Joel Jacobsen

New Mexican wannabe Don Imus recently said to President-Elect Bill Richardson: "Besa mi culo!" Now, imagine if, on the day after the formality of the inauguration is out of the way, the new President were to retaliate by ordering a proceeding to determine whether to ban Imus from the airwaves.

That's pretty much what the Michigan court system did to Geoffrey Fieger.  Of course, Fieger had to babelfish Imus's words, because he was speaking to a Detroit audience.  But when he invited judges of the state's Court of Appeals to kiss his ass, they retaliated by initiating a disciplinary proceeding, threatening his right to practice his profession.  (See post 144.)

Various justices of the Michigan Supreme Court who ran campaign ads attacking Fieger by name didn't see any conflict of interest that would keep them from presiding - fairly and impartially, of course - over the opportunity to trash him.  And, surprise, surprise, they found no first amendment violation.  When one of their number protested the sheer shoddiness of the put-up job - the amateurishness of the oiliness - the chief justice responded by attacking her personally as an overly-emotional female-type.  (See post 216.)

The attitude Christopher Buckley attributed to Tom Clancy's Superman seems to be shared by Michigan's Chief Justice Cliff "Hack" Taylor:

[Jack] Ryan liked women.  His mother was a woman, and his wife was one, too, but it was madness that they were allowed to serve in combat or in the Senate.

Amazingly enough, various Michigan newspapers, such as the Jackson Citizen-Patriot and the Detroit News,  side with those justices who wish to punish free speech, impose prior restraints with a great flourish of wounded self-righteousness, and conduct government in secret as a matter of principle.  If newspapers are dying out, it's for the same reason the dodos did: they can't recognize their enemy, even when it's holding a club over their heads.

The Sixth Circuit - which, perhaps coincidentally, includes Michigan - went through a hilarious drama about court secrecy a few years ago.  Judge Alice Batchelder - perennial token female candidate for the Supreme Court (the Republicans can't be too choosy about who they promote as their tokens) - deplored the personal attacks of a colleague she characterized as among the "smallest" of persons.  She joined the comments of Judge Danny Boggs deploring that same colleague's decision to reveal what goes on behind the red velvet curtain:

I write to note, with regret, the breach of the long-standing custom of this court that actions by a member of the court with respect to petitions for rehearing of en banc are matters of internal court procedure and are not made public by other judges.   [Memphis Planned Parenthood, Inc. v. Sundquist, 184 F.3d at 605]

As the case name suggests, that was an abortion case, and the conservatives prevailed, allowing them the luxury of displaying their condescending "regret."  But just three years later, in another politically volatile case - involving affirmative action - the conservatives were on the losing end.  And guess who spilled the beans about the court's internal procedures, attempting to show that the chief justice had engaged in politically-motivated maneuvering?  Why, yes, I believe that was Judge Boggs who published his "procedural appendix."  (The fifth entry from the top; it opens only in Acrobat.  Scroll down to page 95.) 

And, golly, that's Judge Batchelder joining his dissent, explaining that "[u]nless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate."  It was up to Clinton appointee Karen Nelson Moore to be "saddened" by their act of disclosing the internal workings of the court: "their conduct in the present case is nothing short of shameful."

Whenever a judge tries to pretend that secrecy is a matter of principle, it means only one of two possible things: I have something to hide; or, I want to silence my enemy.   And usually it means both.