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Another Impeachment Call: Just Say No

Of all the bad, destructive ideas about courts, one stands out as the worst: turning decisions made from the bench into impeachable offenses.

Unfortunately, this stinker is becoming more bipartisan in recent years, as progressives increasingly echo the conservative mantra about “activist judges.” In a Huffington Post commentary, Nathan Newman, founder of Tech-Progress.org, says, “We should be talking about impeaching Supreme Court Justices who engage in such right-wing judicial activism.”

Actually, no. Not to get technical, but impeachment under the Constitution is limited to “high crimes and misdemeanors.” Courtroom decisions, conservative or progressive, are not criminal. They are not grounds for impeachment.

But looking beyond the law, there’s a practical side: If one judge is impeached for a decision, does anyone believe that would be the end? If we think the misery of hyperpartisan confirmation hearings is bad now, try to imagine a dozen or two judges being hauled in for impeachment hearings, for the crime of heretical judgments, every time party control changes in Congress. No credible system of justice could possibly survive this.

Fortunately, for more than 200 years, talk of impeachment has remained just talk. No state or federal judge has ever been removed from office for a courtroom decision. But any impeachment threat is irresponsible, regardless of party.

In 2011,  we opposed calls by Republican legislators to impeach four Iowa justices for striking down a ban on same-sex marriage. The same in 2010, when Congressmen on both sides of the aisle threatened impeachment against a total of four U.S. Supreme Court justices. In 2009, federal appellate judge Jay Bybee faced impeachment calls over legal memos he wrote while working in the Bush administration. And last winter and spring, the National Center for State Courts reported a record number of impeachment threats against state judges.

As Bert Brandenburg, JAS executive director, said in October 2010, the same can be said again today:

“Almost every American, liberal and conservative, has been angered by particular legal rulings, but that’s because we ask courts to settle tough legal disputes. It is reckless to threaten judges with ouster simply because we don’t like a particular decision. Political threats don’t belong in America’s courtrooms.”

 

 

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Judge Accepted, Disclosed, Millions in Donated Legal Assistance

A prominent federal appeals court judge, who beat back allegations that he acted unethically in President Bush’s Justice Department, accepted more than $3.2 million in free legal services from a firm that now practices before his court.

Ninth U.S. Circuit Court of Appeals Judge Jay S. Bybee has stepped aside from participating in most cases where attorneys from the Los Angeles-based firm, Latham & Watkins, represented parties in a case, a Los Angeles Times article said. The value of the legal services provided Judge Bybee surfaced in his financial disclosure reports and first was made public by The National Law Journal.

Bybee is one of two former Bush administration lawyers who had  a role in drafting the legal policies that permitted harsh interrogation of terror detainees. The Justice Department issued a report last year (see Gavel Grab) concluding the two lawyers had “exercised poor judgment,” but it did not go so far as to find they had engaged in “professional misconduct” and should be disciplined.

Latham & Watkins’ Maureen Mahoney, who helped defend Bybee’s work on the so-called “torture memos,” told National Law Journal that “Judge Bybee has advised us that he will continue to recuse himself from Latham matters for some time.” Read more

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JAS Criticizes Call for Judicial Ousters

Justice at Stake has criticized an Iowa congressman for urging the ousters of “lawless judges” following this week’s order striking down the military’s “don’t ask, don’t tell” ban on gay military personnel (See Gavel Grab).

On Tuesday, Rep. Steve King (R-Iowa, photo at right)) condemned the ruling in a statement titled: “Lawless judges should be removed from the bench.” He added, “Judges should not be rewarded for flagrant disregard of the Rule of Law and the American people should respond by pursuing avenues which would result in the removal of lawless judges from the state and federal bench.”

In a news release issued today, JAS Bert Brandenburg said:

“Almost every American, liberal and conservative, has been angered by particular legal rulings, but that’s because we ask courts to settle tough legal disputes. It is reckless to threaten judges with ouster simply because we don’t like a particular decision. Political threats don’t belong in America’s courtrooms.”

The last call for impeachment of a federal judge over philosophical beliefs was against Jay Bybee, an appellate judge appointed by President George W. Bush, who was criticized for legal memos, prior to becoming a judge, that justified torture of detainees. Justice at Stake criticized those impeachment calls, as well.

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'Expand a Federal Court to Gitmo' for Trials?

Why not try the chief defendants from the 9/11 attacks in a federal court that is securely established at Guantanamo Bay?

