Reactionary Federal Appellate Judges, And What Can Be Done About Them.

April 9, 2007

Re: Reactionary Federal Appellate Judges,
And What Can Be Done About Them.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

In this poem I shall objections combine
To doctrines that those who imitate swine --
Who too often the federal bench populate --
Choose upon the American people to perpetrate,
And objections to the ones who choose to act swinish,
And who our freedoms thereby diminish
With rulings evil,
Not to say medieval;
And do so when opposite rulings one can say without cavil
Are at least equally justifiable,
At least equally permissible,
And would at least be equally doctrinal.
I also say, lest my purpose you misunderstand,
That I hold no brief for assaulters of our land,
Who used suicidal missiles called aeroplanes,
Causing towers to be engulfed, and then collapse, in flames.
My sympathies lie elsewhere entirely --
With citizens of what once was the land of the free,
Who are threatened by Bushyooian assaults on liberty,
An idea enunciated here years ago
When others were still happy to go with the flow
Of Cheneyesque evil not as known as today
When all know the dark side long has held sway,
When we know our government has lied, killed and tortured --
That it frolics, and eats apples, in Satan’s orchard.

Articles on a ruling by a federal appellate court,
Often (even usually) the name of the author do not report.
Nor the name of a judge who joined him or her,
Nor of any judge who may have been a dissenter.
The same is true on radio and TV.
Which all raises the question of why should this be?
The question can be the more strongly put forth
Because it is usually quite different with the U.S Supreme Court.
There the practice is usually to identify
Author, joiner, concurrer and dissenter
From liberals like Douglas to reactionaries like Willis Van Devanter,
Or, in more modern days, Breyer or Ginsberg on the one hand,
Or Scalia, Thomas or others from the right wing band.
So why is it so different in the courts of appeal,
Where you’d never know who’s a hero, who’s a heel?
Of the former there are a few, only a very few,
Of the latter many, thanks to Raygun and Georges one and two.

From the media one may receive this explanation
For why names of judges it does not mention:
A court of appeals is a unitary body,
So it matters not who speaks, or whether her logic is brilliant or shoddy,
Her words are not hers but of the court anent
(Unless, I guess, spoken in concurrence or dissent).
And this though the judges usually are but three
Of a court of seven or twelve or even twenty.
Need one say the idea is preposterous
And serves only to insure ignorance among us
Of who is liberal and who reactionary,
Of who uses life tenure to push views of the nineteenth century?
And, further, serves greatly to help prevent
An outcry that holds something must be done
About judges whose thinking stops at 1891
Or, if we’re lucky, to a time as near as 1931.
It also makes life easier for the media
Which need not carry in its head an encyclopedia
Or even turn to a legal wikipedia
To learn context and background of a judge’s other decisions,
Facts that would tell the public -- which would develop derision --
That a judge almost always sends one to the chair, or for lethal injection,
Or rarely gives workers or civil righters protection,
Or usually rules against the environment,
Or will never check the President.
And that somehow the same judges’ names seem to appear
On the same kinds of cases year after year
Though the judges for cases are chosen
By clerks who are the selectors
Through random means such as wheels or computers.
Or such anyway is the claim;
While lawyers who know the law’s spurious games --
Who know the client’s fate rides on supposedly random names --
Pray the right ones come out of the hat
Because so often vict’ry or defeat depends on that, and only that.
Yet the media’s ignorance and malfeasance does the great “good”
Of keeping liberals from realizing and complaining
That their views keep getting screwed over
By the same reactionary judges who operate under cover
Provided by the media malfeasance,
And therefore never vociferously insist
That something simply must be done about this,
As they might, likely would,
If the press told them what’s happening, as a competent press should.
(And let me also parenthetically tell
That what’s said here is true as well
Of federal trial courts.
There are trial judges who are greatly reactionary,
Who hate those who promote decency,
Who can always be expected to screw civil rights, the poor or dissenters
Who with anger and anguish become familiar;
Judges who as surely as one can say one, two, three
Are always on the wrong side of history.
Many is the time they too can act with confidence
That their names will be unknown due to media malfeasance
That will cause their names to rarely or never be mentioned in a piece,
So the public doesn’t learn or absorb
The names of those who continuously fleece
Them of their rights, of their liberty, and of decency.
On this trial judges cannot as much as appellate judges bank,
Because trial judges act alone while appellate judges act in a banc,
Yet on it the trial judges can often depend,
Knowing their reputations will escape the rend
They so richly deserve.)

