Tuli Can't Stop Talking

These are just my thoughts on contemporary issues and an attempt to open up a dialogue.

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Location: New York City

A citizen who cares deeply about the United States Constitution and the Rule of Law.

Sunday, April 17, 2005

Guido Was Right!

Mark Hamblett, who had taken over the reigns of covering the Second Circuit for the New York Law Journal from Debbie Pines several years ago, did what I think was a terrific job of reporting on the recent development in the Guido Calabresi versus George W. Bush controversy.

On June 19, 2004, Judge Guido Calabresi made what many think were intemperate remarks at the American Constitutional Society. The story was broken by the New York Sun and not exactly widely covered contrary to the Second Circuit’s opinion in the case, In re Charges of Judicial Misconduct, 04-8547.

Now rumor has it that Guido is not exactly a fave at the Second Circuit. Rumor has it that other judges are not exactly thrilled to serve on panels with him. After all, the benchmemo has been written and we all know where this case is going so what is with the Socratic method and pontificating at oral argument Guido? It is thought to be a waste of judicial recourses, or time as they say. But, none-the-less, Guido perseveres as if oral argument really made a difference much to the dismay of his cohorts. Not to mention, though I will, that Mr. Bush’s cousin, John Walker, is the Chief Judge of this austere “conclave.”

So, having set the stage, just what exactly did the former dean of Yale Law School, and perennial scholar, and former resident of fascist Italy, have to say.

Bush, he said, "came to power as a result of the illegitimate acts of a legitimate institution."

He continued, "That is what the Supreme Court did in Bush v. Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power [sic]. The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy, that is, the king of Italy had the right to put Mussolini in though he had not won an election and make him prime minister. That is what happened when Hindenburg put Hitler in.

"I'm not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this president is doing.

"It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to…build himself up.

"That is what happened after 1876 when Hayes could not even run again. That is not what happened in Italy because, in fact, the person who was put in there was able to say 'I have done all sorts of things and therefore deserve to win the next election.' That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy."

So, Guido made an accurate historical reference. No one disputes the accuracy of his statements.

Everything hinges on the issue of whether his statement, violated Canon 7 of the Cannons of Judicial Ethics.. And when Judge Calabresi wrote an apology to Walker a week later, in “which he expressed his "profound regret" for his comments. Calabresi said he understood how his remarks "too easily" could be interpreted as taking a partisan position and that he strongly deplored the "politicization of the judiciary," the deal, in judicial misconduct parlance, was sealed.

Walker responded with a memo of his own saying that, while the remarks were meant to make "an academic point with various historical analogies," the issue was whether Calabresi could have been understood as making partisan comments, which are violations of the conduct code.

Then the big news came this week, and big it must have been, because when was the last time the news reported on a judicial misconduct complaint from the Second Circuit, or any court federal court for that matter?

An admonition from the chief judge of the 2nd U.S. Circuit Court of Appeals and a public apology by 2nd Circuit Judge Guido Calabresi were found to be an appropriate sanction for a speech given by Calabresi in which he made an "academic" analogy between Bush v. Gore and the use of legitimate institutions by fascist leaders to cement their rise to power.

Acting on a report filed by a special committee charged with investigating complaints about Calabresi for his comments last year at an American Constitutional Society event, the circuit's Judicial Council concluded that his apology -- coupled with his public admonition by Chief Judge John M. Walker -- was an appropriate sanction for violating the proscription in the Canons of Judicial Ethics against political behavior by judges.

Complaints filed against the judge alleged that his speech advocated the defeat of President George W. Bush in November's election; compared Bush to Adolph Hitler and Benito Mussolini; evidenced political "bigotry" or bias; and demonstrated incompetence by disagreeing with the U.S. Supreme Court's decision in Bush v. Gore.

Well, it seems to me that a sign of competence on Guido’s part is that he disagreed with the Supreme Court on Bush v. Gore. That said, it is a rare thing that I agree with the theory expounded on by Judge Calabresi in his decisions, though often on the outcome. But he cut right to the chase with his disagreement on Bush v. Gore. No question about his competency there.

And surprise, the vaulted Second Circuit agreed:

The council rejected claims that Calabresi was not competent to serve because of his criticism of Bush v. Gore, of which the council said, "As shown by the closely divided vote in the Bush v. Gore decision itself, and the numerous analyses of that decision, reasonable people disagree over the soundness of the opinions in that case." The council dismissed the complaints "in all other respects."

Well, it would seem to me that when a citizen of this country, albeit a judicial officer, states the historical facts, and the SCOTUS diverges from it job to decide legal precedent, and instead decides a case and says that the case is not legal precedent and puts an individual, who is not elected by the democratic will of the people, in the highest office of the most powerful country in the world, that perhaps judges of a higher court than the Second Circuit should be apologizing.

What is the process for a Judicial Misconduct Complaint at SCOTUS?


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