Calling All Wingnuts

The 4th Circuit Court of Appeals is widely believed to be the most conservative of the circuits. Yesterday, 2 judges from that court - progressives that regularly find themselves disagreeing with the majority decisions issued by that bench - came to speak at the law school.

The panel was moderated by the founder of the American Constitutional Society, Peter Rubin and featured Judges Blain Michael and Diana Gribbon Motz.

Rubin did a great job asking questions a lot of us had on our minds… How do they work within such an ideological bench? What do they see their role as being in terms of regular dissenters?

A pretty counter-intuitive point that Judge Motz raised had to do with the dissents she writes. Since this court is the last court before the Supreme Court, theirs is almost always the last word; as such, they set binding precedent. Judge Motz explained that with that in mind, she will often temper her dissents. Instead of writing a full-throated, fact-heavy, intensely reasoned rebuttal of the majority opinion, she opts to write a sparse opinion - just enough to note her dissent. Alternatively, she may choose not to dissent at all. Why?

Well, this is where the law gets quirky and interesting. If she were to write a full-bodied dissent, when similar cases arise later, lawyers depending on the (wrongly decided) majority opinion could - and would - cite the dissent in such a way as to say, “Even under this set of facts, so ably presented in the dissent…” In sum, Judge Motz explained that stridency could work against future litigants she would view sympathetically.

Judge Michael, amongst other things, spoke of the great comity and collegiality the 4th Circuit is noted for.

Then Rubin asked a question about the Justice Department gaming judges. He brought up the Hamden case in which the gov’t first professed to be holding him as an enemy combatant.. as such, he wasn’t given a lawyer and was subjected to a bunch of other legal indignities. When it looked like he was going to get a hearing, Justice disclaimed the EC status and charged him criminally - after 5 years of holding him without charge… Anyway, there were a bunch of shenanigans going on - a real abuse of the legal system. Rubin detailed it all pretty well and then turned to Motz to get her take.

She said that she refused to believe that the lawyers from Justice were capable of knowingly contravening the Constitution. She refused to believe these people at the Justice Department could be acting in bad faith. If she believed they were betraying their oath to the Constitution, well, she just couldn’t do her job anymore.

Ugh.

They went to questions.

I just couldn’t let it go.

These motherfuckers politicized the Justice Department; used the Executive Branch as the Republican Party’s re-election organ, unilaterally declared torture (anything up to the point of organ failure) legal, illegally contravened the extremely deferential FISA court, repeatedly lied to Congress, etc. etc. etc.

THEY ARE NOT GOOD FAITH ACTORS and to believe otherwise, you pretty much have to be living under a fucking rock.

So I told ‘em so.

I didn’t swear, scream or stomp my feet. But I let them know that it was my suspicion that they let “comity” and “collegiality” cloud their ability to see exactly how bad these actors are.

Judge Michael asked what I would have him do.

The question caught me off guard, so the best I could do at the time is tell him what I would do. I’d disinfect the court system using the sunshine of the media spotlight.

Every single time I saw a decision go down that contravened the law, I’d be calling a press conference to shame my fellow bench members. Dissents don’t get attention. federal Judges that are mad as hell and aren’t going to take it anymore do.

If I had more time, I would have suggested that they file ethics complaints when appropriate. Instead of welcoming that Judge to their bench - the one that lied about keeping his law license while serving as General Counsel to (I think) BYU - well, they should have filed an ethics complaint immediately upon his taking the bench. Judges aren’t allowed to lie to Congress during their confirmation proceedings.

Anyway, it seems that there are lots of ways to expose the cancers that lurk within our intellectually corrupt federal justice system. I sure wish there were more people willing to take risks in defense of our Constitution and the Rule of Law.