136. Independent of what?

Everyone agrees that judicial independence is one of those transcendently good things.  Sandra Day O'Connor has been spending her retirement giving speeches and interviews in favor of it, even warning against creeping totalitarianism if judicial independence is threatened.  But what does the phrase mean?

When Judge Loren Duckman's case was before the New York Court of Appeals (that state's eccentrically-named highest court), two judges were opposed to removing him.  One of them, the late Judge Vito Titone, wrote that removing him from the bench "strikes at the heart of the notion of judicial independence which is so critical to our tripartite system of government."  (699 N.E.2d at 881)

Now, the New York Commission on Judicial Conduct had recommended Duckman's removal because he illegally dismissed 16 criminal prosecutions, knowing full well he lacked the legal authority to pull the plug on them.  Duckman also admitted making up facts in order to justify his rulings, explaining: "I read things into cases and I'm not wrong about these things."  (See post 83.) 

For Judge Titone, then, one of the meanings of "judicial independence" was independence from the law and from any obligation to decide cases on the facts actually presented in open court.

Meanwhile, down in Ft. Worth, federal Judge John H. McBryde was making a peculiar name for himself.  Here he is bullying an assistant federal defender, here he is refusing to recuse himself from a case involving the same federal defender, here he is feuding with his own chief judge and a fellow federal judge from Arizona.  And that's just warming up to the incident in which he ordered an attorney to 

attend a reading comprehension course and submit an affidavit swearing to her compliance.   The attorney submitted an affidavit attesting to the fact that she found a course and attended for three hours a week for five weeks.  Judge McBryde challenged her veracity and required that she submit a supplemental affidavit "listing 'each day that she was in personal attendance at a reading comprehension course in compliance with [the] court's order;  the place where she was in attendance on each date;  the course title of each course;  how long she was in attendance on each day; and the name of a person who can verify her attendance for each day listed.' "   She complied.

A committee of the Judicial Council of the Fifth Circuit  concluded that Judge McBryde's persecution of this poor woman "reflect[ed] a 'gross abuse of power and a complete lack of empathy.'"  Judge McBryde responded by charging that the Council "unconstitutionally impugn[ed] judicial independence" by saying that.

For Judge McBryde, then, "judicial independence" meant the right to victimize others and not be criticized for it.  The amazing thing is that McBryde got Judge Tatel of the Fifth Circuit to agree that "judicial independence" was threatened by the reprimend he received from the Council.  Judge Tatel argued that it was "far wiser" to tolerate documented abusive behavior by judges than to risk a speculative "chilling effect" on future judges who feel like humiliating the lawyers who appear before them.

Judge McBryde launched various legal proceedings against his fellow federal judges.  At the end of years of ridiculous litigation  (the ideal client, every lawyer knows, is a rich person paying by the hour who thinks the bruise to his ego is a matter of principle, and Judge McBryde was evidently an ideal client) he demanded that the federal government reimburse him for all the money he had thrown away.

Once again, amazingly enough, he found a federal appeals court judge who agreed with him.  Judge Pauline Newman of the Federal Circuit - the court that hears claims against the federal government itself - wrote that "[t]he stakes for the nation are high."  She claimed to seriously believe that unless the federal government subsidized an abusive judge's lawsuits against his fellow judges, "the public's right to an independent judiciary" would be threatened.  One reads her opinion in vain for any sign that she was kidding.

For Judge Newman, then, "judicial independence" meant being freed from financial responsibility for wasting fantastic amounts of time and emotional energy on petty squabbling with one's colleagues.

Comments

[Stephen Neitzke]

Joel -- Thanks for the details. I'll hold them in reserve as my own criticisms of, and remedies for, judicial independence are flogged by those with realtiy at arm's length. I see judicial independence as one of the systemic constitutional problems that must be eliminated. I favor electoral and recall dependency on the large majorities of citizens in the respective court's jurisdiction. We the sovereign people simply must have some fully independent way to control rampant judicial criminality of the sort that underlies Bush v Gore and Gonzales v Raich. Those two rulings are examples of the blatantly unconstitutional, felonious, and treasonous rulings that should result in impeachments, removals, and criminal prosecutions of the assenting judges. Such rulings cannot be allowed to spew their anti-law regimes into our future. .

Stephen Neitzke
Direct Democracy League
DD Revival -- The Blog.