Federal Judiciary, “One Ring to Rule Them All”

May 30, 2013

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“Masses are asses” is one of those expressions that capture in the very same words both the cause of a phenomenon, and its outcome. Masses act like asses when they become sure that paradise will come to Earth if they surrender absolute power to a genius ruler. And they wind up being treated like asses when, the power gained, their savior mercilessly herds them into the pen of a “proper society” which turns out to resemble, if anything, Tolkien’s Mordor. Whether in Germany, where Hitler turned an entire generation into criminals and had millions slaughtered in the monstrous war he unleashed, or in Russia where Stalin herded revolutionary workers into gulags and collective farms, or in China where Chairman Mao starved tens of millions of the backward-minded into a cultural transformation (or death), or in Cambodia where Pol Pot killed off a quarter of population for the sake of the Revolution, or in the North Korea where hungry masses are being marched in goosestep towards the better future envisioned by the Father, Son, and Grandpa Kim, or in Iran, brutally lead by the godly ayatollahs towards holiness – no matter when or where, absolute power for the sake of public good invariably results in public misery.

You will ask, what does it have to do with us? In these United States, we don’t put our trust in a man; we are far too wise to give anyone absolute power. Didn’t we throw off the royal yoke to establish a Constitutional republic? Don’t we hold our government accountable by having elections? Isn’t the public, through a free debate, telling the government what’s in the public interest, and not the other way around?

Or so we think; for such declarations testify more to our patriotic pride than to our grasp of reality. In fact, while the answer to the question of “is there arbitrary rule in the United States?” is certainly not a “yes,” it is as certainly not a “no.” Rather, that answer is fractional: two thirds of government is not arbitrary; but one third, is.

Which third? Well, the legislature is not arbitrary, as it is answerable to the public via elections. Executive – ditto. Judiciary – well, that’s another story entirely.

For not only are federal judges not elected; much more importantly, they decided that for the greater good of the public their privileges should be unchecked and, accordingly, granted themselves some rather royal, arbitrary powers. For one, the case law (prior judicial rulings which, cited as “precedent,” determine the outcome of newer cases) allows judges to be, quote, “corrupt and malicious.” Of course, no one tells a federal judge after swearing-in, “congratulations, you can now be as corrupt and malicious as you wish;” but if a judge chooses to, there is nothing that can be done by the cheated party about it – the legalized absence of consequences is tantamount to a direct authorization to be corrupt. And secondly, judges are under no obligation whatsoever to consider the argument of the parties pleading before them; they can, with total impunity, annul it, reverse it, or substitute it with the one of their own imagining, as per their “convictions.”

Those prerogatives are of course not trumpeted, and when a trial is covered by the press, or is by jury, judges are cautious not to appear arbitrary; but where such limelight is absent, court proceedings are but a theater of the absurd.

For instance, while Citizens United famously grants corporations speech rights of individuals, the opposite is not true. Individuals do not enjoy speech rights of corporations: the government grants corporate speech priceless services which it explicitly denies to individuals. Seeing that this literally abridges your speech rights (and your property rights into the bargain, insofar as speech can be a tradable commodity, in books for instance) you file a lawsuit against the government. The corporate media is naturally not interested in covering it since you are trying to encroach on their turf – if all are able to speak equally as per the First amendment, how are corporate publishers who thrive on the notion of prestige of the speech which they provide – the notion you want to destroy by making all speech equal – make money? They are not eager to be thrown out of business. Hence, the press is mum, and you are facing the judge all by yourself.

So, get a good seat to watch this play unroll. Act 1: You file a lawsuit claiming abridgment of you First and Fifth amendment rights; government’s response ignores the fact that you object to government’s policy itself as unconstitutional, but treats you as a conflicted crackpot who, while admitting to be just an individual and therefore conceding ineligibility, perversely thinks he is eligible for what government clearly labeled as for-corporate-use-only. (This trick is known in the profession as “arguing against straw plaintiff.”) Delighted by this absence of a response to your constitutional argument, you congratulate yourself on the upcoming easy victory.

