Re: Purchasing The Best Federal Judges That Money Can Buy

----- Original Message -----

Sent: Tuesday, February 14, 2006 2:22 PM
Subject: Re: Purchasing The Best Federal Judges That Money Can Buy

Hi Larry,

On another subject and you probably have thought of this, but still . . . Dick Cheney is now two for two in regard to his philosophy of shoot first. (of course, Iraq) Do you know that the National Rifle Association's primary rule when it comes to guns is that the potential shooter is to look and think before ever pulling the trigger, even if the likely recipient of a bullet has done something foolish????

Quailgate will be an event that keeps on giving.

Harvey


-------------- Original message --------------

From: "Dean Lawrence R. Velvel" velvel@mslaw.edu

February 14, 2006

Re: Purchasing The Best Federal Judges That Money Can Buy.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

About 25 years ago I was for a period the lead counsel for plaintiff in an antitrust case that grew to be a gigantic litigation that ultimately involved several plaintiffs and several defendants. When the whole thing was finished more than a decade later, the amount of the damages, plus interest, owing to all the plaintiffs collectively was north of 700 million dollars. That was still real money in those days. (As Everett Dirksen said, a million here, a million there, and pretty soon you’re talking about real money -- or did he say a billion here, a billion there?)

In one of the earlier episodes in what became a gigantic antitrust litigation, the plaintiff had to provide so called "answers to interrogatories" submitted by the defendants. The defendants’ "interrogatories" were dozens or scores of questions, most with several subparts, that collectively asked the plaintiff to very repetitively state every claimed detail of an enormous conspiracy that had gone on for over 25 years, since the early to mid 1950s. In order to answer these amazingly repetitive interrogatories in the most effective, efficient and reasonable way, we decided upon an idea that was unusual, but that was not quite unique because it had been famously used a short while before in another antitrust case involving a major, long running conspiracy. Instead of answering each individual interrogatory and subpart individually, we wrote what was called narrative answers to interrogatories. That is, we wrote a detailed history of the conspiracy, from beginning to end, inso far as we already knew it from hundreds of pages of documentary evidence provided to us by a former conspirator who had broken with what some might unkindly call its fellow thieves.

One of the dirty tricks engaged in by every large defendant is to object by rote to answers to interrogatories, to object by claiming a host of defects, most of them spurious as a general rule. This is done to make a plaintiff’s life harder, in the hope that a small plaintiff will not be able to stand the gaff continuously thrown at it by a large, well heeled defendant who can spend gazillions on lawyers and litigations. In the case I’m discussing, the defendant had an additional advantage when making its spurious objections in an effort to harm the plaintiff. Narrative answers to interrogatories were, as said, unusual, if not quite unique, and federal judges generally react poorly to techniques or ideas that are unusual, no matter how meritorious the ideas or techniques may be. So it was with the federal judge before whom we were appearing, even though he really wasn’t a bad guy, so to speak.

That judge, unbeknownst to us, went to a conference of federal judges and, while there, he spoke, again unbeknownst to us, to the judge in the other case in which a plaintiff had previously filed narrative answers to interrogatories. When our judge returned, he told the parties in open court that he had spoken with the other judge, and that the latter had said that what we did had not been done in the other case. Therefore, our judge was upholding the defendants’ motion to throw out our answers to interrogatories, and, unless we submitted a conventional type of amazingly repetitive answers within a given time, the case itself would be thrown out.

Now, there was one overarching thing wrong with what our judge said in open court. It was wrong, it was untrue, to say that what we had done was not done in the other case. It most assuredly was done there. Assuming, as I do, that the two judges had in fact spoken, one must conclude that there was a slip somewhere ’twixt the cup and the lip. Did our judge misdescribe what we had done when he spoke to the other judge? Did he describe it accurately but the other judge misunderstood what he was saying? Did the other judge understand what he was saying but our judge misunderstood the other judge’s response? We’ll never know. All I know is that a serious mistake was somehow made, and we paid the price for this mistake by someone else.

