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When Can a Judge Ethically Be an Advocate for a Party?

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Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it might be OK for a judge to be an advocate for a party, at least in a case where he has "a strong vision of legal justice and then acts in service to that vision."

That's the answer I believe is suggested by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
That is the view I have taken in the dispute about the Holloway carjacking case, decided by Judge John Gleeson of the Eastern District of New York.  I have discussed this case before, but Prof. Berman's answer this weekend highlights the need to do so again, and in a separate entry.

The reason is simple but prepossessing:  If judges are permitted to behave the way Gleeson did, the notion of law as we understand it is over with.  The only thing left will be will. And when nothing but a judge's will prevails, the legitimacy of judicial review itself vanishes.

In a nutshell, this is what happened in the Holloway case (the story is fully covered in the NYT).

Holloway was in his mid-30's while he and several other criminals were running a "chop shop," i.e., a gang that steals cars and loots them for their parts. Holloway's method of stealing was not plagued by an excess of subtlety:  His cohorts would stick a revolver in the driver's face.

In a foolish act of leniency, the government offered Holloway a plea deal for 11 years.  In a corresponding act of foolish self-assurance, Holloway rejected it, evidently believing that he could hoodwink the jury at trial.  He failed and got convicted on three counts of armed carjacking.  

This was not some high school kid who got caught smoking a joint, mind you. For his multiple violent felonies, Holloway was sentenced, under 18 USC 924(c), to 57 years.

Unhappy at his failure to jive the jury, Holloway took his case all the way to the Supreme Court where, unlike all but a tiny fraction of one percent of federal defendants, he got review on the merits.  He lost by the lopsided vote of 7-2, in an opinion  by the Court's then-most liberal member, Justice Stevens, and joined in full by, among others, Justices Souter and Ginsburg.

But Gleeson  --  two levels down in the federal judiciary  --  was not happy.  He initiated his own backdoor maneuvering for Holloway.  As the NYT puts it (emphasis added):

Judge Gleeson began his own campaign on Mr. Holloway's behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway's convictions.

Of course there was no basis for vacating them, since, in addition to being final after being affirmed by the Supreme Court, there was nothing wrong with them. Thus Ms. Lynch initially refused.

As the Times recounts, Gleeson wasn't finished:

Ms. Lynch, the federal prosecutor, declined to [move to] vacate the convictions, suggesting that Mr. Holloway could ask for clemency.

In May, Judge Gleeson urged Ms. Lynch to reconsider. Clemency "is not a realistic avenue to justice for Holloway," the judge wrote, because the Justice Department is prioritizing clemency for nonviolent offenders.  [Ed. note: Imagine that]. He cited Mr. Holloway's family, his clean disciplinary record and his participation in prison programs as evidence of his rehabilitation and his prospect of a normal post-prison life.

Ms. Lynch acquiesced.


Do you love that use of the word "acquiesced"?  I think what it means is that, when a judge before whom you appear every day is demanding something, you better wise up.


But still Gleeson was not finished.


Apparently, and quite rightly, fearing that a judge not so personally obsessed with the windfall outcome Gleeson aimed to secure  --  that is, a neutral judge  -- might not go along with this charade, Gleeson himself decided the motion he had bludgeoned out of the government. Neutrality and dispassion  --  formerly thought to be hallmarks of good judging  -- were not to be permitted.


On that record, I asked Prof. Berman  --  again, a distinguished attorney and teacher, not an NACDL headcase  --  the following questions:


1: Is it ethical for a judge to be an advocate for a party?


2: Is it ethical for a lower court to backdoor the judgment of a higher court by re-opening a final judgment whose validity no one questions?


3: Is it ethical for a judge to decide a case in which he has made it extremely clear he has a (non-financial but strong) stake in the outcome?


4: Is it ethical for a court to rule in a case it has prejudged?


This is not real hard.  The correct answers are no, no, no, and no.  Prof. Berman's answers were:


1. I think it unethical for a judge to be an advocate for a party, but I also think it is obligatory for a judge to pursu[e] justice within the constraints of the law. I am generally inclined to believe that when a judge might sometime appear to be an advocate for a party, more often (if not almost always) it is because the judge's vision of justice parallels a party's advocacy. That is my superficial take on Holloway, but I would need to see all the papers to make an informed judgment.