Act 2: You lose based on constitutional argument which the government never made, and facts it never alluded to – the judge having made up both right in his ruling.

Act 3: Government publishes a highly detailed study of the service about which you went to court – which contradicts every “fact” the judge invented on behalf of the government.

Act 4: You file a new lawsuit in a different court based on those newly-available facts, and on deficiencies in first judge’s jurisdiction mentioned in his ruling. The new judge dismisses your case because you did not make the key legal citation which you made twice, building upon it your entire legal argument, and because you did not reference new facts you referenced as the backbone of your factual argument. You appeal, pointing out that your actual argument was never heard, and got substituted with its exact opposite. You lose when the appellate court rules that all is fine.

Act 5: Thoroughly bewildered, and exasperated by brazen arrogance with which judges substitute parties’ arguments with their own imaginings, you sue the judges for fraud because they obviously acted in non-judicial capacity, given that the moment they supplied parties’ argument they became parties to the case – and a party to a case cannot possibly adjudicate the very case it is a party to. Yet your case is dismissed without addressing your argument; you are simply told that judges did act in their judicial capacity, and are therefore immune from prosecution, and you learn into the bargain that, for the greater good of the public, judges can be “corrupt and malicious” and should decide cases according to their “convictions” (facts and law not mentioned, and hence obviously unnecessary – which you of course know by now from your own empirical experience; and you observe to yourself that now you’ve learned the meaning of “judicial activism.”)

So you are left to ponder this zillion-dollar question: Why do courts choose to operate in this grotesque way, having the parties prepare, at great expense, their argument, in a natural expectation that that’s what the judge will base his decision on – and the judge than simply discards this argument, substituting it with his own fantasies?

Judges of course won’t tell us (an excuse that such modus operandi helps them decide cases faster meriting no consideration, tantamount as it is to a claim that ten rotten apples are somehow preferable to one apple that is sound), leaving us to figure out the real answer on our own – which appears to be this. There is a dichotomy between what is stated in Constitution, and what the ruling elites implicitly see as necessary for governance. Constitution spells equality; but the powers-that-be follow Alexander Hamilton’s dictum, derived from the notion that “masses are asses” – that for the “public good” the country is ought to be controlled by “the rich and the well-born.”

As a result, judges see “law and order” as an oxymoron, a contradiction in terms. Law underpins order only in monarchies and suchlike pyramidal societies in which inequality between hillbillies and nabobs is imbedded in the law itself; but in a democracy like ours, with its equality of all before the law, the “rule of law” may lead to anarchy – the very opposite of order, that ultimate “public good.” Law being in the way of the order, judges have to dispense with law.

Or, to phrase it in a more hillbilly language, since masses are but asses, and legislators have to humor the masses to be reelected, the laws they enact are likely asinine too. Is it good for the public to be subjected to asinine laws? Of course, not. Therefore, judges should ignore laws but rule according to their “convictions.”

They of course cannot say it in this many words. Public sensitivities must be accommodated, in line with Machiavelli’s warning that one can stay in power only by fooling the governed, so while it is imperative that the rulers appear to have all character traits that public approves of, and to look kind, honest, truthful, and upright, it is vital that they not be any of that; since those traits, if actually acted on, could be fatal to rulers’ grip on power. So the judiciary has to behave accordingly – to deliberate according to the equalizing Constitution, yet to produce outcomes consistent with Hamiltonian “conviction” that hillbillies need to be kept in their place.

