Call me Rich?

After the Urbom celebration, I embraced an old friend who is running for the U.S. Senate and who happens to be one of the best trial lawyers of my generation. He has a national reputation. We have been close friends for over 40 yours.

Since 1987 when I became a magistrate judge, our friendship has been necessarily distant because he is a trial lawyer and I am judge. We never socialize. But I know if I ever needed serious help my friend would come running and I would do the same for him.

Anyway, when I saw my friend, he was heading to the elevator. I was standing with some others lawyers, and I yelled his first name, He turned and walked over. He extended his hand and said something like “Judge, how nice to see you.”  We engaged in a short conversation, and then I hugged him as he turned to leave. I said I missed seeing him and we parted.

I don’t like being called judge when I am not judging. It puts a distance between the other person and me.  But, it is awkward. Social conventions require formalities and when such a convention is not followed the omission can be misunderstood (often by those who are inclined to see bad in good).

Today, I received the always fun and informative Jackson List.  It appears that the problem of what to call a judge outside of the courtroom confronts the Justices as well.  Here are the guts of the most recent letter, which I find fascinating:

For the Jackson List:

In early 1948, Dr. Jacob Billikopf wrote from Philadelphia, his home, to Justice Robert H. Jackson at the Supreme Court of the United States. Dr. Billikopf, a noted national leader in social work, Jewish philanthropy, labor relations and other pursuits, wrote as a trustee and chairman of the executive committee of Howard University in Washington, D.C.

Dr. Billikopf explained that he and another Howard University trustee had been, for the past few years, hosting private dinner meetings on campus “for the purpose of making friends for that great institution.” He explained that Howard’s president Dr. Mordecai Johnson, members of his administrative staff, “key men” on the faculty and 25-30 other guests attended the dinners. Dropping mention that Jackson’s colleagues Justices William O. Douglas and Felix Frankfurter had been guests of honor at previous dinners, Billikopf asked Jackson if he would be the honored guest at dinner a month hence.

Justice Jackson promptly dictated and sent back his positive answer. It was contingent, he explained, on another pending matter not claiming his schedule on the date in question. Although Billikopf was not someone who Jackson knew well, he signed his short letter “Bob.”

Billikopf, writing back immediately, focused first on Jackson’s signature:

Dear Mr. Justice:

When my good friend, Benjamin Cardozo, was appointed to the Supreme Court, I naturally greeted him as Mr. Justice. “Don’t call me Mr. Justice. Please don’t,” said he. “How then should you be addressed?” “Call me Ben,” was the reply. Of course I couldn’t be guilty of such irreverence and so we reached a compromise.

Now, then, when I received your letter signed BOB I was naturally flattered and then it occurred to me that it must have been a case of lapsus calami [a slip of the pen]. …

In the heart of his letter, Billikopf wrote that that he was “so happy” that Jackson had accepted the invitation, if somewhat contingently. Billikopf proposed an alternative date, one week later.

For Jackson, that date, February 27th, was clear. On that Friday evening, Jackson attended a private dinner in Frazier Hall at Howard University. He spoke to the group about his 1945-46 work as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

Justice Jackson’s rough notes, from which he spoke, indicate that he discussed the Nuremberg trial and its lasting implications. He described how the Nuremberg judgment recognized individual responsibility under international law. Jackson explained that international law fetters national sovereignty in ways that resemble how the 14th Amendment to the U.S. Constitution limits the sovereignty of States to violate the rights of individuals.

Following the dinner, Dr. Johnson wrote to Justice Jackson, thanking him for his presence and his remarks. Noting that Jackson and his Nuremberg colleagues had worked there to establish “world community,” Johnson stated his “hope that our own nation may come to exercise increasingly effective leadership toward its realization.”

There is, interestingly, no record of a Jackson response to Billikopf’s comment on Jackson’s “Bob” signature. Following that Billikopf letter, Jackson’s secretary, not he, handled the additional pre-dinner correspondence.

At the Howard University dinner, Billikopf surely greeted Jackson and introduced him to the group as “Mr. Justice.” That would have been consistent with half of what I suspect were Billikopf’s modes of interacting with his friend Justice Cardozo. Their “compromise” was, I think, that Billikopf called him “Ben” in private communication and “Mr. Justice” in public settings.

* * *

This got me thinking. I wonder how readers (particularly trial judges and trial lawyers} handle these situations. If you get a chance, add a comment. I am interested in your views, particularly your “war stories.” Thanks!

And once again, a “shout out” to the delightful Jackson List and Professor John Q. Barrett.*

RGK

*You can go to this link to subscribe to the Jackson List which is delivered by private e-mail. It is free.