2. When one party keeps making motions that a prior judgment is not valid, I think a judge has an obligation to keep considering those motions as the law provides. Moreover, as I have written in a recent law review article, I think sentences, as opposed to judgments, should be given less weight with respect to finality interests. That said, I do think it is ethically questionable for judges to be looking for ways to reopen and change judgments absent compelling changes in legal or factual circumstances.

3. + 4.: These are very hard questions as they involve matters of degree that could, by some logic, make it arguably unethical for Justice Thomas to rule on any prison conditions 8th A case because he has clearly indicated since 1992 that he strongly believes the 8th A does not regulate prison conditions (despite established SCOTUS precedent to the contrary). I would be troubled if every prisoner appealing such a claim to SCOTUS could assert it would be unethical for Justice Thomas to consider his case.

That all said, I think you raise a number of reasonable concerns about how Judge Gleeson handled the Holloway case. Interestingly, they are somewhat similar to complaints that have been lodged --- so far with no relief or real response --- by lawyers representing Sholom Rubashkin concerning how Judge Reade handled his trial and sentencing. And I think the lines get real blurry when judges have a strong vision of legal justice and then act in service to that vision.


I want to draw particular attention to that last sentence:  "[T]he lines get real blurry when judges have a strong vision of legal justice and then act in service to that vision."


To understand how "blurry" the ethical lines actually are, one not be particularly imaginative.  One need only ask whether any remotely fair-minded person would think the lines were "blurry" if John Gleeson and his "vision of legal justice" were hard line, and then attempted to do for the prosecution what they did for the defendant.



24 Comments

I am glad you provided my full answers, Bill, because the context shows you are misleading the reader when you suggest that I said it is ever "OK for a judge to be an advocate for a party." We have been discussing in other settings the harms and problems with others misrepresenting your position, and now you go and start a new post apparently intended to misrepresent mine. Before we get further into this debate, I want a clear answer with, I hope, will better help me evaluate whether I think you are truly an ethical person:

Do you really believe I am asserting in the comments you quoted that I think it is "OK for a judge to be an advocate for a party"? If not, why do you suggest this is what I said? If so, please more fully explain why you think that is my assertion.

This is very important, Bill, because until I get a better explanation of your effort to besmirch me here by misrepresenting my words, I feel compelled to no longer engage with someone whom, I fear, has now revealed himself to be an ethical charlatan.

Just to be extra clear why I think you are acting scurrilously in this setting, Bill, I am eager to stress that in my answer to question #1, my first sentence states clearly "I think it unethical for a judge to be an advocate for a party,...." But, based on an effort to engage in a nuanced and reasonable discussion of challenging issues of judicial ethics, you falsely indicate that I provided an answer that it is "OK for a judge to be an advocate for a party." That is not what my answer was, and thus I want ASAP an explanation for how you came to believe that was my "answer" and why you were here so eager in this post to claim that is my view. I am very concerned you are more interested in attacking me and my ethics than in having a serious discussion about judicial ethics and the Holloway case, and very eager to better understand why.


Doug,

You never fail to employ the same strategy: Stay on offense.

Thus, the problem here is not Holloway, a violent felon. The problem is not Gleeson, a biased and reckless judge. The problem is me.

But even at that, you admit that I "provided [your] full answers," word-for-word. With that as the state of play, it's hard to see how I distorted your position, having quoted all of it (indeed, having block-quoted it to highlight it).

But let's go further. My summary of your position, before repeating it verbatim, was this: "[I]t can be OK for a judge to be an advocate for a party when he has 'a strong vision of legal justice and then act[s] in service to that vision.'...That's the answer given by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective."

Sorry, but that summary accurately reflects your position according to your own words.

You ask, "Do you really believe I am asserting in the comments you quoted that I think it is 'OK for a judge to be an advocate for a party'?"

Well, read your words and tell me how I could think anything ELSE. No, you didn't claim that a judge could ALWAYS be an advocate for a party (and I didn't say you did). But it's beyond serious argument that you did not disclaim the propriety of his being an advocate for a party IN WHAT HE VIEWS AS CASES OF INJUSTICE. There is simply no other way to understand this statement of yours: "... but I also think it is obligatory for a judge to pursu[e] justice within the constraints of the law."

