There are phenomenally interesting objects in the universe called “black holes,” astrophysicists tell us. They are tiny, but very powerful. They are former stars that instead of emitting light – like stars normally do – they suck light in; and they suck in any object – be it a comet, a planet, a nearby star, or, to move into realm of science fiction, a too-adventurous spaceship – that comes too close.

And whatever falls into the black hole gets compressed beyond imagination; a million stars would be packed into a pinhead.

What goes on inside a black hole, no one knows – and no one can know, for that matter. Physicists call that condition “singularity” – the breakdown of laws of physics.

Thus, at a safe distance from the black hole, regular laws of nature, laws that allow us to predict events, still operate. Stars emit light according to the laws of nuclear physics. Planets move on their orbits according to the laws of gravity. Substances combine and dissolve according to laws of chemistry. Plants grow and animals live according to the laws of biology. But inside of the black hole, there are no rules, no laws, no predictability – a complete breakdown of rules and laws.

Fascinatingly, the above picture of perfectly predictable order embodied in strict adherence to laws and rules, but circling around an all-powerful center that recognizes no rules and no laws, but acts arbitrarily, is also the picture of the federal judicial process.

For, following the court-prescribed, strict choreography of plaintiff’s and defendant’s argument and counter-argument, all based on constitution and law, all logically and convincingly structured and argued, all submitted within the strictly specified timeframe, all those documents, prepared with extreme care and enormous expense, wind up on judge’s desk for decision.

Welcome to singularity, the breakdown of rules, of laws, of logic. The federal judge does not examine the argument as submitted by the parties, which is their (and everyone else’s outside of the world of “law”) reasonable expectation. Abandon reason: what follows is the arbitrary substitution of all the facts and the law argued by parties with those generated by judge’s fantasy and whim; everything is twisted out of shape; the ruling as it comes out of the singularity zone that is federal judge’s chambers is a spectacle as bizarre as that of a spaceship that had the misfortune to get into the singularity of a black hole; the expense of the parties on forming their argument is as utterly wasted, as that of building the spaceship that the black hole sucked in.

Astrophysicists and litigants, unite! You are talking of the same thing, whether you discuss the physics of black holes, or the mysteries of the federal judicial process!

The members of the legal profession I talk to about judicial fraud invariably resort to the same histrionics. They spread out their arms, they roll up their eyes, they give their faces a somewhat painful expression, they sigh – in short, they pose as appropriate for one about to deliver some particularly painful, yet profoundly deep and necessary morsel of wisdom.

Having primed themselves to look like Jesus Christ about to deliver the sermon on the mount, they proceed with disburdening themselves of the following gem: “judges are humans, and sometimes make a wrong decision.”

The contrite tone of the voice, the implied invitation into deeper mysteries of wisdom that admits to fundamental imperfections of this world is clearly calculated to win us to their argument.

Yet the temptation to look wise, and to accept it must be resisted, for the argument itself is nothing but hogwash.

Here is why.

Let’s start by asking a very basic question: what is an error? Here is a simple mathematical example: compare the values of “zero” and “ten.” It would be an “error” to say that “zero is equal to ten;” it would likewise be an error to say “zero is greater than ten;” it would NOT be an error to say “zero is less than ten.”

This established, let us turn to federal judges deciding a case. Plaintiff, a private individual suing the government, puts before the judge ten’s worth of factual and legal argument. The defendant, US, replies with a zero worth of argument.

How should the federal judge decide so the decision could be considered as “wrong?” He should obviously point out in his or her decision that plaintiff provided a ten’s worth of argument in favor of his position, and the government provided a zero’s worth of argument to prove that it is in the right, and that therefore government wins, and plaintiff loses.

This would clearly be a decision that could be called “wrong” – yet such decisions are virtually non-existent.

Why? Because any reader of that decision would see that the judge who made it is a moron.

Yet federal judges, just like anyone else, do not particularly like it when that particular word is being applied to them. On the contrary, they want to be seen by us as fountainheads of unreachable wisdom and learning, speaking down to the lowly us from the tall Olympus of high-minded rightfulness. They want to impress and to awe us – certainly, not to become laughing stock to which the attribute of a “moron” would relegate them.

So what do they do when government presents zero’s worth of argument, and plaintiff a ten, and yet they want to decide for the government? Do they make a “wrong” decision?