Examples of judges whom I mean are legion;
Because we now are six years deep into Bushian season.
Those he appointed, plus those of his father,
And those from Raygun -- all would rather
Take the opportunity they have now been given
To reverse freedom in a society they think too riven
With it, than to extend assurances that we will be free
Or, where necessary, to do regulatorily
What is necessary for an environmentally livable society.
And in their actions they seem to parrot
The edicts of the 24 carat
Dumkopf who heads our country.
Perhaps the greatest example is the Court of Appeals in Washington,
The court from which so many reactionary Justices come,
Like Scalia, Thomas and now Roberts.
Not to mention the attempts to elevate Bork and pothead Doug Ginsberg
(As opposed to Clinton’s Ginsberg).
Today’s D.C. Court is an all 1890 cast
Of judges who live long in the past,
And whose ideas reflect reaction.

Thus, if you desire a decision from hell,
Just look to David Sentelle.
He so often seems to be there
When some form of scumbaggery pervades the air.
A protégé of Jesse Helms --
Jesse Helms for crying out loud --
He always leads the reactionary crowd
When there is dirty work to be done.
Here is one:
When the right wing felt an apparently fair Whitewater prosecutor
Was not attacking Clinton with sufficient vigor
(Though he was a Republican),
Judge Sentelle went to lunch with reactionaries Helms and Lough Faircloth,
(It should be Lauch Faircloth)
Who against Clinton would rail and was wroth
And then appointed Mad Dog Ken
To rabidly go after the man.
And if you want a vote against the EPA and for bad auto emissions,
Sentelle’s the man for your mission
(Though the recent opinion was just reversed 5 to 4 -- only 5 to 4 (Roberts dissenting).)
If we want to get rid of habeas corpus,
Sentelle is the man for us.
He seems to be everywhere that right wing mischief is found.
He often is in league with his pal Ray Randolph,
A reactionary protégé of America’s most famous reactionary lawyer,
For a freedom cutting opinion, Ray’s your designated sawyer.
In recent years he wrote an opinion against habeas -- his court’s first,
In which he was joined by Ethical John Roberts.
At the time the White House was being lobbied by Ethical John
For a Supreme Court appointment -- which he then won --
There was no chance that Ethical John would vote against the White House position --
His high Court lobbying would have been denied fruition.
The high Court later reversed, Ethical John abstaining,
So now Ray has written a second opinion maiming
The writ of habeas corpus,
Which the Constitution says but for invasion or rebellion shall not be suspended.
But Ray, jointed by Sentelle, says it can nonetheless be upended
Because our enemies are aliens, and Gitmo is not U.S. territory
Though we stole it from Cuba and have kept it for over a century.
And as for what is said by the Constitution,
Well, that can be ignored to serve the Bushyooian Revolution.
And Randolph, joined by Sentelle, is likely filled with hope
That now his position will win, because now Ethical John can vote.
Indeed the Supreme Court has already declined
To review the new opinion that Randolph signed,
With Ethical John being among those
Who of this problem thereby disposed,
At least for the time being,
Though in a future case he will doubtlessly agree
To vote as when lobbying his candidacy.