Call me a naif, call me stupid, but to the best of my recollection this was the first time I had heard of a judge speaking privately to another judge about what to do in a case. Since then I have heard on numerous occasions of judges speaking privately with other judges -- and with non-judges too -- about what should be done in a case or in a given class of specific cases. This is a process simply fraught with risk of serious mistakes or bias. There is, after all, no lawyer there, from the side that ends up disadvantaged, to say that a particular idea or fact, or several ideas or facts, are wrong, or are only half the truth, or ignore other salient ideas or facts. The process, rather, is conducted in secret, is conducted in the closet as it were.

As one remembers, it was not long after the episode of the narrative answers that this blogger began to hear about conferences, put on by very conservative, even right wing, groups at fancy watering holes, conferences to which federal judges were invited in order to be taught conservative-to-right wing economic theory about antitrust law -- to be propagandized, really, into conservative-to- right wing economic beliefs that would, and in a relatively short period did, eviscerate antitrust law. Today antitrust law is worth precious little in this country, if you ask me. (Ironically, it apparently is far more effective in Europe because the Europeans absorbed and apply ideas initially taught them by Americans.) One of the reasons antitrust is now of such little value in the U.S. is that the judiciary has adopted the views taught at the right wing conferences.

hese conferences, of course, have much in common with judges consulting with each other privately. For there is nobody there with a knowledgeable different view who will say, and can effectively argue, that what the conservative or right wing speakers are saying is nuts. Or is at minimum highly debatable. The conferences are overwhelmingly one sided.

For reasons partly discussed below, this blogger recently learned -- it had previously escaped him -- that after the right wing conferences dealing with antitrust economics became popular, conservative groups and large corporations began sponsoring right wing conferences at posh watering holes on other subjects too, like environmental law and land use law. They were attended even by federal judges who had cases pending before them on the very subjects about which they were being propagandized at the conference. When some liberal groups began looking into this around the turn of the century -- which now, one would think, means 2000, not 1900 -- they were able to show that attendance at the right wing fests had had an effect on specific, important cases being heard by attendees. But no conservative judge ever gets punished for this, as far as I know. In fact, the only judge I ever heard of taking a rap for such attendance was one who attended a conference that, unusually I b elieve, was put on by a group of plaintiff’s lawyers -- not conservative defense lawyers -- some of whom were appearing in a relevant case before him. That judge was forced off the case by his court of appeals. Meanwhile right wingers -- e.g., Stephen Williams, David Sentelle, and Douglas Ginsburg, all of the D.C. Circuit Court of Appeals -- go to the conferences without any retribution or punishment. And while at conferences judges not only hear right wing views propagandized to them, but also hob nob with, speak with, drink with, play golf with, and sometimes even meet on Boards with right wing figures, right wing lawyers, and others who have pronounced right wing views. The conferences are paid for by rich right wing foundations -- Scaife, Koch, etc. -- and by wealthy, powerful companies involved regularly in litigation where their side is, at minimum, the conservative side.

For a lengthy period of years, from about the late ’80s until the present, much of this had fallen below my personal radar screen. One does remember an op-ed piece about it in The New York Times about five and a half years ago by former liberal federal Judge Abner Mikva. But preponderantly it escaped me until The New York Times discussed it in a January 20, 2006 Editorial Observer editorial by Dorothy Samuels, an editorial that started out with, and seems to have been sparked by, the crookedness of DeLay and Abramoff. Ms. Samuels said federal judges were doing similar things as Congressmen who were on the take for free vacations to some of the world’s fanciest resorts. She said the judges are taking "all-expenses-paid" trips to "private seminars" "held at resorts offering excellent golf, tennis, skiing and spa services." These seminars are "underwritten by monied interests out to influence judges to rule in favor of corporate interests on issues like envir onmental protection and liability for harmful products." (Emphasis added.) "[C]onducted under the innocuous sounding banner of ‘judicial education’ . . . . [i]n reality these slanted multi-day sessions mock the ideal of an independent, impartial judiciary . . . ." She then discussed Scalia’s reprehensible duck hunting trip with Cheney "in 2004, shortly before the Supreme Court heard a big case of personal and political interest to" Cheney, and Scalia’s recent failure to attend John Roberts’ swearing in

