14 Jul 2014 at 2:02 PM

Antonin Scalia, Blog Wars, Blogging, Federal Judges, Jed Rakoff, Legal Ethics, Richard Posner, SCOTUS, Shira Scheindlin, Supreme Court, Thomas Goldstein

Are Federal Judges Out Of Control?

By Joe Patrice

Nine days ago, Judge Richard Kopf wrote an article about the Supreme Court’s decision in Hobby Lobby that suggested, “[a]s the kids say, it is time for the Court to stfu.” It was a good post, but something that seemed of such little controversy that we relegated it to an in-blurb mention within Non-Sequiturs.
And then all manner of shock and hand-wringing commenced.
It’s not the first time a federal judge received criticism for speaking out. Are jurists like Judge Kopf out of control?

I’m not going to wade much into defending his precise statement on Hobby Lobby. The attacks on it are so full of sanctimony that they deserve short shrift. But what is it with the disrespecting of “lower” federal judges, reprimanding them like disobedient children, simply because they have opinions?
Judge Kopf’s statement has been plastered all over the place, but few place it in its appropriate context:

Next term is the time for the Supreme Court to go quiescent — this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.

That’s pretty mainstream analysis punctuated by a fun bit of Internet lingo. What it isn’t is a signal that Judge Kopf is about to go rogue and disrespect established precedent. He would — I presume — rule for the plaintiff if a case indistinguishable from Hobby Lobby entered his courtroom. It would be a ruling replete with dicta about the problems with that decision, but it would uphold Hobby Lobby nonetheless.
Judges are capable of walking and chewing gum simultaneously after all.
It’s actually embarrassing for us as a culture that Judge Kopf is getting more flack for offering concise analysis of the legal landscape — which is kind of his job — than he got for the “ignorant sluts” fashion advice column, which fairly deserved critique.
Does his “stfu” comment show profound and unacceptable disrespect for the Supreme Court? Who cares? Judges aren’t asked to swear their allegiance to the members of the Supreme Court like they’re superior officers. Judges must respect precedent, they don’t have to agree with it. On the flip side, Justice Scalia can go around fanning the flames for violent militia members by suggesting that people launch an armed revolution against the United States Constitution he’s sworn to uphold. How is that not a bigger ethical breach than intimating that the Supreme Court made a poor policy decision that harms the democratic process? Oh, that’s right, because the Supreme Court is not subject to the same ethical rules as the rest of the judiciary. What’s up with that? Is everyone so fixated on the primacy of THE SUPREME COURT that we consistently ignore their breaches of common sense ethical obligations and blow out of proportion the fact that a trial court judge has access to Urban Dictionary?
Reading between the lines of the criticisms, Judge Kopf’s crime was daring to — in a conversational setting — question the Supreme Court’s infallibility. Justice Scalia isn’t the Pope as much as he might want to be. Implicit in that is the idea that judges beyond The Nine lack the right to hold legal opinions. That seems to run contrary to how they got their jobs in the first place (excluding the pure patronage appointments).
If we really believe federal judges are among the finest legal minds in the country (let’s operate under that assumption for the moment), then why cut them off at the knees whenever they express an opinion on the development of the law? Judge Jed Rakoff got reversed for having the gall to suggest that “Chevron” means less than “letting revolving door sycophants set favorable settlements for the companies they want to work for” and drew some criticism for penning a smart piece about how the government has dropped the ball on financial crimes. Judge Shira Scheindlin got removed from stop-and-frisk cases for suggesting that she treated both parties equally rather than leaning toward the government. So obviously the law couldn’t benefit from these voices. In the words of Judge Kopf, district court judges “are the TTT of the federal judiciary.”
Even the next tier up is getting flak for being too big for their breeches. Motorola, represented by Tom Goldstein of Goldstein & Russell (and SCOTUSblog fame), has filed a motion objecting to a decision by a panel that included Judge Posner. Based on the Motorola brief — which is admittedly a one-sided account — it does sound like Judge Posner may be going a tad afield by converting a motion ruling into a decision on the merits. At least he’s consistent — he’s never really felt that he’s an inferior court. But the motion also criticizes Judge Posner for not taking the word of the Solicitor General’s office at face value. The Supreme Court gets to make snide comments about the government and the quality of its representation all the time, and it’s not somehow a travesty when a lower court — excuse me, Judge Posner, an “intermediate appellate court” — does the same thing.
It’s more than just the civic importance of understanding that judges have thoughts and opinions, it’s about an unwarranted excision of the best and brightest from the evolution of the law. When the Supreme Court gave the judiciary the power of judicial review in a fit of judicial activism (yeah, that’s right textualists and originalists, that’s what Marbury was — so to be faithful to your philosophies you should really never rule on these cases), it didn’t vest that power solely within itself.
Last week there were rumors that Judge Kopf may give up blogging over this incident. He’s already done that once and mercifully reversed himself.
We’re hoping he doesn’t ever stfu.
Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases
Motorola to 7th Circuit: Make Judge Posner follow the rules [Reuters]
Pandora’s Supreme Court [Huffington Post]
Err on the Side of Allowing Speech [New York Times]
Judge Might Give Up Blogging After Telling Supreme Court To ‘STFU’ [Business Insider]
Earlier: Justice Scalia Literally Encourages People To Commit Treason
Judge Rakoff Rips The Government For Dropping The Ball On Financial Crimes
Ouch! So What Does That Make Magistrate Judges?
Federal Judge Suggests That Women Lawyers Not Dress Like ‘Ignorant Sluts’

