Judicial oath to uphold the constitution is not just inane, it is anti-judicial

I recently attended a lecture by Mr. Gerald Walpin, the author of a book titled “The Supreme Court vs. the Constitution.” The tenor of his thesis was easily discernible from the title – the constitutional originalist’s lamentations on the “judicial activism,” i.e. judges’ abrogation of their oath to uphold the constitution, in favor of coming up with interpretations so novel that they constitute legislating (or, better yet, amending the constitution) from the bench.

I guess only a lawyer would enjoy the reasoning which underpins that thesis; what interested me a whole lot more was this question: why on Earth would federal judges be taking an oath to uphold the Constitution at all?

After all, judges’ only raison d’etre is to resolve disputes that arise when in our “pursuit of happiness” we bump into our fellow-citizens’ rights, or into the government-mandated limits. There is absolutely nothing else judges do (or, at least, nothing else they should do – Mr. Snowden’s disclosures, of course. tell us that they do a whole lot more, none of which is to their credit). All judicial decisions as to constitutionality of statutes arise, of necessity, only from lawsuits.

And in a lawsuit, there are two opposite sides, the plaintiff and the defendant, each claiming that his or her position conforms to the Constitution, while that of the opponents violates it. So in a natural flow of action of a lawsuit, lawyers already bring up and argue constitutional concerns, each out-constitutionalizing the other. Just by the nature of the process, investigation of constitutionality is done by the lawyers; all that is required from a judge is to impartially decide whose constitutional argument was more relevant, and stronger. No matter which side wins, the Constitution will be “upheld” for the very simple reason that each party’s argument is of necessity rooted in the Constitution. It would only be possible for a judge to make an “unconstitutional” decision if a lawyer arguing the case actually claimed that his argument was in fact unconstitutional, and the judge than decided in favor of this, admittedly unconstitutional argument. But no lawyer is so stupid as to advance an argument he himself admits to be unconstitutional.

Thus, under the system where the lawyers fight it out and the judge evaluates their performance and awards victory accordingly, it is simply impossible for the judge to not “uphold the Constitution;” the judicial oath to uphold the constitution is therefore simply inane.

But it gets worse, for this is not our system; judges jump in and do their own lawyering for the parties, themselves becoming parties to the case they hear. If their motivation for abandoning impartiality is their oath to uphold the Constitution, than that oath is actually anti-judicial, giving a judge the urge to do his or her own legal and factual analysis, and inject his or her own views on what is constitutional and what isn’t, completely destroying the integrity of the judicial process by turning it into a Kafkaesque farce.

The judicial oath to uphold the Constitution thus turns the “judicial procedure” into an “anti-judicial procedure” in which the judge plays a role of a party to the case which he is forbidden to play by the very nature of the judicial process.

Does the fact that Mr. Walpin is totally unaware of this, and proceeds with predictable and naïve complaining about “judicial activism” which makes his book a platitude, mean that he himself is stupid and naïve? Is this the reason he is exalting the judicial oath without noticing that is not just meaningless, but utterly counter-productive?

I don’t think so. He is a typical representative of our legal system, and his views are rather an indicator of how primitive the mainstream legal thinking still is. Judicial procedure is today where, say, medicine was before scientific observation kicked in, before circulation of blood had been discovered, before bacteria was found, when the diagnosis was limited to identification of temperament, and the cure consisted of bloodletting and purgation to re-balance it. Some six millennia since mankind’s dawn, the sciences made gigantic strides; but the legal system never moved out of the Dark Ages.

To move it out of there, we need to change the judicial practice and the judicial oath underpinning it. How about this one: “I swear to examine parties’ factual and legal argument impartially and according to the rules of logic, giving victory to the stronger one. I realize that substitution of parties’ argument with that of my own would violate judicial process, would rightly cause me to be sued by the wronged party, and would result in my being fired.”

Constitution would do best if its cause is advanced by lawyers, not by judges. Judges should stay away from interpreting the Constitution, and be fired if they try. This is the proper lesson to draw from Mr. Walpin’s book.

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New York Times: President Obama and Senate both know that “due process of the law” is a sham

How else does one interpret this report in the New York Times of a squabble between President Obama and the Senate over appellate court nominees?

To think of it, why won’t the Senate just approve whomever the president nominates? After all, what is judging but examining the argument of the plaintiff, comparing it to the argument of the defendant, and awarding victory to the side with a stronger argument? If so, all that’s needed in a nominee is a reasonably strong powers of logical thinking. So is it that the senators think that president’s candidates are deficient in their mental abilities?

