American Judge

Will he or won’t he? As partisan commentators speculate about the possibility of the president declaring an emergency to fund his wall, little has been said about exactly what that would mean. Assuming the president follows through to create the financing he wants for the wall construction how would he go about building the wall? To begin with, the land needed along the border is primarily owned by private citizens. The government would have to acquire that land. While some people might quickly agree to sell, others most certainly would not. This could lead to the process of eminent domain. The government would have to battle in court to take the land from the private citizens that own the land. This process would not be expected to be completed by the time President Trump completes his first term. It is possible that all the cases could linger well into his second term if he is re-elected. Democrats and Republicans fight over the wall. The wall has become a symbol and there is little or no discussion beyond the fight for funding. Regardless of your personal belief on that topic, the conversation needs to move forward. If the money is allocated, the land must be allocated. How much will that cost? How long will that take? Are the civilian landowners responsible for all the legal costs? Will partisan groups swoop in with lawyers to fight for these civilians? Does this just become a legal war fought through proxies? Does it seem that the press lacks a basic understanding of the legal issues involved which has left the coverage of this issue on an elementary school level? Let’s start the conversation about what happens if the financing was approved. Let’s try to determine the cost of acquiring the land and the time reasonably expected to litigate these cases. Maybe that can steer the process from the belligerent children to the thoughtful adults, assuming there are still some grown-ups in Washington.

On Friday, Judge Reed O’Connor of the Federal District Court in Fort Worth found the Affordable Care Act to be unconstitutional. This puts an estimated 133 million Americans with pre-existing conditions at risk of losing their insurance coverage. Judge Reed was appointed by George W. Bush. It will now be up to the Fifth Circuit Court of Appeals to affirm or reverse the decision. The Fifth Circuit is generally regarded as one of the most conservative circuits in the country. After the Fifth Circuit rules, the case will be ripe for the U.S. Supreme Court. The Court has the option of refusing to hear the case. Experts envision this case to focus the issue of health care as a top priority for voters in the 2020 election. Bloomberg reports that “health care ranked as the most important issue to Americans by nearly a two-to-one margin, and those who cited it preferred Democrats to Republicans by a striking 52-point margin.” While judges are supposed rule based on the law without regard to political considerations, this ruling may damage the ability for Republicans to win elections in 2020. The prospect of over a hundred million voters losing or being in fear of losing health care coverage would be devastating to the Republicans if voters blame Republicans for the loss of health care. (It should be noted that the plaintiffs in this case were a group of Republican Attorneys General.) The Trump administration refused to defend the Affordable Care Act. Some Republican leaders are deeply concerned that they will be facing a voter backlash. What does this mean to judges? Federal judges are given lifetime appointments so they can make difficult decisions without fear of political reprisals. There is no way to tell what will happen when the case goes up. Many conservative legal scholars have weighed in with skepticism that the ruling will survive appellate scrutiny; they speculate that if it gets reversed in the Fifth Circuit, the Supreme Court will decline to hear it. In the meantime, the decision is stayed until the Appellate Court rules. This may be a lot to do over nothing or it may become one of the most significant legal decisions of the Trump presidency. Regardless of the outcome years from now, this case could be the catalyst for bipartisan solutions to problems that lack party bias. Certainly, the needs of 133 million Americans deserves better.

This week a number of court filings have raised the temperature of the Mueller investigation. While President Trump tweeted that the filings have cleared him, most knowledgeable legal observers came to the opposite conclusion. As unindicted Individual 1, Trump seems immersed in improper conduct. While he tries to deflect the scrutiny, the evidence continues to mount. Regardless of the constant haranguing by the president and his supporters, the only insight into the investigation by the special prosecutor–or from related cases by different prosecutors’ offices–comes from documents filed in court. Many of the documents available for public review are heavily redacted but they are informative. In January, the Democrats will control the House. There continue to be cries for impeachment. An impeachment begins in the House but is voted on by the Senate, which is currently controlled by Republicans. A number of Republicans would have to abandon their party to vote for impeachment or the impeachment would fail. At this point, people need to stop. They need to stop calling for impeachment. They need to allow the investigation to run its course. After the investigation is concluded, when the evidence is known, that would be the time to evaluate what should occur. Impeachment should not be partisan nor should it be instigated unless there is overwhelming evidence of a serious crime or series of crimes. The crime or crimes must significant. The evidence must be more than the testimony of cooperating individuals seeking to reduce their own criminal liability. There must be irrefutable evidence. Hard evidence like emails, captured conversations, banking receipts or other tamper proof evidence must be available to test the credibility of any witness testimony. When Nixon was impeached it was Republicans who compelled him to step down after seeing overwhelming evidence of guilt. Today it should not be a Democratic impeachment. It should not be a partisan process. If the evidence is produced to prove that impeachment is appropriate, Republicans need to lead the charge. If such evidence is never produced, there should be no impeachment. Everyone offering their opinions now, speculating about what the Special Prosecutor has, needs to stop. The investigation must conclude on its own schedule, unabated and without interference. Now more than ever, we need to embrace the concepts of due process and rule of law.