26 Feb 2014 at 5:59 PM

Asians, Biglaw, Blog Wars, Blogging, California, Politics, Reader Polls, Weirdness, Women's Issues

A Biglaw Firm’s ‘Disgusting’ And ‘Despicable’ Lawsuit?

By David Lat

A lawsuit filed earlier this month has raised the ire of several leading lawyers and legal bloggers. Noted First Amendment attorney Marc Randazza — a panelist at our Attorney@Blog conference, by the way — describes the case as “truly disgusting.” Ken White of Popehat, another prominent commentator on the legal profession, calls the suit “despicable” and “thoroughly contemptible,” writing that he “cannot remember a lawsuit that so immediately repulsed and enraged.”
Let’s find out what all the buzz is about. Which law firm filed this controversial complaint, what is the case about, and how bad is it?

Here is what Randazza writes over at The Legal Satyricon:

Every law firm gets confronted (on a pretty regular basis) with the question: “should I put my name on this?“ That soul searching comes into play when you wonder, “is this honorable?” You know when it is, and when it isn’t.
I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play.
I’m talking about when you do something truly disgusting.

Now, Biglaw firms sometimes represent some pretty unsavory characters — corporations that profit from dangerous or defective products, companies that pollute the air and water, greedy white-collar criminals. Is this latest lawsuit any worse? Per Randazza:

Mayer Brown brings you this masterpiece — a lawsuit where they are trying remove a memorial for World War II “comfort women” from a public park. You see, it “offends” some of their clients. The cause itself is a bit slimy, but how they’re going about it qualifies them as “the least honorable law firm in the world.”
For those of you who do not know what the “comfort women” were — they were about 200,000 women (some say as many as 400,000) who were forced into working in whorehouses for Japanese soldiers during World War II.

After describing the atrocities inflicted upon the comfort women, who were basically turned into sex slaves, Randazza scrutinizes the plaintiffs behind this suit:

Two of the plaintiffs are Japanese-Americans who live in Glendale. The third plaintiff is an “organization” called “GAHT-US.”
“Plaintiff GAHT-US Corporation (GAHT-US) is a non-profit public benefit corporation organized under the laws of the State of California. The purpose of GAHT-US is to provide accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role.” (Complaint at Para. 7)
Well, if we look for GAHT-US (The “Global Alliance for Historical Truth”), what do we find? We find that it is a corporation that someone created on February 6, 2014. After 14 days of legal existence, this lawsuit was GAHT-US’s first act — well after slapping up a web page. This “Global Alliance’s” address is 1223 Wilshire Boulevard #613. That’s a UPS Store.

