Federal Judiciary

What is judicial fraud?

You are in a boxing ring, watching your opponent's every move. He loses focus for a second and you hit him on the jaw. He falls down, knocked out.

You stand relaxed, waiting for the referee. He comes over, and punches you on your jaw with all his might. You fall, and he lifts the hand of your opponent, declaring him a victor.

Sounds crazy? Well, welcome to the world of federal courts.

The Fifth amendment guarantees us "due process of the law," and the one currently employed by federal judges in cases that have no jury, and are not in the spotlight of the press, is three-step, to judge from my extensive litigation experience.

Firstly, parties submit their factual and legal argument and counter-argument according to court's rules, spending thousands upon thousands of dollars on court and lawyers' fees; secondly, the judge discards that dearly-bought argument and substitutes it with his own imaginings of what it was ought to have been, and which is totally different from (or even exactly opposite to) the argument advanced by parties themselves; and thirdly, decides according to the argument he himself just fabricated. When the litigant reads the opinion, he can only exclaim in utter bewilderment and disbelief, "where did all this come from?"

There was time when the courts and the press could deal with such outrage, like for instance in the case of Judge Cardozo, the father of Benjamin Cardozo, one of the most esteemed former justices of the US Supreme Court. Cardozo senior was perhaps the most corrupt judge in US history who used the bench to advance interests of the notorious Tammany boss William M. Tweed in expectation that Tweed would be elected president and would appoint Cardozo to the US Supreme Court. He wound up having to resign in disgrace when the press uncovered his corruption while investigating Boss Tweed.

But things changed for the worse in the century-and-a-half since Judge Cardozo’s downfall. For one, judges gave themselves the legal right to act "maliciously and corruptly" in 1967 Supreme Court case Pierson v. Ray (which makes judges immune from prosecution for such activity – but immunity from prosecution for doing something is precisely what constitutes a legal "right" to do it).

And secondly, our press changed from muckrakers of a century ago to staunch upholders of the status quo. Of the three prominent American journalists I had a chance to talk to recently – Mark Leibovich of the New York Times; Bob Woodward of the Washington Post; and David Remnick, the editor of the New Yorker, only Remnick – a simple, innocent soul – claimed that there was no problem of judicial fraud in America; but even the journalists who were obviously more experienced in the ways of the world and agreed that the problem existed, still could not think of a newspaper or magazine that would publish an investigation of judicial fraud. While journalists have little hesitation shedding light on the ethically doubtful inner workings of the legislative and executive branches of the government, similar scrutiny of the judicial branch is, somehow, a journalistic no-no.

Nor, to my amazement, do organizations like American Civil Liberties Union, or Center for Constitutional Rights, express the slightest interest in (or, for that matter, indignation at) judicial fraud.

And fraud it sure is. Under the current, substitutionary, "corrupt and malicious" "due process of the law," a judge makes himself a full-fledged party to the case he is adjudicating (a bizarre arrangement, since it is axiomatic that a party to the case cannot possibly adjudicate the case it is a party to), and uses what could be called the "Lettow-Vitaliano principle" that a legal document says not what it says, but what the judge wants it to say; or to put it differently, that in the world of Law words have no meaning.

(I named it after Judges Charles Lettow of the US Court of Federal Claims (who adjudicated my case against the government based on government’s argument which the government not only never made, but later expressly disproved), and Eric Vitaliano of the Eastern District Court of New York (who adjudicated my case based on my argument which was the exact opposite of my argument, ruling that the crucial, keystone legal quote that constituted my lawyer’s legal proof of the validity of his argument was simply missing, as was his enumeration of facts based on which we filed our case in the first place)).

Which, needless to say, makes decision-making utterly arbitrary, turning "due process of the law" into a judge’s whim, and the hugely expensive exchange of argument into a massive waste of money, rendering court rules that mandate it utterly meaningless, legal proceedings into a Kafkaesque farce, and transforming federal judiciary into (as Thomas Jefferson put it) "tyrannical branch" that has nothing whatsoever to do with enforcing the law, if by the "law" we are to understand human actions allowed or forbidden by legislature.

How do we fix this? We need to make judges "impartial" in the literal sense of the word – which after all means "not being a party," and have them strictly follow Chief Justice Roberts' dictum that judge should "call balls and strikes, not pitch or bat" (a dictum which clearly underpins both the court rules, and the images of Lady Justice which symbolically explain the proper "due process of the law"), by forbidding judges the use of the middle, substitutionary step of the currently-used process. This way, it is parties’ actual legal and factual argument, rather than judges’ willful substitution of it, that will be evaluated.

This procedural change would force judges to actually dispense justice, by awarding victory to the stronger argument. (Awarding victory to a weaker one is an obvious injustice, as is substituting parties' own argument.)

For that – honest and impartial kind of judging – we do not need the well-connected political appointees to serve as judges; a twenty-some-year-old just out of college with a degree in logic would do an infinitely better job than a most seasoned insider, the job consisting of putting parties’ argument and counter-argument into the opposite side of a spreadsheet, checking each for relevance and factual accuracy, and evaluating the relative strength of the arguments that remain.

This of course would turn judging into a regular, white-collar office job, not the august and awesome – but ultimately unjust – action that it is now. Judges would be hired and fired just like anyone else, depending on their performance. The appellate process will be greatly simplified too, since lapses in logic are not that hard to prove.

This will also have a salutary effect on another huge problem of the American justice system – the absence of capacity of the Supreme Court to hear cases. While we think we have a three-tier legal system, we don’t, since the Supreme Court, for all practical purposes, does not exist (or, rather, only 2% of the Supreme Court exists, since it has the capacity to hear only some 200 cases a year – while some 10,000 are getting submitted annually). To actually have a 3-tier legal system, rather the present 2.02-tier one, we need a very different Supreme Court. But that I covered in detail elsewhere.

Courts are part of our government – and it is up to us to have them work for us, rather than wilfully, and therefore tyrannically, impose upon us.

But to fix "due process of the law" we need to be able to discuss it, and offer improvements which can be suggested to the elected representatives for implementation.

The press doesn’t do it, so let us do it together. Tell your story, give your opinion, provide your suggestions.

The Bible, in Deuteronomy 16:20-22, exhorts us: "Justice, justice only shall you pursue."

"Seek justice" is Isaiah’s plea.
Shall we?