There are others too on the court in DC
Who promote views that are reactionary.
Senior status Larry Silberman is one of this bunch,
A liberal judge he once threatened to punch.
That is his judicial temperament.
North and Poindexter he voted to free
From a fair conviction for their indecency
In the Iran Contra affair, where
They decided to hell with Congress’ law and policy.
Well, what do you expect
From a guy instrumental in helping elect
Raygun to the presidency?
There is Steven Williams too,
An ex professor, now of the reliably reactionary crew,
As is Douglas Ginsberg of pot fame.
They both would not Microsoft contain
When that engine of poor software construction,
Used bad tactics for anticompetitive destruction
Of more than one competitor that was better.
Ginsberg has also been on the Board
Of a foundation of which you’ve never heard.
It exists to give federal judges a very fancy, all expense paid Montana resort vacation,
Where all they have to do is attend classes that give them education
In the right wing economic credo
Desired by foundation contributors like Texaco,
Exxon, Shell and Monsanto.
Called The Foundation For Research In Economics And The Environment,
It operates so that federal judges will be bent
To the right wing economic point of view
By trips that are not available, dear reader, to the likes of you.
And when newspapers and legislators to this grafting got wise,
The judges got all exercised
That anyone might think a judge might be influenced or bought
By rich, all expense paid trips to Montana intended to affect his thought --
To Montana, where he will play golf and tennis, will hunt, ride and hike,
With no duty but to absorb ideas right wingers like.
Of course, the powerhouses that finance this rightists ball
Obviously disagree with the judges that they won’t be influenced at all.
Else why would they tens and scores of thousands contribute?
Are they in the habit of simply discarding such loot
With no expected return --
Simply because (let’s face it) they have money to burn?
Why do I doubt it?
The DC Circuit’s judges are also big in the Federalist Society,
That right wing group that has achieved great notoriety
Because since it began (with support from Scalia) about 20 to 25 years ago
It has attracted even more right wingers who know
That in such a group there lies the power
Day by day, year by year, hour by hour
To take over, first, high government legal positions and then the judiciary,
A redoubt from which to batter decency and democracy.
And not just in DC, but all over the country.
Appeals judges, who are on the short list for the high Court regularly,
Are active in, or speak to, the Federalist Society.
For judicial advancement it is a key;
To ignore it is to risk a closed Sesame.
In DC there’s been Bork, Scalia, Randolph, Sentelle and Pot Ginsberg,
In the 4th Circuit J. Harvie Wilkinson the Third,
In the Third, Alito, in the Fifth Edith Jones,
In the Seventh Easterbrook, in the Ninth Kozinski and O’Scannlain.
Many -- all? -- nominees or short listees,
Who are joined in the federal judiciary
By many, many who are active in that Open Sesame
The right wing Federalist Society.

As you can tell, the DC Circuit is not the only one
Called into action when there’s right wing work to be done.
Also called is the Fourth, home of J. Harvie Wilkinson
And others who’ve invoked that towering battlement for Executive slime,
That Siegfried line of Executive crime,
The doctrine of state secrets,
Under which the Executive can kidnap you and torture you,
Can negligently or deliberately kill you,
But you have no recourse, your rights lack any salvation,
Because the Executive mouths an incantation:
“State secrets, We are protecting the nation.”
The doctrine was created out of whole cloth in 1953
When the Executive told the Supreme Court a falsity --
A statement about a plane crash now known to be a lie,
Which is not, of course, sufficient for this evil doctrine to die.
So courts keep invoking it to protect
Executive evil most abject.
Is it a mere fillip that this doctrine (being invented in’53) is not in the Constitution found
Yet is used to protect reactionary evil by judges who otherwise go around
Preaching that we must follow original intent?
And is it irony that the latest 4th Circuit opinion this anti-rule-of-law principle invoking
Was written by a judge fittingly named King?
(I couldn’t make this up.)