President Trump attacked a federal district court judge for an unfavorable decision. After granting a temporary restraining order (TRO), the judge was attacked as an “Obama judge” and mistakenly described as a 9th Circuit Judge. While the president apparently doesn’t understand the difference between a district court judge and an appellate justice, the bigger misunderstanding seems to be exactly what happened. A TRO is granted to prevent some harm or injury to the moving party or to maintain the status quo until the parties appear in court. Under federal rules, a TRO usually expires after 14 days unless it is renewed. The granting of a TRO doesn’t mean the moving party will ultimately prevail on the merits. In this case, it did temporarily prevent the president from a course of conduct by executive fiat. Once again, an angry President Trump attacked the judiciary because of an adverse opinion. This time however, Chief Justice John Roberts spoke out. Roberts said, “we do not have Obama judges or trump judges, Bush judges or Clinton judges.” He went on to state, “what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” Roberts has largely kept a low profile since assuming the mantle of chief justice. Justices rarely step out of their role and offer personal opinions in response to criticism. His rebuke of the president was measured and proportional but a larger message may have been sent. Roberts has been a mostly consistent conservative vote. His vote to uphold the Affordable Care Act stunned some conservatives but it demonstrated his commitment to stare decisis. Perhaps the president should be concerned that his efforts to delegitimize the courts might backfire on him. At some point, the president might be running to the court for protection. Many law and order types become big fans of due process when they become targets of the justice system. Did Roberts tip his hand? As constituted, the court leans slightly to the right. In the past, the Supreme Court has ruled against presidents a number of times. As envisioned by the framers of our Constitution, the Court is a check to the legislative and executive branches. Maybe the president is counting on his appointees to protect him. The rest of us can only hope that there truly are no “Trump judges” and like Chief Justice Roberts has shown in the past, the rule of law will always prevail.

On Friday, Federal Judge Timothy Kelly of the District Court for the D.C. Circuit granted a temporary restraining order (TRO) restoring CNN reporter Jim Acosta’s White House press pass. Judge Kelly was both a Trump appointee and a member of the Federalist Society. TRO’s are governed by Rule 65 (b) under the Federal Rules of Civil Procedure and under state law when brought in state court. If the court finds that a party will suffer irreparable harm unless the court intervenes, the court will enter an order to protect the moving party. A TRO is for a limited period of time until the issue in controversy can be resolved. TRO’s may be extended. In short, it is preliminary in nature and subject to review. People who claim or view the granting of a TRO as a victory may not fully understand what a TRO is and the limitations of such an order. Jim Acosta will be back in the press room at the White House. The TRO doesn’t address much beyond that. Does the president have to recognize Acosta? Does the president have to answer questions from Acosta? Does a reporter have to follow rules of decorum? The parties will probably reach some kind of accommodation, making extended litigation unnecessary. Lost in the conversations about the TRO is the status of the judge. Some pundits seem to suggest that Judge Kelly’s ruling is disloyal to the president that appointed him. Some suggest that he has betrayed his Federalist Society roots. When Chief Justice John Roberts cast the deciding vote for the Affordable Care Act, some conservatives were irate. Both Chief Justice Roberts and Judge Kelly took an oath to support and protect the Constitution. Why are people surprised when they follow the law and uphold the Constitution? In the United States Supreme Court, some decisions are by a 9-0 vote, some by a 5-4 and others are in between. Regardless of the vote totals, the decision of the Court is always based on the law. People forget that conservative icon Antonin Scalia and liberal legend Ruth Bader Ginsburg were the best of friends in spite of being on opposite ends of multiple court decisions. Maybe the talking heads fomenting anger and divisiveness can look to the Court, where disputes are resolved rather than created.

Today we honor the men and women who protected our nation by serving in the military. Many never returned from battle, others returned with injuries that may never heal. Our country was founded by war. We survived a war to rip our nation in half and rallied to defeat fascism in WWII. The idea of a nation founded to escape tyranny has led to a diverse group of citizens bound together by the promise of freedom and the protection of law. It is our legal system that enables this experiment of democracy to sustain. The demise of other great nations was usually proceeded by the breakdown in the legal system. Often, despots suspended the rule of law to enable them to seize power. The founding fathers created three co-equal branches of government to protect the citizenry from tyranny. Our Constitution enumerates certain rights to citizens. Their overriding goal was to insure that no one person would be able to seize control like the monarch they broke from. Today, beware of the false profits that point to the judiciary and the constraints of law as an enemy of the people. The men and women who gave of themselves so that this nation shall endure as a nation of laws are owed more than empty rhetoric. They deserve a nation based on the application of law, due process and equal protection of the law for all citizens. Our soldiers fought to preserve these bedrock principles. We need to remember their sacrifices and honor them everyday by doing our part to protect our Constitution.