The very way you put the question, dear reader, reveals that you have no clue as to the actual nature of judging – which is the process of deciding the issue irrespective of what the plaintiff and the defendant say. (Their exchange of very learned legal and factual argument for which they have to pay lawyers thousands upon thousands of dollars in foolish expectation that victory is theirs if their argument is more sound because they naively expect that judge “impartially” considers their argument, is just for the show) – judging is done not by operation of logic, but by judges’ whim (or “convictions,” which is exactly the same); the judge than simply concocts a plausible justification in the “opinion and order” based on “law” and “facts” of judges’s own invention, that has no basis whatsoever in parties’ actual factual and legal argument, or for that matter, in actual reality. Anything goes in the so-called “due process of the law” – the “process” which is totally unencumbered by demands of fact, or logic, or honesty, or decency.

(If anything, the “due process of the law” seems to be one continuous violation of the ironclad, axiomatic rule of judging – that a judge cannot be a party to the case brought before him.)

In other words, because the judicial “procedure” – if it can be called so – is utterly arbitrary, and because both the republicans and the democrats understand this, they want to use this arbitrary feature of the so-called “due process of the law” to their advantage. If a democrat is appointed, one set of decisions will be declared consistent with the Constitution; if a Republican one, exactly the opposite decisions will be discovered to conform to it. Hence, much more is at stake than whose friend will get the nicely-paying sinecure and feed at the government’s trough. This is about which party will get the arbitrary power to read into laws what they like, and pull the country in their direction.

The stakes being that high, the president and the senate have every reason to get into each other’s hair; for the details of the current such dust-up I’ll refer you to the above-mentioned, highly amusing article on judicial horsetrading.

Amusing it may be. But no matter who wins, the justice loses. For does it really matter who will triumphantly trample justice into dirt – republican, or democrat judges?

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State judges to the police: don’t lie too much. Federal judges to federal judges: lie all you want

Talk of inconsistency. This interview, broadcast on New York’s WNYC radio station, tells us that state judges clamped down on police’s use of too glaring lies they now use to extract confessions from suspects.

Apparently, state judges see lies in negative light.

Not so, say federal judges. When used by the federal judges, they tell us, lies are good, and are to the public’s benefit.

Per federal judges, it is entirely appropriate for a federal judge to lie about parties’ argument, and to pretend in the ruling that the party argued something entirely different than what it actually argued. The federal judge does the public an even greater service when the he or she pretends that the party argued the exact opposite of what it actually argued.

State judges are wrong, and obviously know precious little about the proper judicial procedure; for, per the federal judges, the entire “due process of the law” rests on one glorious thing, indispensable for the public good: a Lie.

Lies are Truth. This is our federal judiciary’s worthy addition to great principles of governance already discovered and enunciated by Mr. Orwell: that War is Peace, that Freedom is Slavery, and that Ignorance is Strength.

Bravo, federal judges! What a splendid use of double-speak! What a marvelous Orwellian achievement! Bravo!!!!

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The Olympic Judicial procedure vs. the non-Olympic one

We are in the midst of Sochi Olympics, enjoying the jaw-dropping spectacle of human achievement, courage, perseverance and grace.

In my favorite sport, figure skating, there is something else to witness: a lesson in judicial procedure.

All seemed well with judging figure skaters’ performance, until, twelve years ago, a strange and unthinkable thing  had happened: the judge was found to be, shall we say, “corrupt and malicious,” choosing to judge “for the Russian pair regardless of how the others performed.”

What happened next was fascinating. The press got indignant; and, lo and behold! The whole system of judging was changed, so that judges had to decide in accordance with actual facts, rather than their whim; they were forced not to see what did not happen on ice, and to see what did happen; in brief, they were forced to judge according to skater’s actual performance, according to the actual merits of the contestants, and not according to judges’ willful substitution of contestants’ input with judges’ own fabrications.

The non-Olympic judging – of a kind that happens routinely in our federal courts – proceeds along a very different path indeed. When federal judges act “maliciously and corruptly,” when they judge not the parties’ argument, but judges’ fantasies of what it ought to have been, no one cares; judges declared that they have the right to do so – for the greater public good.

Olympic skaters would surely be surprised that judicial cheating is good; and it is good to know that at least once in human history the outrage at judicial fraud worked, and that once in four years, somewhere in the world there is honest judging.

Olympics inspire us to achieve what seems impossible. The ultimate inspiration and lesson of the Olympics is this: justice has the power to prevail even over the judges.

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A promising sign

What’s going on? It looks as if federal judges, for all their seeming indifference to what is being said about them, do care after all to not be treated with derision, disdain and scorn by the public.

At least this is how I interpret this NPR story about an unnamed Chicago FISA judge who, in the aftermath of Mr. Snowden’s disclosures, which among other things gave a huge black eye to federal judges, decided to no longer be the government’s rubber stamp, but to listen to the other side too, and to that end ordering the government to share information with defendant’s lawyers.

