or no longer sit). This brief invocation of this area indicates that there should be a detailed study of the particular ethical problems of each area of the Article II Judges.
Sometimes Masters are appointed from the private bar. (E.g. Simon Rifkind, who also served as a District Court Judge who served as a Supreme Court referee in a water dispute). The Federal Rules of Judicial Conduct should seem to apply but the simplest mechanism would seem to be a Motion to the appointing Court (and appeals unless the appointment was by the Supreme Court.)
Some Jurisdictions has pro se Judges, who are hopefully sensitive and experienced, with unrepresented individuals with grievance. Obviously, they are subject to the same disciplinary considerations as other Judges. The ability to complain about them (and mistreatment by administrative clerks) should be made very easy by signs, pamphlets, forms, and places to file them. In general, pro se clients should be made aware of the disciplinary system. One group in particular should be noted: prisoners file many writs, some prisoners alone serve many law suits.
Many, of course, are without merit. Nonetheless, their papers deserve an appropriate reading. This author handled a case on appeal by a prisoner who had lost countless suits and found merit to persuade the 2nd Circuit that his First Amendment rights were violated when a Prison Chaplain put him in solitary confinement when they had a theological dispute. We need not explore the horror of our nation’s prisons or the distorted nature of its population to exhort the Judiciary, as a government entity, to give caged denizens the rightful impression that they, at least, received proper attention for their complaints from the Federal branch.
Most people actually encounter Federal adjudication in Federal agencies operating under laws and regulations. The decision makers once called “Hearing Officers” are now called “Administrative Law Judges.” There is no uniform code for them. Some agencies have no rules of conduct, some have proposed rules of conduct, none appear to have effective rules of enforcement.
Let us consider two agencies that have crucial effect on people’s lives.
The first is the Immigration Department which holds deportation hearings where there is no right to counsel and counsel is rarely present. Infants have been forced to represent themselves, some even held in arms. There appears to be no comprehensive rules promulgated to protect even from prejudice let alone assure due process. Certainly such hearings should be open to the public, counsel appointed (where is the vaunted pro bono activity of the Bar?), comprehensive Rules of Conduct promulgated and enforced by an independent Board but this is Utopian fantasizing.
Many people’s ability to subsist depends upon Social Security. Even access to a hearing may be a problem. For years, for example, hearings on disability claims for people in the Bronx were held in White Plains taking over an hour and a half to secluded office. (Getting there was sometimes used as proof that the person was not disabled. This author took his clients there by car services to avoid that problem.) Disability hearings in Manhattan, like Immigration hearings required long waits involving physical hardship. Prejudice was difficult to overcome. One Hearing Officer, a Helen Anyel, was clearly biased. It took Legal Services advocates years of reversing her decisions in Federal Court to accumulate enough evidence to bring a successful law suit to impose limits on her powers. Evidently, there is a need for an extensive Code of Conduct for Social Security “ALJs” to ensure due process, visibility, accountability, ability to complain, and enforcement. These agencies affect people’s lives deeply. These people are poor. Perhaps that is why there is no attention to Codes of Conduct.
On the other hand, the Federal Rules of Judicial Conduct which are very detailed (We have essentially focused only on bias and conflicts) can be stretched past reasonableness. There are many interesting intellectual questions raised in the area (e.g. can Judges, identified as such or not participate in State caucuses; what knowledge outside what the litigants have supplied can be sought?) but some actions taken in these areas seem excessive. The distinguished scholar Guido Calabrese, talking to a small group made some comparisons about the political situation of his youth with the contemporary scene which was reported by the New York Times. The 2nd Circuit disciplinary machinery forced a public apology. Such energy would be much better spent on supervising the Courtroom behavior of District Court Judges and their membership in various clubs and trips to various venues such as the Federal Bar Association in Hawaii, if minor matters require major attention.
No one, it is said, should be above the law.