 

 

The grind

Did my jury orientation yesterday preparatory to voir dire. For the lecture part, I sat in a chair in front of the panel as I was slightly out of breath. Was able to walk around the courtroom with the prospective jurors as I conducted the courtroom “tour” I always give during orientation. (See here and here for a brief description of my “walk about.”)

At the last moment, and while I was doing the orientation, the defendant decided to plead guilty before Magistrate Judge Zwart. (She is such a great help.) Trial cancelled and jurors excused with my thanks. I was relieved. Summoning the energy to try this little criminal case loomed larger than expected. Get my second infusion of the second cycle in a few hours, may have to rethink my stamina when it comes to daily work. We shall see.

RGK

 

More bull shit from the humorously named “Center for Public Integrity”

Using inaccurate and incendiary language, like “Federal judges plead guilty” and “Juris imprudence: Litigants reeling after judges admit conflicts of interest,”  here is more bullshit from the Center for Public Integrity on federal judicial ethics.  As I have said before, those folks wouldn’t know a thing about judicial ethics if it bit them in the ass. This time around the Center investigated whether federal appellate judges decided cases in which they may have owned equity interests in a party. They found a few.

To be precise, they found “0.02 percent of the 109,000 total cases decided in the U.S. Courts of Appeals over the last three years” involved such a problem. If anything, this analysis proves that the present system of conflict checking for financial interests in a party is about as close to perfection as a human can design. Clearly, the Center looks for any little error in an effort to drive judges out of the stock market altogether. Since I don’t own stocks, I don’t give a damn. That’s my choice, but this bunch is not going to dictate to me what investments I own.

RGK

 

More on clemency from someone who saw it up close

From a former staff attorney at of the Office of the Pardon Attorney, I received the following e-mail regarding clemency. Because it speaks for itself, I merely reprint it:

I couldn’t help but notice your recent posts about commutation and the Hasan case. I am intimately familiar with the case because at the time her application was pending I was a staff attorney at the Office of the Pardon Attorney (my tenure was 1997-2010), although the case was not assigned to me. With respect to the recent clemency initiative, I will only say that your bullshit detector is as sharp as ever. Obama and Holder didn’t even have to read Margy’s excellent article to know that something was terribly wrong with the pardon advisory process. In September 2009, I delivered the attached letter to a lawyer in the West Wing in which I described in some detail what was going on. The letter does contain one error. I pointed out that during the entire Bush Administration, the Justice Department recommended favorably in a grand total of five commutation cases out of about 8,500 applications. Upon further review, I realized that I miscounted. Actually, there were six favorable recommendations. My bad.

The main reason they are getting around to this now, in my view, is that Dafna Linzer published a devastating series of articles in the Washington Post (collected here) documenting for a wide audience the deplorable stewardship of the pardon program by the Justice Department. Among other things, Dafna proved in a statistically rigorous fashion that whites were four times more likely get a pardon than blacks. Of course, if a private corporation had a similar record of racial discrimination the Civil Rights Division would file suit against it. In 2011, after I left the office, I highlighted Dafna’s findings in the attached post on the ACS Blog. Even then, the White House unwilling to pull the plug on the pardon office. In 2012, they directed the office to give them some favorable commutation recommendations. It took the Department more than a year to respond and they managed to find only eight cases that they thought were worthy of favorable consideration. Only then did the White House finally admit that they had to make a change.

Even so, the most ardent supporters of the new clemency initiative are letting the Department and the President off the hook too easily. Many who’ve been working on the problem of over-incarceration are so excited by the prospect that something significant might actually happen are either not noticing (or refusing to acknowledge) that the Department has articulated a very narrow conception of executive clemency. The criteria announced by the DAG are limited to cases in which, for one reason or another, the applicant would have received a shorter sentence if he or she was convicted and sentenced today. The margins are fuzzy, to be sure, but that’s the basic idea. This could be because of a change in the substantive law (like a Sup. Ct. case) or an amendment to the Sentencing Guidelines or the Department’s charging policies. It is simply not true that this represents an “expansion” of the traditional criteria for commutations, as the Department claims. In fact, it is a contraction of the criteria. The traditional criteria are listed in the US Attorneys Manual (posted on OPA’s website) and also include unrewarded cooperation, illness of the applicant or a family member and disparity of sentence with a similarly situated defendant. In practice, it has also included extraordinary rehabilitation while incarcerated, the defendant’s youth at the time of the offense, and his or her role in the offense, among other things. In short, any relevant equitable consideration may have weight in the clemency process.