because he was teaching a seminar for the Federalist Society at the exclusive
Beaver Creek ski area in Colorado. Justice Scalia permitted the society, an
influential conservative legal group, to promote the event to lawyers, some of
whom may have matters before the Supreme Court now or in the near future, as ‘a
rare opportunity to spend time, both socially and intellectually,’ with a
justice. The pitch had all the dignity and subtlety of a capital fund-raiser for
a senior Ways and Means Committee member.

Samuels then pointed out that an official body of federal judges (the Judicial Conference) made the junketing "rules even more permissive" two years ago, and the American Bar Association committee in charge of the "influential Code of Official Conduct bowed to the wishes of the judiciary’s small but vigorous Resort Caucus. It issued a draft perpetrating judicial junkets."

On January 27th, a week after Samuel’s piece appeared, The Times carried another editorial about federal judges’ "conferenceering." After blasting Scalia for his duck hunting and Federalist society junkets, the paper (rightly) blasted another reactionary justice, Clarence Thomas because he "had accepted thousands of dollars in gifts in recent years, including an $800 leather jacket, a $1,200 set of tires from Nascar, and an extravagant vacation from a conservative activist." The editorial then added:

Federal judges below the Supreme Court level accept dozens of free
vacations each year from well-heeled special interests under the guise of
‘judicial education.’

The judicial lobbying problem is more serious in one respect than the
scandal enveloping Congress. Lawmakers operate in an overtly political
environment, but the decision-making process of judges is supposed to be
impermeable to clever efforts by special interests to buy access and
favor.

The paper concluded by pointing out that Senators Leahy, Feingold and Kerry are going to try to ban the judicial junkets in a lobbying reform bill.

These Times’ editorials brought back to mind the judicial junketeering, the all expenses paid propagandizing of judges, sponsored by conservative-to-reactionary wealthy interests that I had once known of. To find out more about what had been going on in this connection in the last 15 or 20 years or so, I asked one of our computer-savvy people to pull information off the internet. They did so, giving one hard copy of reports, articles and editorials opposing this purchasing of federal judges. Once again you may rightly call me a naif, but I was shocked at the extent of the conservative efforts to turn the national judiciary into the best federal judges that money can buy. The right wing conferences -- held at fancy resorts and dude ranches, replete with golf, tennis, riding, fishing, etc. -- have become a major enterprise. Federal judges go to right wing conferences dealing with issues that they are supposed to resolve -- fairly -- in cases before them. They h ob nob with the types mentioned previously. They have been known to go back home and alter rulings in cases on the issues discussed at a one-sided conference.

The last point is hardly a surprise, is it? Large corporations and wealthy right wing foundations are not likely to keep pouring money into these conferences -- which they call "educational" but which are really transmission belts for unalloyed, unchallenged right wing ideas (read propaganda) -- unless they thought a benefit was accruing to them from the conferences. Big corporations pour money into lobbyists in Washington to get results, after all. Why would anything less be true of these conferences? The results may be long term as the results of real education (and propaganda too) often are. But they exist. And sometimes the results are immediate and occur in pending cases.

Has any of this aroused antipathy from anybody? Has it aroused people to say this is not supposed to be the way of an independent judiciary of integrity? Yep, it sure has aroused some people. There have been two lengthy reports on it since 2000 by a group called the Community Rights Counsel. (One report issued in 2000, was aptly called "Nothing For Free." The other, equally aptly called "Tainted Justice" was issued in 2004.) In 2000 and 2001, around the time of the first report, there were a slew of editorials, in both major and minor newspapers, lambasting what was going on. (Is it reprehensible that sometimes a newspaper, even major papers, apparently without even telling readers what it was doing, simply copied an editorial that had previously appeared elsewhere?) There was Ab Mikva’s op ed piece. There were bills introduced in Congress. But did anything happen that put a stop to the despicable buying of judges that was going on? Of course not. This is America, after al l. In America misconduct continues for decades before it is stopped, if it ever, indeed, is stopped at all. Remember slavery? Remember Jim Crowism? Remember the suppression, and economic oppression, of the working class? Remember the suppression of women?