The Federal Rules of Judicial Conduct must serve to ensure that is true of Judges. The Supreme Court therefore should be covered. Other appropriate rules should be added.
Justice demands visibility, accountability, and enforcement with due process.
Article III life time tenure requires no less; Article II implies more. Administrative agencies must have rules which guarantee fairness and accessibility with visibility, accountability, and enforcement.
It is widely acknowledged that the criminal law enforcement system, prison industrial complex is a scandal with its rates and duration of brutal incarceration. Fueled by the War on Drugs, the 1994 Crime Bill, and Mandatory Minimum sentencing, Federal prisons (particularly when private and driven by profit motive) are exercises in brutality not rehabilitation. (See Joshua Price, Incarceration and Social Death). The role of the Judiciary is limited in many regard. But, beyond the Rhenquist wreckage (and Clinton’s Prison Litigation Reform Law), there could be much more careful scrutiny of habeas corpus petitions and motions for relief dealing with conditions (e.g. solitary confinement) and less bias exhibited in favor of police and prosecutors. (Monroe Freedman has written extensively as to the lack of application of Legal Ethics to prosecutors.) Such bias may be subtle as well as overt but it may also be revealed in pasterns of rulings and jury instructions as well as decisions on prisoners’ papers. The appointment of distinguished criminal law defense lawyers to engage in observing and working with academics to gather data might have a salutary effect. An argument can be made that parole boards function as administrative tribunals (the demand that applicants show remorse and admit guilt even when justly claiming innocence is outrageous) so it should be so supervised; that parole officers are like Hearing Officers and ALJs so that there ought to be mechanisms to overturn arbitrary, racist, and excessively punitive actions.
III State Courts
Federal Judges are rarely accused or even suspected of monetary corruption.
In many jurisdictions that is not true of State Judges and those acting with State decision making power. There are, of course, exemplary State Judges, and in some geographical areas exemplary officials dealing with the imposition of sanctions. This author has never met another litigator who does not have an anecdotes casting aspersions on State Judges and State adjudicators. We note, in passing, that in New York, the State Judges sued in their own Courts for an increase in salaries (see the remarks above about recruiting from the ranks of those who represent the poor) which invokes a question of Conflict of Interest. There is a Code of Judicial Ethics (and many opinions under them – even one Casebook of them) for every State. We suggest that a flagrant or crucial violation of such a code should predicate a right to sue in the appropriate Federal District Court on the claim of Constitutional infringement of due process (and perhaps Equal Protection) for declaratory Judgement and an Injunction. There is an argument (particularly under Shelley v. Kramer) that an affirmative suit could be brought under the Civil Rights acts but it makes more juridical sense to have an Act of Congress establishing such a procedure.
There is a threshold question of whether Judges are appointed or elected. The backdrop of this distinction is constituted by the Jaybird cases from Texas which held that the (segregated) Democratic primaries were tantamount to the election and being segregated were unconstitutional and a later contrary Justice Scalia case, not mentioning these prior decisions, upholding a New York procedure where the nomination by the Democratic party was tantamount to winning the election to be a Judge. The comparative merits and demerits of these two systems are difficult to parse balancing back rooms versus campaign contributions which in this age of Citizens United seem to have an excessive influence = but is not for this article to resolve but to note the different consequences that ensue for Codes of Judicial Conduct under each system.
We must, unfortunately, eliminate as a practical matter the areas of widespread corruption, where articles like this fade into wisps of academic smoke. In Five Dollars and a Pork Chop Sandwich Mary Frances Berry details extensively how country wide whole communities, based on their experiences, have their votes for candidates, prosecutors, and Judges bought by a promise of transportation to and from the Voting Booth with the presentation of $5 and a pork chop sandwich as payment on the way back to their impoverished home. It is doubtful that Codes of Judicial Conduct can be enforced here.
