Can’t you take a joke?
In the time and place where I grew up, as I have written before, Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear.
Many of these judges held legal and social views I found profoundly wrong. But they were careful to protect the prestige and integrity of the courts they served, and to avoid giving the impression that they were just ordinary players in the poisonous politics of segregation. No matter their private misgivings, they publicly served the law and upheld the Constitution. In no small part I owe my choice of profession to the memory of their service.
Here is the federal bench 2012, after a generation of right-wing makeover: “I didn’t send it as racist, although that’s what it is. I sent it out because it’s anti-Obama.”
The speaker is Richard Cebull, Chief Judge of the U.S. District Court for the District of Montana. He was “explaining” why he sent out an email containing a “joke” about Barack Obama’s mother, suggesting that the President’s father was either a black man or a dog. The reason is, apparently, that he wanted to show his political contempt for the President of the United States, and that if doing so required a little old-fashioned racism, that was just—what shall we call it?—collateral damage.
But neither racism nor gutter partisanship is okay. Federal judges should keep their mouths shut about partisan politics. Not because they don’t or shouldn’t have views—of course they do and should—but because the integrity of the legal process requires a certain minimum of respect toward those with whom they differ.
These aren’t “unwritten rules,” by the way: see, among others, Canon One (“A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”) and Canon Two (“A judge should ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”) of the Code of Conduct for United State Judges.
Judge Cebull has now apologized to the President: “I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself,” he wrote. “Honestly, I don’t know what else I can do.”
I do. He can resign. Now. Today. Not senior status, which would leave him free to lord it over trial courtrooms—leave the bench entirely and collect his fat retirement. No matter how long he serves on the bench from this day forward, no matter how honorable such future service may be, nothing he does can come close to repairing the damage he has already done to the federal bench and the country that has honored him.
From my cold dead lungs
Over the past half-century, the First Amendment has begun to shift. What was formerly the right of the ordinary citizen to speak to the powerful is increasingly now the right of the powerful to tell the ordinary citizen how to act and think. One striking way station on this road was passed February 19, when Judge Richard J. Leon of the U.S. District Court for the District of Columbia granted summary judgment for cigarette companies in their fight against government-imposed warning labels to be printed on cigarette packs. In 2009, Congress passed a statute giving the Food and Drug Administration the power to regulate cigarettes and other tobacco products. The statute required the FDA to create require that cigarette packs carry “graphics depicting the negative health consequences of smoking.” The FDA did so, designating pictures of, among other things, a man breathing smoke through a tracheotomy tube and a dead body on an autopsy slab.
Big Tobacco (whose motto might be drawn from Ken Kesey’s Sometimes A Great Notion: “Never give a inch!”) opposed the new labels as violating the companies’ First Amendment rights, and Judge Leon agreed. He applied the highest standard of First Amendment review—“strict scrutiny”—to protect the right of tobacco companies to present their lethal addictive drug in the light they choose. The opinion relies in part on the Supreme Court’s astonishing 2011 decision in Sorrell v. IMS Health, Inc., in which the Court held that states can’t permit doctors to keep their prescription practices secret from big pharmaceutical companies who want to monitor them, because protecting doctors’ privacy might discourage companies from “speaking” to them.
In this case, Judge Leon said, the graphic images are “neither factual nor accurate.” (For example, the autopsy photo can’t be used because the government can’t show that “autopsies are a common consequence of smoking.” Seriously?) Even worse, the judge concluded, “the Government’s actual purpose is not to inform or educate, but rather ... to encourage smoking cessation and to discourage potential new smokers from starting.” This interest—protecting children from commercial drug dealers whose product will first addict, then kill them—is now apparently illegitimate: “Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.”
Foreign Subversion of American Law, Marylebone C.C. Division
Justice Stephen G. Breyer of the Supreme Court is widely known for his willingness to debate fellow Justice Antonin Scalia on the issue of foreign and international law in U.S. constitutional jurisprudence (Breyer’s generally for it; Scalia’s generally against). Less widely known is the fact that Breyer is the son-in-law of the late Rt. Hon. John Hugh Hare, First Viscount Blakenham, whose own father was the Earl of Listowel. I can now report with regret that Breyer apparently represents a covert operation by the British aristocracy to sap not only the all-American content of our law, but the manly new-world sports vocabulary in which we discuss it.
The plot was revealed to a candid world in Tuesday during oral argument in Mohamad v. Palestinian Authority. In that case, counsel for a man allegedly tortured to death by security forces in the West Bank sought to convince the Court that the Torture Victim Prevention Act, which permits civil suits against any “individual” who subjects another to torture or extra-judicial killing, should be read to allow suits against non-state organizations like the Palestinian Authority.
Veteran Supreme Court litigator Jeffrey Fisher had barely launched into his argument when Breyer interrupted to say, “I have to say that you are on a weak wicket.”
Imagine Fisher’s despair at hearing those words! Not only did it signal that Breyer’s vote was in doubt, it put Fisher to the unenviable task of responding using cricket metaphors. In any God-fearing American courtroom, it’s fine to ask whether a plaintiff has “struck out,” or a defendant is trying a “Hail-Mary pass,” or a witness may need a “pit stop,” and so on. But I can say with confidence that 99 percent of American lawyers and law students don’t know leg before wicket from Lemony Snicket—and that goes for Supreme Court journalists as well. Sudden metaphor shift could play hob with our cliché stock.
Not long ago in this space, I demonstrated how the emerging Sotomayor-Muppet axis is undermining the “original intent” that is America’s only bulwark of liberty. Within weeks this new danger has emerged. Where will it end? Picture our current court in ermine and wigs, offhandedly chattering to baffled counsel about grouse shooting, hurling, and polo. Or—not to be alarmist here—consider that until quite recently the Supreme Court of the United Kingdom was officially named “The House of Lords.” Is some kind of bizarre name-swap underway? Is Breyer’s “innocent” question simply the thin edge of the bat?