No, they are not that foolish; they know the math pretty well. So what they do do, is they make a fraudulent decision. As my litigation experience in federal courts shows, they either substitute in their decisions government’s argument with “facts” they fabricate out of thin air, and with “law” that government’s lawyers never mentioned, giving the government a “twenty” worth of argument instead of the “zero,” or by making the facts and the law that plaintiff adduced simply vanish into thin air, substituting plaintiff’s “ten” with a judge’s “zero.” And then, the judge simply proceeds to write the decision that says “the government won because twenty is greater than ten” or “the government won because plaintiff provided zero’s worth of argument.”

So although the decision is patiently unjust, it is not “wrong:” twenty is indeed greater than ten, and zero is indeed a negligible number. The problem of course is that both the “government’s” “twenty” and the “plaintiff’s” “zero” are not “government’s” and “plaintiff’s,” but judge’s own.

This renders judge’s decision to be not merely unjust, but non-judicial. It is parties to the case who supply the argument, because the very purpose of the argument is to convince the judge to decide the case in a particular way. Once a judge starts creating argument, he or she of necessity becomes a party to the case. And since it is axiomatic that a judge cannot possibly be party to the case adjudicated before him or her, but has to be impartial, the judge cannot possibly be acting as a judge while supplying the argument for parties. The use of substitutionary procedure aimed at avoiding a “wrong” decision, renders that decision non-judicial.

So here we are. It is often wrong to speak of a federal judge’s decisions as “right” or “wrong.” We should rather talk of “judicial” and “non-judicial” decisions; of decisions that are “legitimate,” and decisions that are “fraudulent.”

I don’t know how exactly they define those, but recently the editors of the New York Times used in their editorial the term “unpalatable judges.”
The term was hyperlinked, and pointed to an article on which I also commented in the past, concluding that “both President Obama and the Senate know that “due process of the law” is a sham.”

Whatever New York Times’ editors mean by “unpalatable judges,” their editorial still carries a very important lesson, namely the mainstream press’ clear acknowledgement that judges are NOT necessarily the honest, honorable, and upstanding people we are brainwashed to acknowledge them to be in an all by a knee-jerk reaction. We should stop ascribing their modus operandi and their decisions to some higher, incomprehensible to us perhaps, yet ultimately righteous wisdom, but subject them to the same careful and critical public scrutiny as other politicians are subjected to, thus putting them under full public control.

They should be fired when they act “maliciously and corruptly,” when they judge not the parties’ argument, but judges’ fraudulent substitution of parties’ argument.

There should be no room in the federal legal system for “unpalatable judges;” yet under the present “case law” created by the federal judges for the federal judges, and which allows federal judges to act arbitrarily, no other kind of federal judges than the “unpalatable” ones exists.

So insofar as the New York Times is a mainstream paper, the notion that federal “due process” is but a legalized swindle should also go mainstream, allowing us to rid ourselves of “unpalatable judges” who currently occupy every federal bench in the land.

The news came that Madoff’s staff was found guilty, and would likely be serving time in jail.

The question is, is it just?

They were all scoundrels, and guilty as sin? So what?

Let’s calm down and look at the bigger picture, and consider their behavior in the framework of the socially acceptable standards.

Who shows us the ethical light, who’s on top, in the public mind at least? Of course, the men of the cloth, the holy people – the pope, and the clergy generally. No matter what your religion is, you’ll defer the place on the top of the ethics heap to your clerics.

And not far below the very top (perhaps just under the medical professionals) we’ll find the judges, those honorable, upright, wise, and honest people.

Below them, are the more common kind of folks; whose ethical duty it is to emulate the already-mentioned ones who are on top of the ethical hierarchy, and to aspire to do what they would do.
So is it right to do what a federal judge would have done? Of course! That’ the high standard to aim at; that’s what’s good, that’s what’s right, that’s what’s proper!

And what did Madoff and his employees do? They told the investors a lie – that they would invest their money, not re-distribute it. It sounds bad on the surface, but is it bad? Does it represent a lower standard of behavior that of a federal judge?

Not at all. Federal judges have the right to act “maliciously and corruptly;” federal judges have the right to substitute the argument for which parties paid their lawyers huge sums of money with utter nonsense of judge’s own fabrication, thus swindling the parties of their argument, of the money spent on building it, of their victory, of their rights, and ultimately of justice.