You're trying to have it both ways. You start your answer by saying that, no, a judge can't be an advocate for a party, BUT......, and then we're off to Ambiguity Land.

What do we find in Ambiguity Land? We find, again to quote you, that "[T]he lines get real blurry when judges have a strong vision of legal justice and then act in service to that vision."

So what's actually going on here? It seems pretty clear: You want to stake out the pro forma position that a judge can't be an advocate (so you can claim you've staked it out), then elaborate on it in a way that would lead any normal reader to conclude that you think Gleason was not only not unethical, but, to the contrary, was being virtuous if not heroic. You know, standing up for his "vision of justice."

If you actually thought a judge cannot be an advocate for a party, then, when I asked whether he can, you would have said, "No, of course not."

But that wasn't your answer. Instead, you elaborate on the issue for four paragraphs and wind up saying the problem "gets real blurry."

What exactly makes it "blurry" here? I think we all have a good idea. It was that Gleeson acted as an advocate FOR A LOWER SENTENCE -- the exact agenda you've been propounding for years.

It is for that reason that you maintain radio silence about my final point, which was this: "To understand how 'blurry' the ethical lines actually are, one not be particularly imaginative. One need only ask whether any remotely fair-minded person would think the lines were 'blurry' if John Gleeson and his 'vision of legal justice' were hard line, and then attempted to do for the prosecution what they did for the defendant."

If in fact you think Gleeson acted unethically by being an advocate in this case, rather than "blurrily," let me ask a variant of the question you earlier asked me: Will you join in filing an ethics complaint against Gleeson?

**********************

As to your assertion that I'm an "ethical charlatan," I'll just chalk that up to a bad Monday morning and your strategy of staying on offense. I'll also note that it's a step up from the assertion you STILL leave up in your comments section that I'm a necrophiliac. I admit it's a nonplusing choice whether I'd rather be a charlatan or a fellow who has his, ummmmm, social life with cadavers. But, as I've learned, that's the choice you get when you're a legal conservative.

Bill, I have urged you to file a complaint against Gleeson if you think his behavior was obviously unethical. And if, after you draft that complaint, I agree, then I will join you in making it. But the point of saying this is "blurry" in some settings is what I think I make clear based on what judges swear to do:

"I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.” 28 USC 453.

Am I wrong that this is an oath to pursue justice within the constraints of the law? Of course, one obvious constraint is not to be an advocate for a party, because then the judge would no longer be "impartial."

Long story short, you are distorting my nuanced answer to try to assert I am saying something I did not say. I remain unclear why you are so very eager to distort my views. As I have said before, if you think it is so very clear that Judge Gleeson acted unethically in Holloway, I urge you to draft a complaint to that effect. And I will read whatever you draft and see if you convince me that I should add my name to it based on how your characterize what you see as ethical lapses.

I am happy and eager to talk about Gleeson's actions and the Holloway case, which is how we got into this row. But rather than engage with nuance --- or back up your attacks on Gleeson's ethics with a formal complain --- you in this post went out of your way to turn my nuanced points into an inaccurate soundbite that I asserted "it can be OK for a judge to be an advocate for a party when he has 'a strong vision of legal justice and then act[s] in service to that vision'." But that is neither what I said nor what I meant.

I continue to think and fear, based on this response, that you are not content to attack Gleeson's ethics nor willing to back up your attacks with a formal complaint, but that your main desire now it is attack my ethics through misleading claims about what I say and think. I continue to be troubled by both your goals and means, and therefore I am going to have little choice but to now think of you with less respect and to ask people who still have my respect whether they think you are fairly characterizing my statements.

Finally, this is not about staying "on offense" but rather trying to make sure you and others are honest brokers concerning what I say and mean. I try very hard to be an honest broker concerning what others say and mean, and I had thought you had the same values and commitment. But this thread leads me to think I was wrong, which makes me sad, disappointed and troubled.

Doug,

You're trying to have it both ways on whether Gleeson's handling of the Holloway case was unethical.

(Whether I file an ethics complaint is just diversionary. I may or I may not).

I have, however, stated publicly and repeatedly that Gleeson's handing of the case was unethical, starting although hardly ending with the fact that he was an advocate for a party, then ruled on a motion he had prejudged. I have explained all this at length.

