The question

I reader from Canada brought to my attention a judicial spectacle going on in the land of ice and snow. It deals with Manitoba Queen’s Bench Justice Lori Douglas, the rough equivalent a federal trial judge here. I won’t go much into the details of this sad and salacious matter. It is enough to say that it involves nude photographs of the judge, before she was a judge, appearing on the internet under very depressing circumstances. Above the Law has chronicled the details in several posts including herehere and here. You can pursue the grimy specifics if you like by going to ATL.

Apparently, Justice Douglas did not disclose anything about the photographs when she submitted her application to become a judge. In turn, a committee of inquiry was impaneled pursuant to Canadian law to look into the judge’s omission and related matters. It began the investigation several years ago. The Justice has defended herself by suggesting that the sad story of how these photos became public was well-known among the bench and bar and therefore there was nothing to disclose. Over time, the investigation has become heated. The Justice sued the investigating committee. She alleged bias. Last week, all the members of the inquiry committee resigned.

So, why do I write about this nasty story? It got me thinking about how we vet federal judicial nominees in America. Specifically, I thought readers might be interested in knowing about the question.

Once the White House decides that it is likely to nominate you, word goes out to the FBI. The nominee must fill out a very detailed questionnaire. From that document, and who knows what else, FBI agents throughout the country, and internationally if necessary, compile a dossier that is given to the White House, and the Senate if the nomination goes forward.

The level of detail unearthed by the investigation would amaze you. From the time of your birth, until the present, every detail of your life is scrutinized including the criminal and employment history of your mother, father, brothers and sisters; your economic circumstances over time; your prior legal work and what other judges and lawyers think about you; every aspect of your medical and psychological history; detailed information about your spouse and kids including marital discord, employment history and criminal records; what your neighbors say about you; what your worst enemies say about you; what drinks you drink and how much and how often you drink them; how many speeding tickets you have received; how you treat pets; whether any deeds to property you owned contained racially or religiously restrictive covenants; have you ever uttered a racial, ethnic or sexist slur; what religious practices, if any, do you follow and where and when; what clubs or civics groups you have joined; are you hard worker or a slacker; what quirky habits do you have, and on and on and on.

Then, on very short notice, two FBI agents show up to interview you. One talks. One is silent. Both are grim. The silent one takes notes.

The first thing said (after a frightening and ostentatious display of credentials) is that a false statement is a federal crime. In my case, I seem to remember the agent literally reading the “false statement” statute to me. The agent stressed that the statute applies to statements that are “false” because of an affirmative misrepresentation and also because an answer omits material information.

And then the questioning begins. As I remember it, among the first questions was the question: “Are you aware of anything that might embarrass the President of the United States if your nomination goes forward?” Go ahead, and ask for clarification of that question. You won’t get one. The agent will tell you that he or she is not at liberty to sharpen the question. The agent will likely add that you may qualify your answer anyway you think appropriate so long as the answer is true.

In 1992, after serving more than five years as a United States Magistrate Judge, and having already undergone one FBI background check when I was appointed an MJ, I learned that Bush 41 would likely nominate me to become a district judge. Now, I had (and have) a lot of secrets that I did not want to tell anybody about and that included the President and the Senate. But, if a FBI agent asks the question, you confront the ultimate Hobson’s choice.

Let me tell you about a part of my response to the question. One of my daughters, who was then a teenager, had frequented a home that was under FBI surveillance. She dated a very nice Vietnamese boy who lived at that home. One of his older brothers was apparently heavily involved in a significant narcotics distribution ring. Earlier that year, I received a warning from a Justice Department official that my daughter and her friend were not suspects but that during the surveillance she was seen at the home. My kid would be well-advised, I was told, to avoid the home in the future.

I told the interviewing agent all about my daughter’s involvement with the boy and the warning I had received. That in turn prompted a grilling about how I came to know about the surveillance, the date and time of the warning, the name of the person who gave me the warning and much more.