Which from a practical point of view puts judges in a bind. While the ruling must read as if it resulted from evaluation of parties’ constitutional argument, the outcome should not be constitutional if judge’s “convictions” tell him so; law must be sacrificed on the altar of order. Yet how to fit a square peg of unconstitutional decision into the round hole of parties’ constitutional argument? Something has to give – if the judge accurately cited parties’ actual argument as the basis of the ruling, his logic would have to be so warped as to make the judge appear incompetent. If no one read the rulings, it would have been just fine; but lawyers do read them – that’s where they get precedents to argue their cases. So accurately citing parties positions and then, illogically, deciding for a weaker argument is as much of an option for a judge as to agree to being called a “moron.” Hence, the only option left is replacing parties’ actual claims with those that can be plausibly fitted into a made-up constitutional argument that results in the desired, “according to convictions” ruling. A little fraud goes a long way; and since ends justify the means – the ends being no less than Public Good, fraudulent means are fully justified. And luckily, no one other than the parties reads parties’ actual pleadings, so if parties’ argument is substituted with judges’ own imaginings, no one will notice!

While judges’ perspective is Machiavellian, the hillbillies’ side of the same coin is Kafkaesque – for, if judicial rulings are to be examined in the context of parties’ actual argument (which is of course how parties consider them), there is absolutely no rime, reason, or logic to those rulings – for what’s been argued by the parties gets ignored, what wasn’t argued is featured and ruled upon – a procedure that boggles the normal, hillbilly mind as irrational, deliberately arbitrary manifestation of tyrannical power, as denial of justice just as insidious, and yet just as brazen and absolute, as that in Kafka’s “Before the Law.” But none of this matters to a judge: the ruling looks coherent, logical and – most importantly – consistent with the Constitution, when in fact it is anything but. And no one – that is, no one who matters – will notice! Parties’ actual argument is just another tree that fell in the forest of the court system. Does a tree make noise when there is no one to hear? Of course not. Sure there is the cheated, unhappy, indignant litigant – and who cares about him? Let him suffer – he suffers for the Public Good! And to take a sting out of him, rule that judges are immune from prosecution no matter what – isn’t that in our, judges’ hands? Tell the litigant that it is for the Public Good that judges should be allowed to be “corrupt and malicious!”

The “why” and the “how” are now clear; but should the hillbillies – known otherwise as We the People – accept this little arrangement that allows judges to treat us as asses, short-circuiting the Constitution by judging according to “convictions,” thus making mockery of any notion of the rule of law, and turning federal judiciary into “despotic branch,” to quote Thomas Jefferson? And what can we do if we don’t agree?

The first question translates itself into that of “should we pursue justice?” and is, therefore, moot: every culture values justice; seeking justice is a Scriptural commandment.

And what is “justice?” Since it is obviously injustice to give victory to a weaker argument, it follows that cause of justice is served when a judge rules in favor of the party with a stronger one; and substitution of parties’ argument – parties’ argument being the backbone of justice – obviously corrupts it, causing injustice.

Which provides an answer to the second question. Since justice is the outcome of evaluation of parties’ argument and is a matter of procedure, no procedural shortcuts should be allowed, and no substitution of parties’ argument should be permitted. A very simple extra step in the legal procedure would ensure that judges serve the cause of justice: prior to making a decision, judge should have to obtain parties’ approval of the exact wording of how the argument of both sides will be cited in it. Substitution of parties’ argument precluded, the judge will have to choose between issuing a just ruling – the one logically flowing from parties’ actual argument – or to publicly show himself to be incapable of reasoning – since an unjust decision could only be arrived at by doing violence to logic, which is always obvious, and makes it easy to obtain reversal of the unjust decision on appeal. Secondly, Congress should create a way to dismiss a judge for professional incompetence. And thirdly, since justice consists of evaluation of two sets of argument that are submitted by parties, it is an exercise in logic, so benches should be filled by hiring recent college graduates who majored in logic, not by appointing politicians’ buddies seeking a well-paid sinecure.

But to make the judiciary serve the cause of justice we should, first of all, openly face its present shortcomings, if “shortcoming” is the word to describe brazen violations of fact, law, and procedure permitted by judicial impunity. One would think that’s a simple matter. Don’t we control our government? Doesn’t the press aim bright light of publicity upon corruption of public officials? Isn’t judiciary just another branch of government, subjected to the same public scrutiny as its other branches?