This is not about you or me. It's about the behavior of a sitting federal judge. More broadly it's about the lengths to which it is proper to go in the service of the "we-need-lower-sentences" agenda. More broadly still, and crucially, it's about judging, neutrality, respect for statues, and ultimately about the rule of law.

Was Gleeson's handling of the case ethical or not?

Bill, unless and until I read all the relevant papers and know all the facts --- and not just the NYTimes characterization of the facts --- I am not prepared to reach a conclusive informed opinion as to whether Gleeson acted unethically. That is why I would be eager to read a draft complaint from you making the case, which you seem to think is obvious. This is not "diversionary" --- rather it gets to the heart of whether you are just making talk on a blog or really think there is an unethical former prosecutor, now a sitting judge, administering justice in EDNY.

Just for an extra bit of clarity, I think it is unethical --- and a violation of an oath to be impartial --- for a judge ever to be an advocate for a party. But, as my explanation was trying to help you see, what can be perceived by some as advocacy for a party can be seen by others (and by the judge) as complying with duty to "administer justice." Notably, as my inititial explanation mentioned, there is on-going a very high-profile criminal case --- the Rubashkin case in Iowa, with which I am familiar in part because I have authored amicus briefs on sentencing issues --- in which the defendant claims the judge did become an advocate for the prosecutor, but the judge and the prosecutors seem to assert that she was only administering justice.

Please understand, I am never prepared to make a conclusive judgment about any matter --- especially a detailed legal matter --- based only on the reporting of the New York Times. You seem, Bill, to be confident asserting that Judge Gleeson --- and perhaps also the US Attorney --- obviously acted unethically based on the NYT report. I am not so confidence until I have a chance to see/hear all the relevant facts --- particularly because, as I keep trying to highlight in a nuanced way, though it is never ethical for a judge to be a partisan, it is all-too-easy for those who disagree with how any judge sought to "administer justice" to assert that he/she acted unethically partisan.

I concur this is an important matter about "judging, neutrality, respect for statues, and ultimately about the rule of law." That is why I am (1) so eager to find out if/when you plan to support your strong blog claims of unethical judicial behavior with a formal complaint, and (2) so eager to ensure you do not misrepresent either what I have said or what I mean.

Douglas stated: "Please understand, I am never prepared to make a conclusive judgment about any matter --- especially a detailed legal matter --- based only on the reporting of the New York Times."

So, you have read the entire Smarter Sentencing Act, the CBO Report on its costs, and each and every piece of credible academic research on the topic?

I genuinely have tried, Tarls, to read (and blog about) everything I can find about the SSA. Indeed, as you might know --- and as Bill knows because he tried to help me get this info --- I have tried (so far still unsuccessfully) to get complete information about the nature and basis of strong opposition from NAAUSA members to the SSA.

Notably, the SSA is not very long, so reading it fully --- unlike ACA and lots of other federal legislation --- is not all that hard. (In fact, I probably have read the SSA text in full about 15 times.) In addition, I have solicited Bill and others to write about opposition to the SSA in the Federal Sentencing Reporter and I also welcome any and all commentary on my blog. In addition, I have had a number of "off-the-record" conversations with a number of current and former federal prosecutors concerning various aspect of the SSA.

If there is additional information about the SSA that is publicly available that I have not seen or blogged about, I would be very eager to receive such information. And, as I mentioned before, I have a long-standing (not yet fulfilled) request to NAAUSA for more information about its survey of AUSAs on this topic.

That all said, I have long been opposed to any and all lengthy federal mandatory minimum prison sentences for nonviolent crimes, and thus I will readily concede that I am predisposed to support, in general, efforts to reform such statutory mandates. But, more generally, I would view positions on proposed legislation, as opposed to asserting that a sitting federal judge has violated his oath and acted unethically, to have a somewhat different information prereq.

Doug,

I ordinarily share your skepticism about news reports, particularly the criminal justice coverage of the NYT. But it' clear from the Times's long story that it is very much on Gleeson's side. Thus this is not a case where there is any realistic likelihood that it's hiding evidence that would make him look better.