Did the agents who were conducting my interview already know all about my daughter, the surveillance and the warning? While I suspect they did, to this day, I am not certain. Was I really obligated to “rat her out” to prove my bona fides? I have no idea, but I sure felt shitty for having done so. What difference did my revelation make? Apparently none, since the President proceeded with the nomination and the Senate decided to confirm me. But who really knows.

So what is the point? It is extraordinarily intrusive, but not unfair, to require judicial nominees to formally answer the question. If there is anything worth taking away from the depressing controversy involving Justice Douglas, that is the lesson.


The “nuclear option,” the Senate Judiciary Committee and no bozos

Photo credit: Michael Tutton per Creative Commons license.

Photo credit: Michael Tutton per Creative Commons license.

I really don’t care much one way or the other about the Senate using the “nuclear option” and changing the rules to allow a simple majority of the Senate to confirm (or not) the nomination of a person to become a federal district judge or a judge of a court of appeals. If I had a position, I suppose it would be this:  We already have a House of Representatives, and we all know how well that body works! But, I digress.

With the rule change, we are now confronted with a new reality in the confirmation process. I have a selfish interest. With Judge Joe Bataillon, a most able colleague, taking senior status in less than one year, President Obama will get to nominate his successor. There are plenty of really good candidates and it is not my job to weigh in about who is selected. But, I do have a legitimate interest in seeing to it that my next colleague is not a bozo. And this brings me to Andrew Cohen’s fascinating essay in the Atlantic on November 21, 2013, entitled “The Filibuster’s Demise Is Great News for Judicial Confirmation Hearings.

Cohen’s essential point is that the party-opposite now has a strong incentive to really probe the competence of judicial nominees during the Judiciary Committee hearings.  That is, if the opposition party has any sense, members of that party who sit on the Judiciary Committee will probe and put forth substantive criticisms of judicial nominees because the record of those proceedings will provide the last, best chance to convince loyalists that their President’s choice was the wrong one. It also means that the President needs to be certain that his or her nominees have the qualifications that will be necessary to survive intense grilling. He writes:

By the time you read this, a million words will have been read or spoken about what the new limits on the filibuster mean to Washington politics and to the American people. You will have heard all the screeds and justifications from the politicians and the advocates and the lawyers and the lobbyists. Let me just briefly add this note: The coming era means that Senate Judiciary Committee hearings for federal judges now will be consistently more intense, partisan, and revelatory than they have ever been before.

This, folks, is rockin’ good news.

. . .

Knowing they can no longer hold up nominees for no good reason on the Senate floor, Judiciary Committee Republicans instead will be forced to seek substantive ways to justify a decision to vote “no” on Obama nominees. They will ask tougher questions of the nominees and require those nominees to provide more candid and complete answers. They will complain if and when candidates fail to do so. Republicans, in other words, will seek to elicit information about these candidates during hearings that can be used against those candidates when their nominations come up for a vote. And when Democrats become the minority again in the Senate they, too, will employ these tactics.

This is not remotely a bad thing. Judicial nominees should be evaluated more in public on the merits of their work and the arcs of their careers. They should have to reveal more about their judicial ideologies, to the extent they have any. As now-Supreme Court Justice Elena Kagan famously said in 2010 during her love-in with the Judiciary Committee, judicial nominations have become “vapid and hollow” affairs in which the senators (of both parties) prattle on with prepared speeches while the candidates try to offer as little insight as possible about their judicial philosophies.

. . .

So the next judicial appointees to come before the Judiciary Committee are far more likely to face far more hostile questions than their immediate predecessors did. They had better be ready—for their own sake and for the sake of the administration that nominates them. In a perfect world, this would mean that the president, and future presidents, would work harder to nominate only the most qualified candidates and that the confirmation hearings become more substantive affairs.

More candor aimed at the American people? More insight into life-tenured judges? Political battles over the merits of people’s careers rather than over the size of our courts? If that’s the end result here, there is reason to applaud today’s historic change, no matter what side of the aisle you call home.