Not at all. Somehow, the public is hypnotized into giving judges its unquestioned and unquestioning trust, and the lengths we are willing to go to look the other way are quite incredible. For instance, thinking that a national anti-censorship organization would be interested in covering blatant, government-sponsored violation of individuals’ speech rights in favor of corporations, I submitted a blog entry to its site. It was accepted but, before posting, the sentence that the judge’s decision was arrived at by substitution of government’s argument with judge’s own got removed – they thought that people won’t believe it. To have been censored by an anti-censorship organization was surreal; that it was willing to sacrifice its core values for cover-up of judges was bizarre. It was likewise surreal to discover that the argument that judges can be “corrupt and malicious” came from a Manhattan district attorney who, with great fanfare, prosecuted a number of New York politicians for corrupt practices like bribery, and inventing straw donors to split illegally large campaign contributions into small amounts permitted by election law. The spine-bending that is needed to convince oneself that inventing straw donors to park real donors’ money is reprehensible, but inventing straw plaintiff to swindle the real one is commendable, is quite astounding.

What is it that makes us so twist ourselves in order to not see the problem? Perhaps it is the same reason why Catholics had such hard time acknowledging child molestation by priests. Denial is a normal reaction to events that can potentially upset one’s core values, and Catholics’ reluctance to confront the problem head-on stemmed from instinctively-felt, larger concern: if this could happen, what was there left to believe in? Wasn’t it better for the greater good – the benefit of the Church and the faith – to pretend that nothing happened? And likewise, when confronted with instances of fraud by our judges, we involuntary ask, “what will happen to our social fabric if judges are not awed?” and do nothing. And judges exploit our unconscious fear of chaos, our patriotism, our concern for the common well-being, to give themselves unchecked powers and, as invariably happens with unchecked power, abuse it by short-circuiting laws and facts to deny us our constitutionally-granted liberties.

So what’s worse – to be disillusioned with the judges, or to be cheated by them out of our rights?

In Tolkien’s “Lord of the Rings” – this vast and thrilling exegesis upon Lord Acton’s dictum that “power corrupts, and absolute power corrupts absolutely” – Middle-Earth’s “free peoples,” observing how the very desire for the One ring of power (leaving alone its actual possession) makes one embrace evil, deliberately choose to destroy that ring lest everyone’s freedom is destroyed. Who’s right, Tolkien’s free peoples who want to rid the world of the very option of absolute power, or our federal judiciary which thinks that such power is indispensable, and wields it by substitutionary judging?

Assuredly we are not the Soviet Russia or the Communist China; yet we are as certainly not the land “with liberty and justice for all” we think we are, but one with liberty for some, and justice for very, very few, because of our uncontrolled judiciary. For the sake of our liberty and rule of law, we should deny federal judges their impunity, this One ring of despotism. If the proposition that judges should have the right to be “corrupt and malicious” were put on the ballot, how many would vote for it? Judiciary is, after all, part of the government, which we agree must be under people’s control. Judges stuck in the “corrupt and malicious” loophole into the case law to escape public control; this loophole must be closed.

No corruption. No excuses. No exceptions.

NOTE: this article is based on the following court cases:

Overview Books v. US, Court of Federal Claims 2005-cv-00775

Overview Books v. US, Eastern District Court of New York 2008-cv-01842

Overview Books v. US, Second Circuit Appeals Court 11-0494

Tsitrin v. Lettow, US District Court for the District of Columbia 2011-cv-02057

Tsitrin v. Vitaliano, US Eastern District Court of New York 2011-cv-05589

Tsitrin v. Jacobs, Katzmann and Livingston, US Southern District Court of New York 2012-cv-01411

[first posted on the Ezine Articles site]

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