Since such conduct, being permitted to judges, properly belongs at the very top of the pyramid of ethical behavior, why should the society treat Madoff and his employees as deviants? They only did what the most honest, honorable, upstanding citizens – the federal judges – do. So why would Madoff and his cohorts serve time?
Go figure…

I haven’t heard of the man before, and paid no attention when NPR announced the segment on the passing of “Anti-Gay activist Fred Phelps, a widely reviled figure… Phelps led the Westboro Baptist Church in Topeka, Kansas. Its members are infamous for picketing funerals with signs proclaiming God’s hatred of gay people.”

But a piece of his rhetoric caught my attention. Here is a snip from the transcript:

FRED PHELPS: That’s my job, man, to cause this evil country to know her abominations.

MORRIS: Fred Phelps, speaking here eight years ago in the paneled office of his small Topeka church. In his mind, every catastrophe, attack or misfortune was God’s retribution for America’s failure to castigate gays.

PHELPS: We’re insisting that this country take the cup of the fury of God’s wrath, we’re putting it to their lips, and we’re making them drink it.

Whatever you think of Mr. Phelp’s diagnosis of our country’s problems, the larger question is this: can all those problems be indeed attributed to a single cause?

I think they can be; though I would rather argue that our country’s problem is a systemic, constitutionalized absence of justice. Judges’ right to act “maliciously and corruptly” and to substitute parties’ argument with judges’ fabrications and falsehoods – the rights which turns “due process of the law” into a travesty, combined with America’s apathy and lack of the slightest protest against this obvious and blatant violation of the biblical injunction to “seek justice” is I think at the root of the country’s obvious decline.

Here is how it works. Since justice is unachievable, and our rights and liberties (including the right to free speech) are being denied so the establishment could run the country, abuses are being covered up, free discussion throttled, reasonable ideas (including the rationale for religious violence and terrorism – which is the area of expertise of yours truly) are being suppressed. Hence, the possibly right views are being excluded from the public debate, while the definitely wrong (albeit “multicultural” and therefore “politically correct”) ones are given the right-of-way. Why than be surprised that the country goes to hell in a hand basket?

Much can happen “for want of a nail,” as the proverb has it, and when that “nail” is justice, huge negative consequences follow – such as terrorism, wars, and man-made technoligical disasters.

No matter what you think of Mr. Phelps’ views on gays, the big picture he saw – that “for want of a nail the kingdom was lost” – is essentially right.

So let’s take that lesson to heart, and restore justice to our so-called “justice system” that is presently so obviously devoid of justice – before our kingdom is gone, too…

Here for a change is a story with at least a spec of justice in it – a highly convoluted tale of a Chassidic boy who told his father that he had been molested by a cantor (i.e. a leader in Jewish prayer service); of the boy’s father’s attempt to go to authorities; of his arrest by them for bribing the witness to testify against the cantor; and of the dismissal of the charges against him because those accusing him of bribery were themselves highly unreliable as witnesses.

This seems to be a story of judging done right (though the alleged molester apparently managed to escape charges); and yet, it points to a bizarre procedural dichotomy: while the judge did the right thing by dismissing unreliable evidence as inadmissible, judges themselves routinely engage in fabricating such unreliable (and often, patiently false) evidence out of thin air on behalf of the parties (turning themselves into parties to the case before them), which they use as clinching argument in their decision-making.

Which creates an unsertainty on whether corrupt practices are admissible in the federal court; and it looks like it depends on whose currupt practices we are talking about: if parties’, than answer is likely to be “probably not.” If judge’s own, than the answer is an emphatic, ethusiastic, extatic “yes!”

The moral of the story? Despite some instances of honest judging, judicial process lacks any coherence, any rhyme or reason, depending entirely on judge’s whim, it is bipolar, it is schizophrenic, it is irrational, it is arbitrary, it is unfair, it is undemocratic, it has nothing to do with following the “law,” it is not based on any “court rules,” for all the heavy volumes that contain them both.

In other words, it is not a “process” at all, but a record of utterly random, unpredictable, inscrutable, illogical moves on the part of a person we call “the judge.”

The other day, I attended a book talk by two very brave journalists (and most vivacious ladies), Wendy Ruderman and Barbara Laker discussing their book “Busted: A Tale of Corruption and Betrayal in the City of Brotherly Love”  in which they describe their incredible feats of investigative journalism courageously performed in the heart of the inner-city drug dens, which resulted in the Pulitzer-prize-winning series of articles on Philadelphia police corruption.