I do not generally agree with Mr. Cohen, but, on this matter, I hope against hope that he is right. Experience, competence, judgment, temperament and especially work ethic should be thoroughly and substantively (but fairly) probed during Senate Judiciary Committee hearings when a person has been nominated to become a federal district judge. If that happens, going “nuclear” was OK and the next federal district judge from Nebraska won’t be a bozo.


On being a young federal district judge between a rock and hard place

I would not want to be U.S. District Judge Beverly Reid O’Connell of the Central District of California who became a federal district judge in April of this year. She is now confronted with the problem of whether she should rule that her Ninth Circuit Chief Judge, Alex Kozinski, is wrong and that his objection to a class-action settlement must be denied. Read below for the details as provided to me in an e-mail from a thoughtful correspondent:

“Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, made a rare move Monday in a federal courtroom in Los Angeles, speaking as an objector to a proposed class action settlement against an auto company. Kozinski and his wife Marcy Tiffany are 2011 Nissan LEAF electric car owners, and therefore members of a class alleging defects to the company’s lithium ion batteries. Representing themselves, Kozinski and Tiffany filed a scathing objection last month and added more arguments in a document last week. ‘The proposed settlement is a sham, benefiting only class counsel, named plaintiffs and Nissan,’ Kozinski wrote. ‘Class members are getting absolutely nothing of value, while having their rights abrogated.’ In a hearing Monday in front of U.S. District Judge Beverly Reid O’Connell [C.D. – CA], the judge heard the objections directly from Kozinski. She took the matter under submission.”

See also Alison Frankel, Lawyers’ nightmare: When 9th Circuit Chief Judge Kozinski is class objector, Reuters (November 20, 2013).

Speaking of Chief Judge Kozinski, let me tell you a story about the one and only time I “appeared” before him. Between 1982 and 1985, Judge Kozinski served as the Chief Judge of the U.S. Court of Claims. I am pretty sure that my case landed on the judge’s docket soon after his appointment at the ripe old age of 32. I was representing a small country bank. We sued what was then called the Farmers Home Administration (FmHA) over some cattle. Our claim was based upon a hyper-technical reading of Nebraska’s weird version of a section of the Uniform Commercial Code dealing with livestock. The facts were very complicated.

The government filed a motion for summary judgment. The matter was briefed, and the judge ordered oral argument. He kindly allowed me to appear by telephone so I would not have to fly to Washington. The government’s cocky lawyer went first. I listened as Judge Kozinski, speaking with a heavy accent, utterly destroyed the argument made by the government’s counsel.  Whether factually or legally, Judge Kozinski had the government’s lawyer on the ropes. When it came my turn, I was sure I would win because the judge had a good understanding of the facts and appeared to have bought our hyper-technical argument hook, line and sinker. Boy, was I wrong. The judge proceeded to make an exquisite argument, far different and better than the one advanced by the government, why my banker could not prevail.  I scrambled, and danced and bobbed and weaved, but to no avail. Quite correctly, we lost.

When I got off the phone, I walked into my partner’s office. I told, Ed, my partner that I had just appeared before a judge who was the smartest SOB that I had ever encountered or ever feared to encounter in the future. That was true, I said, even though I had trouble understanding him. I concluded our conversation by telling Ed that “I will never forget that Polack.”* And, as this post proves, I haven’t.

And so it is that I have great empathy for Judge Beverly Reid O’Connell as she endeavors to deconstruct what I am sure was a brilliant argument by the Chief Judge of the Ninth Circuit. As a federal trial judge with less than a year’s experience, she is definitely between a rock and a hard place.