Generally speaking, this broader conception of clemency is consistent with Hamilton’s statement in the Federalist Papers (No. 74) that the purpose of the pardon power is, in part, to provide “easy access” to mercy in cases of “unfortunate guilt.” This is necessary because we have a persistent tendency to be overly harsh when sentencing criminal defendants. Hence justice should be tempered by mercy. It means that forgiveness is a risk worth taking, even in a Republic otherwise dedicated to the rule of law. Forgiveness is rationally justified, because each of us runs a nonnegligible risk of finding ourselves in a situation in which we too will want to appeal for the lenient treatment that mercy affords, namely to be given less than the full measure of our just deserts. Everyone is thus better off living in a society in which there exists a mechanism for making exceptions to the strictures of retributive justice in cases of “unfortunate guilt.”

By contrast, notice that Obama and DOJ are still articulating a view that commutation should be limited to doing justice in some sense, confined to cases in which the applicant arguably deserves a lower sentence. For example, Obama recently granted commutation to a poor fellow who was serving a longer sentence because a typo in his PSR adversely affected his Guidelines range. But Obama wasn’t doing this guy a favor. After all, the defendant was serving an illegal sentence; he was entitled to a sentence reduction if anyone is. I’m not criticizing Obama for doing it. I’m simply saying that he wasn’t being merciful. Call this the “rule-of-law lite,” if you will. The inherent message is the President’s exercise of discretion is justified only if it serves or enhances retributive concerns.

The notion that we can govern ourselves entirely by the rule of law is an illusion. As the great sociologist Otto Kirchheimer once observed, the idea that “an omniscient legislator could instruct and enlighten the judge enough to avoid any need for further consideration of the case did not survive the emergence of Napoleon. … [W]hatever the changing allocation principles, the need for an instrument with which to correct the actions of courts has never been doubted since the rationalist intermezzo of the Enlightenment.” The Framer’s decision to include the pardon power in the Constitution is a testament to the inherent limits of human reason. No matter how hard we try we will never reach a state of “administrative perfection.” Blakely v. Washington, 542 U.S. 296, 313 (2004) (noting that the Framers’ “paradigm for criminal justice” rejected “the civil-law ideal of administrative perfection”). Thus, in its first gloss on the substantive reach of the Pardon Clause, it seemed apparent to the Supreme Court that “[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality.” Ex parte Wells, 59 U.S. (18 How.) 307, 310 (1855) (emphasis added). In my view, Obama is systematically excluding mercy as a basis for clemency and he is presumably doing it to insulate himself from the charge that he is “soft on crime.”

I’ve been criticized for looking a gift horse in the mouth. That is not true; as a defense attorney, I’ll take what I can get. If the Department takes this project seriously and adheres to their own announced criteria, there are approximately five thousand prisoners who will be eligible to have their sentences reduced, even on a narrow view of the pardon power. And that is certainly an improvement over what we’ve seen for many years, as is the appointment of new Pardon Attorney. The problem is that Obama is setting a precedent. My concern is that we are implicitly accepting the assertion that these criteria define the scope of the proper use of the power. The new Pardon Attorney couldn’t be blamed if that’s the conclusion she draws from this experience. Nor could the next President. But I think it remains a morally impoverished and historically uninformed conception of the pardon power. Principles matter in the long run.

Best regards, Sam Samuel T. Morison

Letter to the White House: Cuellar letter (1)

UPDATE:  As I read this post over, I am afraid I condemned Sam’s analysis with faint praise. This is a powerful piece that deserves a lot of attention. 

About Urbom

Alexander Payne, the Nebraska-born filmmaker, introduces Schmidt, the protagonist in About Schmidt, with one minute of silence. The scene ends with Schmidt, alone in his spare office filled with boxes, watching the clock tick to five in the afternoon on his last day of work. It is a poignant piece of great beauty.

And that brings me to Warren Urbom’s last day at work after serving 44 years as a federal district judge in Lincoln, Nebraska. Unlike Schmidt, Urbom’s last day, while just as poignant as Schmidt’s, was a joyous occasion celebrated by hundreds. It is beautifully reported by Lori Pilger (a truly gifted journalist) in the Lincoln Journal Star and you can find it here. It is worth reading even if you didn’t know Warren. After all, as Chief Judge Laurie Smith Camp said yesterday, intending no hyperbole, Warren Urbom was “one of the greatest judges who ever lived.”

RGK

PS I will have more on Warren, but not now.

 

 

What I would give for a wig!

Photo Credit: Nate Oman and Concurring Opinions. See The Tragic End of Wigs (July 13, 2007)

Photo Credit: Nate Oman and Concurring Opinions. See The Tragic End of Wigs (July 13, 2007)

Pick a jury in a criminal case on Monday.  Never done that bald. Sure wish I could wear a wig.

Wait. Now that I think about it, the blinding radiance of my bald pate in the stark lights will illuminate my literal and figurative ascension to the bench. Neato!

RGK

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