I won’t dwell here on their most exciting adventures (for that, I’ll refer you to their book), but I want to focus on the question that I had a chance to ask them: how about the untold stories of corruptions – in particular, of judicial corruption? Why isn’t the press interested in those?

The replies, to my mind, were unconvincing. Wendy Ruderman: “media’s resources are limited, and have to be focused on what’s more important.” Really? The federal judiciary openly gave itself a legal right to act “maliciously and corruptly,” to substitute parties’ legal and factual argument with non-existing “facts” and off-the-wall “law” of judges’ own concoction (or even with the exact, polar opposite of parties’ argument), brazenly throwing “judicial impartiality” to the winds isn’t a “story?” Full third of the federal government being openly corrupt and malicious is not worthy of a newspaper article? What is a “story” than? Barbara Laker’s response (“you’ve got to deliver the goods, to have a definite proof that this actually occurred!”) was likewise off, given my reply of “the goods are there; it’s the interest that’s missing!”

Yet another theory was advanced by one of the fellow-attendees: “it is because the issues are so obscure.” But absence of judicial impartiality is not an obscure issue at all – since impartial judging is supposed to be at the very foundation, the front and the center of our legal system. So that isn’t it, again.

So finally, I had to think of my own theory. Cowardice can be all but ruled out: what those ladies did was brave indeed – for they braved not just the police, but whole neighborhoods of drug users and drug dealers. They could have easily bearded a fraud-practicing federal judge like Lettow or Vitaliano or Jacobs or Katzmann or Livingston if they only wanted.

They clearly didn’t want to, however. Why?

I wonder if it is because the media feels that it itself is the power-that-be, that it itself is one of the mainstays of our establishment, a pillar of the social order, a keeper of governance system, one of the guarantors of the obedience of the governed. While it rocks the boat, it deliberately knows to keep this within bounds – just enough for the populace to be proud of America’s “free press,” yet not so as to actually challenge the grip of the ruling establishment on the levers of power.

The reforming influence of investigative journalism, of the “fourth estate?” Forget it – for all the brave reporting of journalists like Wendy Ruderman and Barbara Laker, and for all the Pulitzer prizes in the world…

The alarm clock rang, I yawned and cussed and got out of bed and turned on the radio – and was suddenly fully awake. Apparently, according to the news segment upon which I hit – “U.S. Judge Sides With Chevron In Amazon Pollution Case,” not all judges are equal: the reason for judge’s decision was that Ecuadorian judge who ruled against Chevron and whose decision this US judge now reversed, was that Ecuadorian judge acted “maliciously and corruptly.”

Huh? Since when is a judge forbidden to do so? American federal judges do enjoy the self-given right to act “maliciously and corruptly,” insisting that it somehow upholds “public good;” they also gave themselves the rights to substitute parties’ factual and legal argument with their own, off-the-wall fantasies; and to substitute parties’ factual and legal argument with its exact, polar opposite.

So why can’t Ecuadorian judges do the same? Apparently, because they took bribes (per detailed analysis of the story on Bloomberg).

But bribes are just a red herring. Just think for a second. Judges shouldn’t take bribes (or heroin, or too much alcohol) so they don’t pervert justice; the prohibition is aimed against making judges “see things” that are not there.

But what is the difference between judges “seeing things” because they want to (which is the modus operandi of the American judges), or “seeing things” because they are paid to (the modus operandi of Ecuadorian ones)? Either way, the justice gets perverted; either way, the litigant is defrauded of victory; either way, judicial fraud triumphs.

Based on my own, vast litigation experience, let me give Steven Donziger, Zoe Littlepage, Richard Friedman, and Deepak Gupta, the lawyers representing the losing side, a good legal advice: appeal on the basis of the cases which establish American judges’ rights to pervert justice: Pearson V. Ray (establishing federal judges’ right to act “maliciously and corruptly”); Tsitrin v. Lettow (establishing federal judge’s right to substitute parties’ factual and legal argument with judge’s own baseless fabrications) and Tsitrin v. Vitaliano (establishing federal judge’s right to substitute parties’ factual and legal argument with its exact, polar opposite) to argue that Ecuadorian judges did nothing out of the ordinary, but simply acted in pursuit of their right to be “corrupt and malicious.” If anything, they merely emulated American judges; and moneys they got don’t change that picture one bit.

It would be most interesting to see how US judges wriggle to deny Ecuadorians the right they themselves so greatly enjoy!

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.

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?