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Wednesday, September 14, 2005

Shorter, more truthful, Russ Feingold

Beldar's quasi-fictional paraphrase of Sen. Russell Feingold's questioning on Tuesday of Chief Justice nominee John G. Roberts, Jr. and his answers, if Sen. Feingold had been temporarily stricken with the magic that affected Jim Carey's lawyer-character in the 1997 movie Liar Liar:

Mr. FEINGOLD: I demand that you immediately violate the absolutely clear, unconditional prohibition in section 3A(6) of the Code of Conduct for United States Judges by commenting here on the merits of actual, specific cases and motions that are still pending before you as a judge.

Judge ROBERTS: I can't. That would be unethical.

Mr. FEINGOLD: But I wrote you a letter telling you in advance that I was going to demand that you be unethical. So c'mon, now, be unethical! Chop-chop! Break the most basic rules designed to promote judicial impartiality and public confidence in the judiciary, right here for C-SPAN's cameras!

Judge ROBERTS: No, sir, I won't.

Mr. FEINGOLD: In the name of my most loudly barking moonbat constituents and contributors, I order you to trash your ethics! Regardless of my smarmy façade of mock-respect, I'm going to persist in asking these questions that, if you did answer them, would demonstrate beyond any doubt that you're unfit to be any kind of judge anywhere.

Judge ROBERTS: With due respect, no.

Mr. FEINGOLD: I'm hugely surprised and disappointed that you won't comply with my demand that you commit an offense which would immediately and appropriately prompt the U.S. Judicial Conference to sanction you, and probably prompt us here in the United States Senate to convene a hearing to impeach and remove you from your present office. But I'll move on (continuing to speak incredibly swiftly, because I want to squeeze in the largest number of similarly chickensh*t argumentative questions that will possibly fit in between my smirks for the camera).


UPDATE (Wed Sep 14 @ 9:00am): I've quoted the lengthy actual transcript segment that I'm parodying above in the first comment below. Friends and neighbors, please understand this, which I'd hate to see get excused or confused by my parody above: It is not remotely a "close question" whether it would have been an ethical violation had Judge Roberts answered these questions, and Sen. Russell Feingold knows that just as well as he knows how to find the TV cameras.

The third hyperlink in my parody post above (repeated here) is to a very detailed post I wrote back in 2003, when U.S. Circuit Judge Harry Pregerson of the Ninth Circuit violated the same provision of the Code by commenting to a newspaper reporter about the then-pending rehearing en banc that eventually reversed a Ninth Circuit panel he'd been on, thereby allowing the California recall election that put Gov. Ahh-nold into office. That post also includes hyperlinks to discussions by other legal scholars, including Eugene Volokh, Hugh Hewitt, and Howard Bashman, of Judge Pregerson's inexplicable conduct. Recall also that the federal district judge who presided over the initial trial of the government's antitrust lawsuit against Microsoft was publicly rebuked and disqualified from further proceedings on remand for violating this rule. There are implementing federal statutes involved; there is interpretive precedent confirming that violation of this provision may be entirely adequate constitutional grounds for the Judicial Conference to strip a sitting judge of his/her power, and even revoke his/her pension, and that a violation may indeed be a sufficient constitutional basis for Senate impeachment despite federal judges' normal expectation of life tenure.

The underlying matter that Sens. Feingold and Schumer are fussing about is something that I'm certain has been routine and unchallenged with respect to dozens of past Supreme Court nominees by Presidents from both parties; heck, Justices Douglas and Fortas were practically cabinet members before, during, and after their appointments, going way beyond job interviews! If the Administration is guilty of some impropriety by interviewing him, then so is every Democratic senator with whom he's had private "courtesy interviews," including, I think, every Democratic member of the Judiciary Committee.

If Sens. Feingold and Schumer genuinely believe that Judge Roberts breached some other ethical canon by cooperating with Administration interviews for a potential Supreme Court opening while he was still a sitting judge hearing cases involving the United States as a party (which I'd guess is, oh, maybe 95 percent of the DC Circuit's docket!), then they have at least two remedies. First, they could file a formal complaint with the Chief Judge of the DC Circuit. Second, they could attempt to institute impeachment proceedings in the Senate. Neither of those things will ever happen, because their entire insinuation that there was any ethical impropriety by Judge Roberts is absolutely bogus. I have zero doubt that the Chief Judge of the DC Circuit would immediately dismiss any formal complaint as frivolous, and that by the end of the second press conference, any Senate impeachment proceedings would be blatantly obvious as an unprincipled witchhunt that would have put even that other senator from Wisconsin (whose name starts with a "Mc" and ends with a "Carthy") to shame. So instead, Sen. Feingold just engages in this cheap, smarmy, and insulting conduct — repeatedly asking questions and making insinuations that, if done in a court proceeding, would have landed him in jail for contempt and possibly have threatened his own law license.