Scandals need not be so obvious. For five years, there was a Family Court in Pennsylvania where the Judges were paid to sentence Juveniles for such misdeeds as truancy to a private jail making handsome profits. (see Kids for Cash) Eventually, such behavior even reached discussions in the American Bar Association Journal and the Judges went to jail but five years of ruined children’s lives is a long time. Where were the courageous lawyers? Where did they feel they could appeal without fear? Where was the local Bar association?
As others litigators have, this author has observed the indicia of partiality, if not worse (returning to a Court room to retrieve something after trial to glimpse opposing counsel and Judge going into Chambers together; knowing political and other connections of Judge and appointments of guardians ad item; being forced to file a Motion to Recuse a Family Court Judge for prejudice against Puerto Ricans with the Judge then ordering the clients to discharge me as counsel, etc. ) We all have heard of Judges asking personal injury lawyers when alone about with what other carriers they had cases, etc. Tales of direct payment are not unknown. Corruption can be implicit and subtle rather than overt and demonstrable. Complaints about it are dangerous to a practicing lawyer.
Indeed this article would not be written
if the author planned to litigate again.
In any event, corruption of this sort is a social and criminal matter, varying from locale to locale and unreachable in practice by the State’s Code of Judicial Conduct although undoubtedly forbidden by it. The general favoritism shown to prosecutors is an open secret daily evident to the Defense Bar and any impartial observer.
For elected Judges there is the problem of campaigning. Issues go from the obvious of campaigning in Robes and handing out brochures to making promises on how cases will be decided. State Codes should clearly prohibit some such. Clearly a candidate has a Free Speech right to speak about anything but if a matter comes before that candidate after election, recusal should be mandated and immediately appealable if denied.
There is also the issue of campaign donations. Mr. Blankenship, now under sentence of a year in jail for conduct leading to death of many miners, spent large sums of money to place a Judge on an appeals court dealing with the liability of his company for damages = the swing vote. This impropriety was overturned but suggests the danger. There should be a rule against any Judge sitting on any case involving someone who donated to his campaign.
For appointed Judges, we would suggest that former lobbyists should be automatically precluded from sitting and automatically recused if they testified to legislative bodies or advocacy groups on issues which arose in litigation = including appeals from administrative decisions. Both precautions are based on the necessity for impartiality.
Just as there are Federal Administrative agencies there are State tribunals for cab drivers, environmental matters, parking tickets, health concerns, and the like. These jobs are generally filled by part time lawyers. There appear to be no Codes of Conduct. There are also Human Rights and Disability agencies usually filled with Civil Servants but again with no codes on conduct. For reasons ranging from the need to have citizens believe in government impartiality and fairness to making sure that important rights are protected Codes of Conduct mirroring the ones imposed upon Judges particularly involving bias, conflicts, and abuse, etc. should be promulgated, publicized, and implemented.
In the lowest area of adjudications many many poor people are affected, seeking welfare, freedom from incarceration for lack of ability to pay minor fines, medicaid. Yet these areas are the most lawless and administered in the most disheartening and heartless ways. Clearly they should be the most visible and accountable instead of the opposite.
Many have detailed the defects of the “criminal justice” system in which the Judges play a significant part, processing rather than adjudicating (with enormous disparity in sentencing -also State by State). Military Courts have been criticized for their obvious defects (and so has the Veterans administration.) We need not include them to make this article a jeremiad against Judges, for the our main purpose is to review the considerations that should go into Judicial Codes, the application, protections of all parties, the gap between the ideals, the words associated with the ideals, and the realities in our adjudicative processes from the United States Supreme Court to the tribunals that normal citizens encounter as part of daily living under a country which promises a rule of law and Federally a branch devoted to Justice.
One last word.
At least we have been discussing Courts with rules.
Since the 1970s there has been a Secret “Court” with secret decisions about searches and seizures in clear violation of the 4th Amendment.
No rules are relevant here.
FISA should be abolished under the 4th and 5th Amendment.