That approach would both uphold the rule of law and provide a safe and cost-effective answer in the debate that has now roiled for months over prosecuting the accused plotters before military commissions, or in federal courts, suggest the authors of a Washington Post op-ed.

The commentary was written by former FBI director Louis Freeh and Eugene Sullivan, former chief judge for the U.S. Court of Appeals for the Armed Forces.

They suggested that Congress could expand a federal district court’s jurisdiction to include Guantanamo, and the result would provide for “an economical, secure, credible and fair determination before a civilian federal judge and jury.”

Sen. Lindsey Graham of South Carolina, a Republican, took a sharply different approach this week. He called on Attorney General Eric Holder to try the accused conspirators soon in military tribunals, according to an AFP article. Plans for a civilian trial amount to a “logistical nightmare,” Graham said. Read more

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Holder in New Twist on Detainee-Lawyer Controversy

There’s a new chapter in the fracas over Justice Department lawyers who once worked on behalf of terror suspects detained by the United States, and it involves Attorney General Eric Holder Jr.

Holder didn’t disclose during his confirmation hearings that he signed a friend-of-the-court brief urging the Supreme Court not to uphold the indefinite detention of terror suspect Jose Padilla, a U.S. citizen, according to a New York Times article Thursday.

A Justice Department spokesman said the brief should have been disclosed, but it “was unfortunately and inadvertently missed.” The spokesman said Holder had discussed publicly his views on detention policy on many occasions.

Republican Sen. Jon Kyl of Arizona said Thursday that answer “strains credulity,” and Kyl went on: “Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most publicized terrorism cases?”

An article about the brief, and the failure to disclose it, was written by former Bush administration aides and published in National Review. Read more

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Thursday Media Summary

JUSTICE AT STAKE

Charleston Gazette: Finance court elections
Julie Archer and Carol Warren – 3/10/2010

NATIONAL SECURITY/COURTS

Time: Why the Jihad Jane Case is a Win for the Patriot Act
Massimo Calabresi – 3/11/2010

NY Times: Attacks on Detainee Lawyers Split Conservatives
JOHN SCHWARTZ – 3/10/2010

Wall Street Journal: Trial Move Could Hurt Holder (subscription required)
Evan Perez – 3/10/2010

McClatchy: Commentary: Justice for 9-11 victims shouldn’t involve
military commissions
Talat Hamdani – 3/9/2010

Salon: Military commissions: A bad idea
Lt. Col. Darrel Vandeveld and Joshua Dratel – 3/10/2010

Philadelphia Inquirer: Policy on terror trials in need of an overhaul
David H. Schanzer – 3/11/2010

OneNewsNow: Terrorist trial venue still in discussion
Chad Groening – 3/10/2010

NPR/Morning Edition: ‘Al-Qaeda 7′ Controversy: Detainees And Politics (w/audio) Ari Shapiro – 3/11/2010

Read more

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Monday Media Summary

NATIONAL SECURITY/COURTS

Reuters: Obama aides push back on venue for terrorism trials
Jeremy Pelofsky – 2/26/2010

American Prospect/Tapped: Gates And Holder To Congress: Opposition To Trials “Unprecedented.”
Adam Serwer – 2/25/2010

National Review Online/The Corner: Mass Murder Civilians and Get
Gold-Plated Due Process
Andrew McCarthy – 2/26/2010

Huffington Post: Abuse of Language Threatens American Freedoms
James Zogby – 2/27/2010

Allentown Morning Call: Lawmakers strongly against bringing 9/11
trial to Pennsylvania
Colby Itkowitz – 2/27/2010

NPR: ‘Lady Al-Qaida’ Awaits Sentencing For Afghan Attack (w/audio)
Dina Temple-Raston – 3/1/2010

CITIZENS UNITED

NY Times: Decision Could Allow Anonymous Political Contributions by
Businesses
Griff Palmer – 2/28/2010

Wall Street Journal Law Blog: Will the Citizens United Ruling Prove Harmful to Capitalism?
Ashby Jones – 2/26/2010

Jurist: Citizens United ruling a victory for First Amendment free speech rights
Paul Sherman – 2/26/2010

Wall Street Journal: The Case for Corporate Political Spending
Bradley Smith – 2/27/2010

San Diego News Room: Brave new world for campaign finance
Michael Rosen – 2/26/2010

MERIT SELECTION

American Courthouse: “No Accountability”
Dan Pero – 2/26/2010

TORTURE MEMOS

NY Times: Justice Dept. Reveals More Missing E-Mail Files
ERIC LICHTBLAU – 2/27/2010