What is the plaintiffs’ issue with the memorial? From the complaint:

As a Glendale resident of Japanese heritage, [plaintiff Michiko Shiota Gingery] believes the Public Monument presents an unfairly one-sided portrayal of the historical and political debate surrounding comfort women….

Over at Popehat, Ken White provides more of the necessary background:

During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn’t involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.
Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.

So one could argue that this lawsuit constitutes an attempt to deny historical horrors that most people (at least here in the United States) would agree actually occurred — or if not to deny those horrors, at least to shift the blame for them.
What are the plaintiffs’ legal grounds for opposing the memorial? Per Popehat:

Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government’s sole right to conduct U.S. foreign policy.

In a nutshell, the plaintiffs argue that because “the historical and political debate surrounding comfort women” is so charged — implicating relations between Japan and its neighbors in Asia, and between Japan and the United States — Glendale cannot put up this memorial without violating the federal government’s “power to exclusively conduct the foreign affairs of the United States.” This argument seems like a bit of a stretch to me, for the reasons outlined by Randazza at The Legal Satyricon and White at Popehat.
(You should definitely read both of their posts, which are vigorously argued and stylishly written. Whether you agree or disagree with Randazza and White, you can at least enjoy their prose.)
So Gingery v. City of Glendale doesn’t strike me as a particularly meritorious lawsuit. But does that make it “disgusting” and “despicable”? Maybe I’m taking too amoral a view — perhaps years of observing and writing about the legal profession have made me jaded — but I’m not sure. It seems not terribly different from any other case in which a Biglaw firm represents some powerful interest opposed to human rights (or arguably opposed to human rights, if you want to be a comfort-women-denier about it).
My reaction to this case is less angry and more puzzled, or at least curious. I’m curious about the plaintiffs, especially the mysterious, newly formed GAHT-US entity. I’m curious about why the plaintiffs care so deeply about disputing the historical record on the comfort women — do they have ties to right-wing Japanese politics? I’m curious about how much the plaintiffs are paying Mayer Brown to handle this matter and who is funding the litigation. And I’m curious about why Mayer Brown decided to take this controversial case — do the plaintiffs have ties to existing corporate clients of the firm? This is not the kind of case that a firm like Mayer would typically handle.
(By the way, we did reach out to Mayer Brown to see if the firm had any comment on this case. They did not get back to us.)
That’s just me. Readers, what do you make of this matter? Sound off in the comments, and take our reader poll.
UPDATE (3/4/2014, 11:45 p.m.): A quick clarification in response to Jack Marshall’s post over at Ethics Alarms. My argument is not “everybody does stuff like this, so therefore it’s okay.” Rather, my argument — reflecting my perspective as a Biglaw admirer, which perhaps I should have made explicit — would be better phrased as follows: “Biglaw firms frequently represent powerful interests allegedly opposed to human rights; there’s nothing wrong with such representations, which involve unpopular parties receiving zealous advocacy on their behalf; and Mayer Brown’s involvement in the Gingery case isn’t materially different from these representations.”

What do you think about Gingery v. City of Glendale?

• Disgusting and contemptible. (41%, 954 Votes)
• Not disgusting, just frivolous. (38%, 889 Votes)
• Shrug; par for the Biglaw course. (19%, 445 Votes)
• Courageous and commendable. (2%, 54 Votes)

Total Voters: 2,342

 Loading ...

Mayer Brown, shame on you. [The Legal Satyricon]
Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove “Comfort Women” Memorial [Popehat]
Earlier: I’m Pretty Sure The Japanese Peace Constitution Doesn’t Allow For Sex Slaves

51 Comments

• 
• Print

Topics

Asians, Biglaw, Blog Wars, Blogging, California, Comfort Women, GAHT-US, Gingery v. City of Glendale, Glendale, Jack Marshall, Japan, Japanese, Ken White, Koichi Mera, Marc Randazza, Mayer Brown, Michiko Gingery, Michiko S. Gingery, Michiko Shiota Gingery, Politics, Reader Polls, Weirdness, Women's Issues