Criticizing Judges — You can do it but….you just have to be careful — UPDATED

The update at the end of this post links to a critique of a judge who relied on his politics to ignore the law. It is the perfect way to rightly call a judge to account for his misguided pronouncements from the bench.

In my life as a lawyer I’ve had plenty of reason to criticize judges for their behavior on the bench and/or their rulings. Judicial rulings can go wrong in at least two ways.  The judge might not be up on the particular law and precedent that should govern his or her decision. That’s the least troublesome way a judge can go wrong because an appeal to a higher court can correct the error.

The second way a judge can go wrong is to decide cases on the basis of the judge’s personal political leaning. The rule of law, not politics, should control the outcome of every case. A judge must put politics aside, and follow the law. Do they always do that? You know the answer to that question, I don’t need to tell you.

Of course, “the law” is not always straightforward. The law can be ambiguous, or it can be subject to differing opinions, all made in good faith and with solid reasoning.  That actually is a welcome development to the best lawyers and judges. It opens the door to some heavy and deep thought in making one’s argument.

Some might say a coin toss would be adequate to resolve the case. That’s never a good idea. It’s contrary to the pursuit of justice. Instead, this situation presents the opportunity to take a hard look at the facts of the case and determine which interpretation of the law will provide the most justice to the parties.

There will be arguments over which alternative is more just than the others.. The judge and the lawyers can have a healthy exchange on that. The judge will decide which argument wins. Assuming the judge has checked his politics at the door to the courthouse, this is an opportunity  for the lawyers to make their best case for the outcome they want. If it’s a close call the judge and the lawyers will defend their position. Ultimately the judge will decide the case and the lawyers will decide whether the should appeal it to a higher court.

They best way for a lawyer to criticize a judge is to write up a dissenting opinion to one the judge’s rulings that the lawyer thinks is clearly wrong. Unless one is a member of the court in question one’s dissenting opinion is without judicial recognition. However, a well written critique can still have power in the public market place. Using the “dissenting opinion” style is simply a safe and possibly influential way to point out where you believe the judge went wrong. With legal and intelligent writing or speech a lawyer can point out a judge’s errors without fear of investigation by the legal ethics committee. Bombastic or threatening discourse can jeopardize one’s license to practice law. “Good faith” is the loadstar of judicial criticism.

Very few lawyers will ever do what I have suggested if they think they will appear before that judge again.  I don’t have to tell you why.

So let’s go to ordinary citizens who believe in good faith that a judge has botched their case. You don’t have to dance on egg shells the way lawyers do. You just have to be reasonable and civil. You sure don’t want to say anything that could be interpreted as a threat. That’s how you bring the police to your door.

Then there is a third category I haven’t mentioned. It’s the Chuck U. Schumer exception to the general rule. He can say and do things that would get jail time for most people. He can make threats and likely get away with it because Democrats will circle the wagons to protect him. Republicans never do that for their miscreants.

Here is Schumer’s latest tirade agains Justice Kavanaugh and Justice Gorsuch. It’s  from Breitbart News:

During a speech about the abortion case before the Supreme Court on Wednesday, Senate Minority Leader Chuck Schumer* (D-NY) stated to Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, “you have released the whirlwind and you will pay the price. You won’t know what hit you, if you go forward with these awful decisions.”

Schumer said, “Now, we stand here today because behind me, inside the walls of this court, the Supreme Court is hearing arguments, as you know, for the first major abortion right cases since [Justice] Kavanaugh and [Justice] Gorsuch came to the bench. We know what’s at stake. Over the last three years, women’s reproductive rights have come under attack in a way we haven’t seen in modern history. From Louisiana, to Missouri, to Texas, Republican legislatures are waging a war on women,[The Dems wore that out years ago. It didn’t work then and it won’t work now] all women, and they’re taking away fundamental rights.[there is no right to abortion] I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you, if you go forward with these awful decisions.”

Chief Justice Roberts chastised Schumer for his “dangerous and threatening remarks.

The awful decision Schumer refers to on abortion, of course. Abortion is a religious sacrament to the likes of Schumer. The terrible decision, if there is one, it’s Roe v. Wade, which found a Constitutional right to abortion even though the U.S. Constitution never addresses it. It ’s simply is not mentioned anywhere in the U.S. Constitution. Nor is there a right of privacy in the Constitution. We might wish it were so, but it is not. Schumer makes his disgusting remarks on the floor of the Senate where he has complete immunity. Coward. If an ordindary person made those remarks to sitting Supreme Court Justices, that would be a problem because Schumer’s words cleary contain a threat to two United States Supreme Court Justices.

It won’t be the end of the world for abortion advocates if Roe v. Wade is reversed. I doubt it will be but it should because it’s not a Constitutional right. Overturning Roe would not end abortions. States could still legalize abortion, and many of them would.

*Schumer is a graduate of Harvard Law School. He passed the New York State Bar Exam but he has never practiced law.

UPDATE: Go here for a great example of how to criticize a judge. In this case, it is the typical problem with judges, making pronouncements and rendering decisions that have a lot to do with they judge’s political leanings and little or nothing to do with substantive law or legal procedure.

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