Read more

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Sunday Media Summary

CITIZENS UNITED

The New Republic: Roberts versus Roberts
Jeffrey Rosen – 2/17/2010

Salon: Discussing Citizens United with Larry Lessig
Glenn Greenwald – 2/17/2010

NATIONAL SECURITY/COURTS

The New Republic: “A War Is A War. A War Is Not A Crime, And You
Don’t Bring Your Enemies To A Courthouse.”
Marty Peretz – 2/23/2010

MERIT SELECTION

ABA Journal: LetÂ’s Leave Politics Out of It
Carolyn B. Lamm – 3/1/2010

TORTURE MEMOS

Slate: David Margolis Is Wrong
David Luban – 2/22/2010

Slate: Torture Bored
Dahlia Lithwick – 2/22/2010

The Atlantic: “Poor Judgment” — Yoo, Bybee And The Torture Memos
Marc Ambinder – 2/19/2010

U.S. News & World Report: John Yoo Defends ‘Torture Memo,’ Blasts
Bush Administration
Alex Kingsbury – 2/18/2010

ABA Journal: Lawmakers Call for Wider Probe Into Yoo & Bybee Terrorism Memos
Martha Neil – 2/26/2010

Newsweek/Declassified: Justice Report Provides Gruesome New Details
About CIA Program
Michael Isikoff – 2/23/2010

PATRIOT ACT RENEWAL

National Review Online/The Corner: Shhhhh, Don’t Tell Anyone — The Patriot Act Was Reauthorized
Andrew McCarthy – 2/26/2010

Read more

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'Torture Memo' Authors Won't Be Disciplined

It’s official: there will be no discipline for two former Bush administration lawyers who had  a role in drafting the legal policies that permitted harsh interrogation of detainees.

The Justice Department issued a report concluding the two lawyers “exercised poor judgment,” but it did not go so far as to find they had engaged in “professional misconduct” and should be disciplined, the Washington Post reported. The two are Judge Jay Bybee, who sits on a federal appeals court in Nevada, and John S. Yoo.

In months preceding the final Justice Department report, Judge Bybee had been the target of some critics urging impeachment. But Justice at Stake executive director Bert Brandenburg took issue with that approach, calling impeachment of judges for their legal views the “atomic bomb of American politics” and warning that impeaching Judge Bybee  for his memos on interrogating detainees would set a dangerous precedent (see Gavel Grab posts.)

Following release of the Justice Department report, Sen. Patrick Leahy, D-Vt. and chairman of the Senate Judiciary Committee, has urged Judge Bybee to resign from the bench. A lawyer for the judge, however, labeled the report’s finding a “vindication” of her client.

That view was disputed by a Los Angeles Times editorial saying the Justice Department report was “far from a vindication for John C. Yoo and Jay S. Bybee’s shamefully narrow interpretations of laws against torture and extravagant views about presidential power.” The Washington Post published an editorial entitled, “No punishment for torture memos’ authors, but no exoneration, either.”

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Appeal Bid: When a Judge Behaves Badly…

How closely will the Supreme Court review the integrity of lower courts?

An answer may come in an unusual case where a Texas defendant, who was sentenced to death, has told the high court that the judge in his murder trial had been sleeping with the prosecutor.

A New York Times article documents the story of defendant Charles Dean Hood; Texas Judge Verla Sue Holland; and the prosecutor, Thomas S. O’Connell Jr. It notes that “it took Mr. Hood almost 20 years to establish” as fact the relationship of judge and prosecutor, but they ultimately “admitted it.”

Seeking a Supreme Court appeal, Hood has enlisted support in a brief from 21 former judges and prosecutors. Thirty legal ethics experts also filed a supportive brief saying, “A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself.”

“The Supreme Court has lately taken some interest in the integrity of the judicial system,” the Times article notes. It points to the landmark Caperton v. Massey decision,  when the Supreme Court required a judge to step aside from a case because a party to it had given him massive political support. (See Gavel Grab or visit Justice at Stake’s resource page about Caperton.)

In another matter the high court directed a federal appeals court to take  another look at a surprising development;  jurors in a capital murder case gave the trial judge a gift of chocolate fashioned as male genitalia.

Texas’ top criminal court ruled in Hood’s case that he had taken too long bring up the issue of whether a conflict of interest was presented by an affair between a judge and a prosecutor. (See earlier Gavel Grab report.)

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