Let us turn to medical marijuana,
A substance that very sick people in deep pain wanna
Take to relieve their awful suffering
When nothing else will do so.
California says it’s okay.
The Feds say nay.
It’s the Feds’ version of “Let them eat cake.”
The battle came to the Ninth Circuit,
Which is reputed to be relatively liberal (the left coast and all that, you know).
But, in March, California suffered a blow
From three judges -- two from the Ninth Circuit
And one from the conservative eighth (who was “sitting by designation,” it is said)
Though the plaintiff is so afflicted she might think herself better off dead.
(She has “more than ten serious medical conditions, including
an inoperable brain tumor, a seizure disorder, life-
threatening weight loss, nausea, and several chronic pain disorders.” No
other treatment of 35 has worked, while
marijuana “has proven to be of great medical value” for her.)
Did the three federal judges have the humanity to find it in their hearts to grant relief
To a woman whose condition is beyond belief?
Of course not. (Are you nuts?) Instead they invoked abstract doctrine
To keep her in the pain she’s in.
That’s the federal judicial version of being humanitarian.
As for life, liberty and the pursuit of happiness in the Declaration,
Or the general welfare in the Preamble to the Constitution,
Well, the courts always ignored the Declaration and the Preamble.
They, and their inspirational words that generations have hailed
To the federal courts are nothing but phrases to be totally ignored, not “merely” curtailed.
And let me not neglect to tell you the names of the three judges who are oh so
humanitarian.
They are Pregerson, Beam and Paez.
Paez is but one letter different from Baez,
But that letter separates worlds.

Is there anything that can be done to reverse
A situation for decency so perverse?
Well, let us first put into the discard
An idea almost certain not to retard
The current abysmal situation:
The mass media will rarely (if ever) indulge condemnation
Of reactionary judges and what they have done --
For this would cause tremulous men to fear their profit oriented corporation
Would lose bucks one way or another,
To fear that government, Wall Street and advertisers would their papers smother,
And that they themselves would be shown the door --
Would by security men be taken to the ground floor
And out the front door
The way it is done in this Wall Street ridden land.
Where bucks, not weal, always gets the upper hand.
And aside from the fears of the corporate minded jerk
Is the simple fact it would be too much work
For reporters to learn the context and history
Of given issues, and of specific members of the judiciary
With regard to them. It’s so much easier to sparingly report
The most recent decision from an appellate court --
You need not know or read what has come before
From a court or from a judge.
Reading this would be a drudge
Devoutly to be avoided,
The more so because the dollar hungry corporate toads,
Have many newsmen fired, so the remaining have much bigger loads.
What then about the internet, the web, the blogger?
They could be a great defogger,
Of the opaqueness judges now surrounding,
Of the ignorance of judges’ activities abounding.
There are, after all, lots of liberals --
Who in fear now call themselves progressives, as if a
change of name will remove the hate and blame that
reactionaries attach to them.
Some of these liberals are even lawyers or, perhaps better yet
because they might have more time, law professors.
Several liberals could each follow a judge, his precedents and its successors,
And tell us regularly what the judge has done and is doing,
So that we would know if he or she is acting decently
Or is just a sheep the conservative line lowing.
Like much on the net this could arise spontaneously
If people knew its importance and that it could be.
Or perhaps through organization one would later find it arose
Because a liberal person or group had been so disposed.
Whichever, it would be a patriotic service in service of human decency.
There is another thing, too, that could be done,
After some future election that liberals will have won -- hopefully in ’08.
That is to take a leaf from FDR,
Except to do it more honestly by far
Than he did it in 1937,
When he lied about why he was trying to pack the Court,
Which exposed him to devastating retort after devastating retort.
The Congress has power to determine
The number of judges there are shall be on every federal bench.
So it could quite honestly
Say it is providing for two or four or whatever needed number more
New judges on every court,
Who will of course be liberals nominated by a liberal President
Whose nominations Congress will support.
The new judges will specifically be intended to change the courts
From agents of reaction,
From being a towering, third branch reactionary bastion,
To a liberal or at least middle of the road institution
Freed of current indecent, even inhumane ideas in profusion;
So that decent Americans no longer need be
Worried that reactionary judges will stifle human decency,
Or, as by not curbing Bushyooian, Rumsfeldian, Cheneyesque torture, spying
and inhumanity,
Be a threat to freedom and morality in the land of the free.

To readers whom all this may cause to wonder,
My urging would be: Ponder. Ponder.*


* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu. \

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com