But even if we give Sens. Feingold and Schumer the benefit of the doubt on their original accusation — that is, regardless of whether Judge Roberts shouldn't have participated in the interviews, or should thereafter have recused himself from all cases in which the United States was a party — there is absolutely no possible doubt that Judge Roberts discussing that subject in response to Sen. Feingold's questions about a specific case would be a clear violation of Canon 3A(6).

So yes, there is something unethical going on in these proceedings — but it's Sen. Russell Feingold who's doing it, not him who's exposing it. Parody aside, "disgust" is far too mild a word for my reaction.

Posted by Beldar at 03:13 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Shorter, more truthful, Russ Feingold and sent a trackback ping are listed here:

» Between The Feingold Lines from Hard Starboard

Tracked on Sep 14, 2005 11:36:31 AM

» Rip & Read #144 - 2005-09-14 from Rip & Read Blogger Podcast

Tracked on Sep 15, 2005 4:50:30 PM

» Roberts (Yawn) Day 3 and 4 from No Oil for Pacifists

Tracked on Sep 16, 2005 1:01:49 AM


(1) Beldar made the following comment | Sep 14, 2005 8:39:36 AM | Permalink

From the transcript (note that the alternate version printed in the NYT is inexplicably missing some of this):

FEINGOLD: Last month, when I was home in Wisconsin, a constituent came up and said to me that he believed the D.C. Circuit decision in the Hamdan case, a different case, which you joined in, to uphold the government's ability to try a Guantanamo Bay detainee by military commission, should disqualify you from being on the Supreme Court.

This is apart from the issue that Senator Schumer and I wrote you about, which I'll turn to later. I want to know with regard to the substance of the decision, why do you think someone would think that your decision in that case — why would somebody come up to me and say that your decision in that case should disqualify you from consideration as a Supreme Court justice?

ROBERTS: Well, Senator, you've touched upon an area in which I cannot comment. That case is still pending. It's pending before the Supreme Court. Under the Judicial Canons of Ethics, Canon 3A(6), I'm not supposed to comment publicly in any way about a case that's still pending.

FEINGOLD: Not asking you to comment on the case. I'm asking you why you think somebody who I represent would care enough about this issue that they would say this should be a disqualify. In other words, characterize what is the issue in the case that would make somebody that concerned that he would make such a statement.

ROBERTS: Well, the issue involves the same sort of issues that you began the discussion with, the question of civil liberties in wartime.

And certainly I understand people having strong views on that particular question. But whether the decision on the merits was correctly resolved or not, or anything about it, I'm just absolutely prohibited from talking about it by those judicial canons.

There's even an advisory opinion that explains that that canon applies to a Senate confirmation hearing. So my ethical obligation not to comment publicly on a case that's still pending prevents me from saying anything more.

FEINGOLD: Of course I respect your judgment on these matters, but I believe that it's important that a nominee indicate a sense of why people in this country might have some anxiety at this point.

ROBERTS: Well, it's difficult...

FEINGOLD: Events that have occurred since September 11th, and how it creates a climate of fear and particularly fear of government power, that I think it's important not only for members of Congress, but even members of the Supreme Court help minimize. And I'm just trying to get a sense if you feel that concern in the nation.

ROBERTS: I certainly don't minimize the significance of a decision by a court of appeals or by the Supreme Court about the scope of executive authority in this area, about its impact on individual liberties, about the issues of separation of powers and whether the relation between the Congress and the executive, whether the executive is acting with congressional endorsement and support, or in the face of congressional opposition.

Those of course are very sensitive issues and always have been throughout our history. I certainly appreciate that. Those are significant matters. It's just that I'm prohibited from talking about the substance of the case.

FEINGOLD: Let me talk to an aspect of the case that I think you can speak to. Many people were surprised to learn in your questionnaire submitted to the committee that you were interviewed by the attorney general in connection with a possible vacancy on the Supreme Court on April 1st of this year.

Just six years [sic] before, you sat in the panel that heard oral arguments in the Hamdan case. While the case was still pending, before a decision was issued, you had additional interviews in May with the vice president, the White House counsel, Mr. Karl Rove and other top officials.

I'm going to give you an opportunity to explain why you think it was not necessary for you to recuse yourself from this case, but first I'd like to know: Did the possibility of recusal, because you were under serious consideration for Supreme Court, occur to you or was it raised with you at any point prior to the oral argument in the case?

ROBERTS: Senator, that again is a question I can't answer for you. I can't address that.

There's a motion pending in the court seeking to file a petition to recuse and that motion is pending. It's a matter I can't talk about outside of the judicial process.

In addition, because the Hamdan case itself is still pending, I don't think it's appropriate for me to address that.