What could have caused the judge to do this “for the first time in the 36 year history of the Foreign Intelligence Surveillance Act?” I think it was the light of public scrutiny – that good disinfectant of public corruption – that did the trick. The respect for judges dropped considerably after Mr. Snowden’s revelations, and apparently judges have enough respect for respectability to want to regain it.

Which is what gives me hope that the goals of this Coalition Against Judicial Fraud will ultimately be fulfilled. It is only when operating within their narrow, legal space, and dealing with other judges and lawyers that judges’ talk of making contribution to the greater good of society by being “corrupt and malicious” and deciding cases based not on parties’ actual argument, but on judges’ willful substitutions is taken seriously; once the wider public knows, it won’t be amused, but will treat such arbitrary behavior, and such crazy rationale for it, with derision and scorn.

And it is good to know that federal judges, though puffed up with self-importance as they are, are yet not invulnerable to loss of public’s faith.

Not all is lost. Judges’ bizarre right to be “corrupt and malicious,” and to swindle us out of our argument, and thus out of our constitutional rights, will yet be taken away from them.

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Pedophile Priests and Corrupt Judges: Why Do We Look the Other Way?

Well, you are right – as shown by the recent news, we no longer look the other way insofar as the pedophile priests are concerned. Yet, until quite recently we used to – when the scandal initially broke out in 2002 after decades of being kept under wraps, there was shock, and embarrassment, and, for that matter, denial.

On the other hand, judicial corruption, fully acknowledged by the federal judges themselves to the point of being elevated by them into their inalienable right, still causes no stir, sharing its present status with the pre-2002 priestly pedophilia.

One wonders what it is that made it so difficult to out the pedophile priests, and why is it so near-impossible to make anyone indignant at judicial corruption.

I guess this is because both priests and judges serve an identical and hugely important social function of allaying our moral scruples, of sanctifying our social mores and of serving as sources of our collective self-satisfaction with the uprightness of our society. They are guarantors of spiritual decency of our collective existence, they are fountainheads of the warm and fuzzy feeling of the goodness, rightness – in sum, of godliness – of our entire social enterprise.

So if this warm fuzziness is based on a lie, where do we go? How to move on when nothing is holy? What remains when the ideals are shuttered?

These are momentous questions which we would rather not face.

And so, when confronted with stark reality that our social comfort is founded on a patient lie, we’d rather not face that reality, but hold on tight to the fiction that our priesthood – be they priests or judges (for judges are also priests, priests of our civic co-fraternity, sanctifying as legitimate our motives and actions) – are honest and honorable people.

Rather than endure the ultimate pain of collapse of ideals, we convince ourselves that facts aren’t facts, and that ultimately, all is good. We’d rather not know, seeking bliss in ignorance.

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Governor Christie should follow judiciary’s lead, declare his right to act “corruptly and maliciously”

Federal judges do it – why can’t state governors?

Here is a very simple way for Governor Christie of New Jersey to have the whole BridgeGate business go away: make it legal, as federal judges did way back when.

A federal judge swindles a litigant of the winning argument, and when sued, says in his defense “for the greater public good, I have a right to act maliciously and corruptly (Pierson v. Ray);” and a fellow-judge promptly dismisses the case.

Why would a difference in the branch of the government, executive versus judicial, make a difference? Judges decided that their right to act “corruptly and maliciously” contributes to the public good; from which we can derive such general principles as “evil is good,” and “vice is virtue,” which must than apply to the executive branch too.

Since the politically-motivated lane closures caused huge delays and were therefore “bad,” they were in fact, when seen through the logic first invented by the federal judiciary, “good.”

And they being “good,” what’s wrong with them?

And if nothing is wrong with them, why all the fuss?

Hence, Governor Christie would be well advised to save himself the trouble of proving his innocence, and extend federal judiciary’s right to stamp with a word “good” the thing which is manifestly “bad” to the executive, declaring its right to act – in the public interest, of course! – “maliciously and corruptly.”

What an obvious and easy solution! What an incredible contribution to public well-being would this be! How strange that Governor Christie hasn’t discovered it yet!

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Measuring Iranian Promises by American Ones

Walk into any federal courthouse – and it is likely that you will see a mural or a statue of Lady Justice, weighing on her scale the argument presented by the plaintiff against that of the defendant, and impartially awarding victory to the stronger one.

This promise of honest judging is reinforced by the judicial procedure itself, with its exchange of argument and counterargument to make us believe that adjudication of a dispute is an honest and rational procedure.

Not really. Judges routinely invent the argument of their own on behalf of the parties, turning themselves into parties to the case, thus making their rulings non-judicial – for it is the most basic, axiomatic rule that a party to the case cannot be adjudicating a case it is a party to.

And when a litigant, feeling that judge’s active participation in forming the argument of the opposing party (or litigant’s own, weakening it or completely inverting it in the process) betrays the promise of impartial judging offered by Lady Justice, and sues the judge for fraud, he is told (to quote the 1967 Supreme Court case of Pierson v. Ray) that judges are immune from prosecution “even when the judge is accused of acting maliciously and corruptly.”