*Don’t start on me. Yes, I know Judge Kozinski was born in Bucharest, Romania. Therefore, he isn’t a real Polack. By the way, if you don’t like the word “Polack” that’s your problem. Maybe you like “Polak” better.  I grew up with a bunch of Polacks. One of my dear friends was Pete . . .ski. He didn’t kick my teeth out when I referred to him as “the Polack,” so long as I didn’t throw a punch his way when he introduced me to new girls as “Dick Head.” (“Richard”=”Dick” and “Kopf”=”Head” in German.) Pete . . .ski particularly endeared himself to me and our entire senior class in high school when he did the monkey to the national anthem during an all-school convocation. Hands down, that was the funniest thing I have ever witnessed. Pete . . . ski went on to make a career in Navel (damn, I meant “Naval”) intelligence–pretty good for a Polack. Lastly, and sincerely, for a serious look at the “P” word see Polack, A Small Minded Movie.

PS. Special thanks to a bankruptcy judge, who shall remain nameless, for the tip on the doings in the Ninth Circuit.

On killing the Oxford comma

Pat Borchers, former Dean of the Creighton Law school, and now Director and Professor of Law at the Werner Institute at Creighton, has alerted me to an important event. These days, Pat thinks a lot about clarity and conflict resolution. In that vein, he writes:

This could top the famous debate that raged in Ann Landers’s column about whether toilet paper should be put on the spindle so that the paper has to be pulled toward the user (so essentially over the top) or down (so essentially from the bottom).  Now I’m an “over the top” man, but I managed to keep my friends who were on other side of the issue.

Quietly, almost as if it was hoped the change would go unnoticed, Oxford has killed the Oxford comma. See here.

Pat explains his happiness at the death of what he sees as an unnecessary appendage and then sharpens our writing horizons this way:

I realize that I am one of the few people who cares about such matters, but I say “hooray.” I recognize that in some circumstances the “Oxford comma” can avoid ambiguities. However, the sentences in which the meaning turns on the comma are likely bad sentences that need to be rewritten. Meanwhile, I continue to attempt to educate people on the difference between “to lie” and “to lay.” “To lie” is the intransitive verb, because there is no recipient of its action. “I lie (not lay!) in bed.” However, “I will lay the book on the nightstand.” (“The book” is the recipient of the action — transitive verbs are sort of like conveyor belts.) I now mention a few other favorites. “Who” is the direct object and “whom” is the indirect. “Who is knocking at the door?” “Whom should I send to the door?” “It’s” is the contraction for “it is.” “It’s time to leave for the movie.” “Its” is the possessive of “it.” “Every dog has its day.” “Who’s” is the contraction of “who is” while “whose” is the possessive of “who.” “Who’s knocking at the door?” “I know whose shoes got left in the front hall.” “That” is the restrictive relative pronoun while “which” is the non-restrictive one. “Was” is the past tense while “were” is the subjunctive mood. “I wish it were (not was!) nicer outside today.” Oh dear, I could go on for a long time. But allow me to say that “please bring me carrots, peas and apples” is equally as clear as “please bring me carrots, peas, and apples” and the former requires one fewer (not less!) characters.

Pat, you are a good friend, but I must end with the central question that you leave unanswered:

Why would you ever ask for carrots and peas and apples when you could instead ask for a burger, a slice of onion, fries and a beer?  



Mike, in profile

Mike, in profile

Remember the musical “Hair.”  If you don’t, you are too young.

Anyway, Abby is my super good courtroom deputy.  Abby is fascinating.  She was born in America, but went to school in Nigeria. She speaks Yoruba fluently. She holds a Master’s degree in public administration from the University of Nebraska. She is very smart, very nice and very dedicated.  She also knows something about hair as art. Her seven-year old son, Mike, has become the latest canvass for Abby’s quirky and wonderful artistic pursuit.  Go, Mike!


It’s Baaack

Please read “It’s Not Dead Yet” at Simple Justice.  Among other things, Scott proves how wrong I was when I wrote “Not with a bang but a whimper” regarding Judge Scheindlin’s dispute with the Second Circuit. Now six retired federal district judges with 86 years of combined experience (together with a bunch of law professors) weigh in supporting Judge Scheindlin and urge the Second Circuit, en banc, to reconsider the Panel’s October 31, 2013, Order and the November 13, 2013, Opinion and vacate the Order to the extent it reassigns the Floyd and Ligon matters from Judge Scheindlin to another judge of the Southern District of New York.