Thankfully, the election is behind us. Jeff Sessions is out as Attorney General and his replacement is on the record as believing that he need not fire Mueller to shut down his on-going investigation, he can cripple it by eliminating the funding for it. Would that set up the possibility of the investigation continuing until the new congress is sworn in and then they can fund it? Are there sealed indictments to be released? Did Mueller hold sealed indictments until after the election so as not to seem partisan? Questions abound. What is certain is that the Democrats now control the house. This means that they have some ability to hold the president accountable. The trick is that they must exercise restraint in how they proceed. Mueller has acted the way prosecutors should conduct investigations. There have been no leaks, no press conferences and no interviews. In time, the results will come forward. The wild speculation by both sides are without factual basis. It would be nice if both sides would stop the hysteria and wait for the results.

A first year law student told me that she didn’t want to attend her criminal law class today because they would be discussing rape and sexual assault. Last year, a Chicago law school faced an incident where students were upset because a professor used the N word while teaching about “fighting words.” A large number of the students marched out of class and confronted the dean. Now, legal educators are faced with issues that basically didn’t exist 30 years ago. Today, law professors must be mindful of what might be considered triggers for students. The practice of law requires lawyers to deal with some of life’s most intimate, offensive and volatile situations. How do we train new lawyers to deal with these circumstances without exposing law students to the realities of life’s unsavory problems requiring legal intervention? Lawyers face some of people’s worst conduct in criminal, juvenile and domestic relations cases. Probate cases can expose greed and the destruction of families over the division of assets. New lawyers will face old problems. Along with sensitivity and compassion, new lawyers will have to be tough. The challenge facing legal educators is how to prepare new lawyers to face today’s problems while being mindful of an evolving academic environment. To learn about “fighting words,” students have to learn what they are and the effect they have on the person that is the target of those words. They need to learn the legal ramifications of those words to both the person uttering them and the person to whom those words are directed. Maybe, a newly admitted lawyer shouldn’t be surprised by a judge denying their request for a continuance or more substantive motions. Maybe, they should learn in law school that they will not always get their way and that sometimes, they need to face adverse decisions, unpleasant facts and bad people. Life is tough, a lawyer needs to be tougher.

The mid-term election on Tuesday November 6 will provide a glimpse of what politics will look like going forward. Clearly, we are a nation divided. While the focus will be on key races around the country, the dynamics of the judicial retention race in Cook County Illinois will bear monitoring. The Cook County Democratic Party led by Toni Preckwinkle has targeted one judge. The accusations stem from a decades old case this judge prosecuted that was investigated by a now discredited police detective. Without question, this detective was corrupt and his work led to wrongful convictions. Prior to selecting this judge, Preckwinkle and the local democratic party had determined that they would pick one judge to campaign against. Originally, they selected a judge who was awaiting sentencing for a federal conviction for acts unrelated to her judicial service. Once she withdrew from the retention ballot, the focus changed to the current judge. Interestingly, the accusations against him are contained in a civil lawsuit seeking millions of dollars to compensate the exonerated person for the years served in prison for the wrongful conviction. The plaintiff’s lawyers have been leading the attack on this judge/defendant. While that case winds its way through the courts, this collection of lawyers and politicians have pronounced sentence on the judge. No due process or evidence has been presented. The allegations seem to be enough. If they succeed, does this mean that the judiciary will lose its independence and have to answer to the Cook County Democratic Party? Judicial accountability is essential, but this isn’t the way achieve it.

On November 6, 2018 voters will be voting for multiple candidates nationwide. In Illinois, and specifically in Cook County, which encompasses Chicago and the surrounding suburbs, voters will also be deciding the career fates of multiple judges. A handful of judicial races will be on the ballot. Very few of these races are contested. At the end of the ballot, just over 60 judges names will appear asking the voters to vote “Yes” to retain them for another 6 year term or “No’ to kick them off of the bench. In past elections, this was a mere formality. In this election, a number of forces have targeted a few judges for a “No” vote. Specifically, one judge has been the subject of an intense campaign to unseat him. Using social media and with the help of the Cook County Democratic Party, this is an all out press to remove this judge. The basis for this attack is the judge being named as a defendant in a civil rights lawsuit from conduct as a prosecutor, long before his 18 year career on the bench. These allegations, while serious, have not been proven. Thus, the allegations at the core of this effort have yet to be tested in court. There is little to no, allegations of his conduct during his 18 years as a judge. When the votes are counted, we will see if this judge survives these efforts. The larger question is what happens to the independence of the judiciary going forward. Politicians have been attacking the judiciary, calling judges corrupt when faced with unfavorable rulings. The hearings to confirm Justice Kavanaugh damaged the appearance of the Supreme Court and exposed a level of partisanship that is shameful.