So nothing happened to stop the buying of judges. The judges were against anything happening to stop it, and it appears that they led the charge against stopping it. And the one judge who really led the charge against stopping the practice, the point man against stopping it, was William Rehnquist.

Nobody should be surprised by this. If you ask me, Rehnquist’s ethics, and his sense of decency and honesty, sometimes (often?) left something to be desired. Shortly after he joined the Supreme Court, Rehnquist found reasons why he could sit on, and be the deciding vote for a 5-4 decision on, a Viet Nam era problem that he had worked on for the Nixon Administration. The case -- very closely to what we are seeing today -- involved widespread army surveillance of civilians, and its chilling effect on first amendment rights. Rehnquist had worked on the problem in the executive branch. He had, in fact, testified to Congress in support of the Executive’s assertion of power to engage in widespread spying on civilians. Rehnquist’s participation in the case in the Supreme Court was shameful, reprehensible, but nobody brings it up these days or for years in the past -- in America we like to forget what Shakespeare called "the evil that men do." Pace Bard, but here it does not live after them. Here it is the evil, not the good, that is "oft interred with their bones," which is one of the reasons that we keep getting leaders who are willing to do evil. (I think I’ve got the Shakespeare quotes right, by the way.) During one of his confirmation processes, Rehnquist claimed a memo he wrote to his Justice (Robert Jackson) when he was a Supreme Court law clerk, a memo extolling Plessy v. Ferguson and arguing for continuation of separate but equal, did not represent his views, but was only a statement of Jackson’s views. How many people believed that? Yet it certainly did not stop his confirmation. Last year this blogger had a piece explaining how he and his colleagues had reprehensibly let Arthur Andersen and its minions off the hook for their gross, criminal misbehavior in the Enron case -- a point that seems to have mainly been ignored by the pundits and experts. Leading the charge against stopping the judicial junketeering to right wing conferences, Rehnquist, like fellow federal judges, placed major emphasis on free speech, the marketplace of ideas, and the desirability of judges getting educated. The idea here is that ideas and alleged facts are being presented at the conferences, and that to stop judges from attending them, to stop judges from accepting all-expenses-paid vacationeering junkets to one-sided right wing conferences, is to deny the judges access to speech and to stifle the operation of the marketplace of ideas. This, to put it bluntly, is unalloyed crap. If judges want to find out about a subject, read a book. If they want to find out about the conservative side, read a conservative book. Harry Truman said that if you want a friend in Washington, get a dog. If a judge wants to learn about a topic, get a book. Better yet, get several books, some on one side, some on the other. Get journal and serious magazine articl es too. Federal judges are supposed to be able to read, after all. What’s more, they have clerks, usually super bright ones, who can read the books and articles and can summarize the material for them, orally, in writing, or both. Supreme Court justices, indeed, each have four clerks.

Or, if a judge feels he or she simply must go to a conference, let an arm of the judiciary -- like the Judicial Conference itself -- put on fair and balanced conferences (not O’Reillyesque fair and balanced conferences, but truly fair and balanced ones), and let the conferences be put on not at a Montana dude ranch or a Florida sunspot, but in, say, Chicago or Minneapolis -- in winter, if you want to test by attendance whether the conferences are really necessary -- or in Washington.

One does have to admit, however, that there is one truly major fault, one huge drawback, to the idea that, if a judge feels he or she must obtain information about a subject, then he or she should read a book, or several books. How, after all, do you play golf, play tennis, fish, hike, or hob nob with the rich and powerful in a book?*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.