The day it ended

He went to Creighton Law school and practiced law in Grand Island, Nebraska. He did what general practice lawyers do. That’s everything. A little of this and a little of that. Divorces? Certainly.

The lawyer had three boys and a wife of 22 years. He liked to watch his kids play sports. He served on the school board. By all accounts, he was a good guy.

I assume he intended to go home. On Wednesday, Nov. 13, 2013, the lawyer walked out of his office at about 6:30 PM. Ironically, in the building where the lawyer and his partners kept their offices a local FBI agent kept his digs as well. That G-man would be of no help.

The lawyer took a few steps. He was standing next to a red Chevrolet Avalanche. A former client, several years removed, is alleged to have shot the lawyer twice from across the street using a rifle. After they rushed him to the hospital, they found a plastic bottle of cola, glasses and an accordion file on the ground.

Twenty-five years and a few weeks earlier, the lawyer became a member of the bar. At 52-years of age, the lawyer died that day at St. Francis Medical Center. Center mass torso shooting, particularly with a rifle, is deadly.

Over 900 people showed up for his funeral at Blessed Sacrament Catholic Church. According to a local TV station, the “funeral attracted everyone from lawyers and judges to members of the Grand Island School Board to River Dawg baseball players.”

I didn’t know Todd Elsbernd. But, I won’t forget him.


Todd V. Elsbernd

Todd V. Elsbernd

It isn’t only left-leaning judges who get into “ethics” trouble

During the discussion last week about Judge Scheindlin. and the Second Circuit, several commentators suggested that it was only left-leaning judges who seemed to get into ethics problems. I did not think that was so, and today I will provide an example of why I don’t think that is so.

Consider the most recent attack on Judge Diane Sykes of the Seventh Circuit. She interviewed Justice Thomas on stage at the Federalist Society’s recent dinner “gala.” Because she allegedly did that at a “fund-raiser,” Representative Louise Slaughter, Arn Pearson, Vice President for Policy & Litigation, Common Cause, and Nan Aron President, Alliance for Justice filed a complaint with the Seventh Circuit against Judge Sykes. See here for the complaint. The only problem was that the dinner lost money and did not serve to raise funds, so said the Federalist Society. See here.

First, two observations about the creepy Federalist Society and its equally strange double, the American Constitution Society (ACS). Here they are:

* The Federalist Society and the ACA are like the Girl Scouts and the Camp Fire Girls of my youth. They wear matching uniforms, parade around mouthing similar slogans, and specialize in making macaroni art that is inedible. In the main, however, they are harmless.

*For among other reasons, I never attend Federalist Society or ACS gatherings ’cause I don’t appreciate fine wines. See attached photo.

Second, just as Judge Scheindlin was subjected to an allegation that she violated the Code of Conduct for United States Judges, Judge Sykes was targeted during the same time frame with an allegation that she too violated the Code. Judge Scheindlin and Judge Sykes do not share the same views on many things. But, neither one deserved the smack.

Finally, and what follows is the important point. The next time you hear that a federal judge has violated the Code of Conduct, think about that claim as a “drive-by shooting.” 


RGK's box wine on the beer 'frige in the garage

RGK’s box wine on the beer ‘frige in the garage

Kash Register and Loyola Law School of LA’s Project for the Innocent

Much of my work involves denying federal habeas petitions from state prisoners convicted of murder. Almost always, they make absurd claims that they are innocent. In that same vein, I constantly remind myself that there is a possibility that one of these days I will toss a habeas petition and condemn an innocent person to death or life in prison all because I am a jaded old man. As an object lesson, and with thanks to an Admiral in the Nebraska Navy, I highly recommend reading this recent piece in the LA Times about a fellow named Kash Register and Loyola Law School’s Project for the Innocent.


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