And you will never-ever guess why. The reason judges gave themselves legal right to act “maliciously and corruptly” (for immunity from prosecution for doing something is precisely what constitutes a legal “right” to do it) is, you’ll be told, “not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public.”

Now think about it for a second. “For the benefit of the public” government can lie and cheat. This is the whole art of statecraft in a nutshell, all Machiavelli’s treatises condensed into one short sentence.

And if Americans – our upright and moral and democratic nation – take this for granted, why won’t the Iranians? We have been told, and told again that their government accepted a nuclear deal with the West; yet what if their government (which, after all, invested tens of billions of dollars into nuclear enrichment infrastructure) thinks that it is “for the benefit of the public” to have the atom bomb? And since, “for the benefit of the public,” government can lie to, and cheat even its own citizens (as done by the third of the US government that is its judiciary), why not lie to, and cheat the Great Satan, and all the smaller Satans too (since they have no legitimacy anyway, for they do not follow the True Faith), by giving the West empty promises of honest nuclear dealing?

Statecraft is not one thing in America and another in Iran; its application is universal. And if empty promises offered by Lady Justice teach us anything, it is that ends justify the means and that for the higher purpose – “for the benefit of the public” – promises, no matter how lofty – are null and void, are mere fools’ hopes.

Not a cozy thought perhaps, but a necessary one when analyzing Washington’s nuclear dealings with Tehran – or our own judiciary’s dealings with our own fellow-citizens.

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A Candid Comment on Judges and Justice by a well-informed anonymous source

The source is well-informed because of what he does, is anonymous because I haven’t asked his name, and his brief comment is extremely revealing.

He was a guest at a party given in honor of one of America’s most prominent living novelists, and I happened to be close by as he had a friendly chat with that celebrity. While I did not try to listen in, his clear, deep, musical baritone voice struck me. I could not help intruding and asked “do you sing in the opera?” His reply was “no; but perhaps I should.”

A few minutes later, as I moved around, I saw him in the crowd again, a glass of wine in his hand. My curiosity piqued, I followed up with “and what do you do when you don’t sing in the opera?” “I am a lawyer,” he said.

This was the answer I least expected; yet here was a person to whom I could obviously relate. “It is odd that I bumped into you” I said “for I am trying to put together a Coalition Against Judicial Fraud.”

To my surprise, he expressed no surprise at all. “Courts are not made to deliver justice” he said matter-of-factly. “This is simply not how they are set up. They have their uses, but justice is just not one of them.” With that, he moved on to greet some acquaintance of his; and in fact, no further elaboration was needed.

For here is, in essence, what he said: while there is a Department of Justice; and Lady Justice at the entrance of about every courthouse, and we are a country “with liberty and justice for all,” all those uses of the notion of “justice” are mere tools of, so to speak, crowd control, of keeping public order by maintaining public faith in institutions of power; and the ubiquitous use of the word “justice” in our public life simply masks the absence of the justice itself in it.

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A question for NY Times’ Nicholas Kristof, and for MSM in general

Mr. Kristof, a New York Times columnist, just posted a piece titled “3 Enemas later, Still No Drugs” built around a story of a Mr. Eckert who was intrusively searched by the police who suspected he hid drugs in his rectum.

I tried to post a comment, which was apparently not approved, yet raises a very good question for Mr. Kristof in particular, and for our media in general. Clearly, something is very rotten in the state of the media, if it refuses to post this comment:

Given that “the city and county settled the lawsuit by paying Eckert $1.6 million,” the headline should really have been “3 Enemas Later, a $1.6 Million Settlement.” As such, it is hardly a “story,” since, in the end, justice triumphed.

How about stories, which must be routine, where justice system not just fails, but deliberately denies justice? We don’t see those stories at all — judiciary elevated itself to some untouchably high level where it is simply not subject to journalistic investigation and criticism.

Yet, consider those facts: federal judges gave themselves the right to act “corruptly and maliciously” (Pearson v. Ray) and to substitute parties’ argument with their own fantasies, or with its exact opposite (Tsitrin v. Lettow, Tsitrin v. Vitaliano), thus — absurdly — becoming parties to the very case they are adjudicating.

So justice is a often a mere Kafkaesque farce, and always a judge’s whim; our constitutional rights are not really enforceable. This is a systemic problem, yet no one in the mainstream press wants to touch it (on-line, there is a site of the Coalition Against Judicial Fraud, cajfr.org).

Why are members of MSM willing to look the other way and not see a systemic social problem — that the judge is a “king” (in a democracy!) and justice is his or her whim, and needs not at all reflect what’s written in the constitution and in statutes, and that “public servants” that are federal judges are “corrupt and malicious?”

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