FEINGOLD: Judge, I'm a little disappointed with that answer. As you know, Senator Schumer and I sent you a letter asking questions about this issue, and then we received a letter on September 1 from the assistant attorney general for legislative affairs at the Department of Justice on your behalf.

It says, quote, Your August 24th letter requested Judge Roberts answer certain questions regarding the D.C. Circuit's recent decision, Hamdan v. Rusmfeld. As you know, Chairman Specter has scheduled hearings on Judge Roberts' nomination to begin immediately after Labor Day. At that time, Judge Roberts will be available to respond to questions from all senators on the committee, unquote.

Now, I took that to mean a little more than telling me you couldn't talk about it. Are you now refusing to answer a question even about when this issue came to your attention?

ROBERTS: Senator, we're talking about the canons of judicial ethics. They are quite clear on the subject. They say I may not talk about a matter that's pending before a court.

FEINGOLD: Even when it first came to your attention?

ROBERTS: That matter is still -- it's pending before the court. My hands are tied. It's not something I can discuss under the canons of ethics.

FEINGOLD: Guess I'll have to move on.

(Boldface mine; some garble and repetition, probably associated with change in stenographers, deleted; couple of typos corrected.)

This is just incredibly insulting. The rough equivalent would be if I said on the record in a courtroom, "Judge, I think you're corrupt. Here's $50 to decide this case for my client. What, you won't take the money? Okay, here's $45, how about that? Still won't? Okay, how about I give you this Gucci leather briefcase? No? Okay, how about if I arrange for someone else to give you the briefcase? Whadya mean 'no'?!?"

IMHO Sen. Specter ought to have interrupted and ruled these questions out of order and publicly shamed Sen. Feingold for asking them.

(2) Beldar made the following comment | Sep 14, 2005 11:21:34 AM | Permalink

A physician-senator shows a better understanding of legal and judicial ethics than lawyer-senator (indeed, Harvard Law honors grad) Feingold:

From the transcripts (here and here), here's a follow-up exchange during questioning today (Wednesday) by Oklahoma's Sen. Tom Coburn:

COBURN: I want to cover one area that was discussed yesterday where the implication was made that you might have ruled on a case violating the judicial ethic, and that was the Hamdan v. Rumsfeld case.

Senator Feingold asked you questions about the case. You invoked the canon code of conduct of U.S. judges that prohibits you from talking about a pending case.

I would like, Mr. Chairman, a copy of that canon to be placed in the record.

SPECTER: Without objection, so ordered.

COBURN: And canon three provides that, A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards and adjudicative responsibilities.

There's another one of those legal words I'm having trouble getting my hands around.

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel, subject to the judge's direction and control.

The official commentary to canon 3A(6) provides the admonition against public comment about the merits of a pending or impending action until completion of the appellate process.

I would also note that any criticism of your participation in this case is unwarranted. Numerous law professors who specialize in legal ethics have stated that you in no way have violated any ethics rules simply because you were considered for another judgeship. The opinion was finalized well before you met with the president -- I believe that's correct -- or was offered this nomination.

Is that correct?


COBURN: The argument, the initial vote, and the drafting of the opinion all took place before there was a Supreme Court vacancy at all. Is that correct?


COBURN: You did not write an opinion on that case. Is that correct?

ROBERTS: I joined Judge Randolph's opinion.

COBURN: Right. But you did not write a separate opinion.


COBURN: That's right.

I would also like to enter into the record the nonpartisan ethicists who agree that Judge Roberts did not violate any ethics rules.

SPECTER: Without objection, it will be make a part of the record.

(3) Beldar made the following comment | Sep 14, 2005 8:47:44 PM | Permalink

Judge Roberts mentioned in a later discussion that he'd been counsel at the DC Circuit level for the intervening States in the federal government's antitrust lawsuit against Microsoft. Thus, he'd be extremely well acquainted with the dressing-down that the DC Circuit gave to U.S. District Judge Thomas Penfield Jackson when it abruptly yanked him off that case for its further proceedings on remand, in large part due to his violations of Canon 3A(6).

(4) Carl Pham made the following comment | Sep 15, 2005 3:09:59 PM | Permalink

Nice rant, Beldar.

But that's the way they are. Lawyers who find it unreasonably chafing to follow the rules become politicians so they can change the rules to suit their fancy.

The thing to do is remember that Russ Feingold (along with most Senators) has no integrity, so that, in the future, when he says stuff that seems on the surface plausible, one remembers that he has no trouble lying with a straight face.

Russell Baker said it was not a bad idea to regard Senators and such in general in much the same way you'd regard an old con-man. Sure, he might be on the up-and-up this time, and you shouldn't overlook that possibility, but be on your guard always for the snow-job 'cause it's just in his blood.

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