I think the basic facts of the case are clear -- indeed, clear beyond serious argument. Unless the Times is engaged in outright fabrication, I thought this line was jaw-dropping:

“No one is saying Mr. Holloway didn’t do what he was convicted of doing,” said Harlan J. Protass, who was appointed in May as his lawyer. “No one’s saying there was legal error along the way. This is sort of a case of mercy.”

I'll take Prof. Protass at his word because, among other things, he's knowledgeable in the area. Indeed, he's so knowledgeable that the two of you co-authored a sentencing piece in the WSJ.

Prof. Portass's statement that this was a case of "mercy" blows the lid off. The Constitution itself makes post-sentencing mercy the exclusive prerogative of the executive branch. Absent a finding that the 924(c) sentences were unconstitutional -- and Gleeson neither made nor could have made any such finding -- Gleeson's action's were, in addition to unethical, a flagrant usurpation of the Pardon Power.

Mercy is an indispensable component of civilized life, but the Framers reserved it in the post-judgment phase to the President. There is just no way of looking at the case that even begins to justify Gleeson's behavior. It was not just willfulness, it was willfulness run wild.

Bill, do you think some or all of the ethical concerns go away if/when Judge Gleeson had come, circa 2014, to be genuinely concerned that the sentence imposed in 1995 based on 924(c) WERE NOW unconstitutional?

I ask because it is established doctrine that the Eighth Amendment evolves and other constitutional provisions get subject to changing determinations. In 1995 (when Holloway was sentenced), the Eighth Amendment allowed juveniles and those with intellectual disabilities to be executed for their crimes, but that was no longer true circa 2014. Similarly, in 1995, it was believed the then-mandatory guidelines were constitutional and it was unclear whether a defendant could have a viable IAC claim based on turning down a plea deal. Now, circa, SCOTUS has made clear that some (but not yet all) mandatory punishment schemes are unconstitutional and that IAC claims can be based on bad plea advice.

I re-read Judge Gleeson's order linked above and he suggests he had new concerns about the constitutionality of Holloway's sentence. Now I suspect you think such concerns would be makeweight, but I do not want to ask you about their objective substance. Rather, I want to know if you would still think it "clear beyond serious argument" that Judge Gleeson acted unethically if he subjectively had nagging concerns about the continued constitutionality of Holloway's sentence.

Doug,

First, I have (slightly) changed the wording of the fourth and fifth paragraphs. I haven't changed anything about the substance. It's to moderate what you regard, mistakenly in my view, as a directed-at-you personal sting, and remove it from this discussion.

Life is just too short, Doug.

As to your most recent comment:

1. You ask, "[D]o you think some or all of the ethical concerns go away if/when Judge Gleeson had come, circa 2014, to be genuinely concerned that the sentence imposed in 1995 based on 924(c) WERE NOW unconstitutional?"

No I do not, for the following reasons, any one of which would be sufficient.

(a) A judge cannot be an advocate for a party in any way, shape or form. What, Prof. Portass isn't good enough?

(b) A judge cannot prejudge a case. It's an adversary process, and this is true even when one party is blackjacked into "agreeing" with the other (see, e.g., the argument in Dickerson, in which SCOTUS appointed Paul Cassell to present the argument DOJ had abandoned).

It's crystal clear that Gleeson prejudged this whole thing. In all likelihood, he prejudged it 19 years ago. And it doesn't matter a whit if the prejudgment is 100% correct. Can't do it, ever.

(c) You cannot hector a party into making a motion that, left to its own good faith devices, it would not make.

(d) In fact, there is not even an arguable case that 924(c), in general or particularly as applied here, is unconstitutional. This guy is not a youngster selling drugs. He's a full adult running a chop shop whose inventory is provided by repeat, violent (and armed) theft.

(e) Judges reach judgments, they do not say "yea" or "nay" based on their "genuine concerns." Gleeson did not even purport to find the sentence unconstitutional, for the very good reason that he would have been reversed faster than the district court opinion in the Corey Reingold case.

The USAO, cowed though it was, would have appealed an unconstitutionality ruling faster than you can say "Jack Weinstein," and with the same result.

(f) Gleeson most importantly believed that Holloway had been rehabilitated, and so could safely be released. The power to implement such an opinion by judicial order, however, was exactly what Congress, in passing the SRA, set its face against. Indeed, the SRA eliminated parole itself, and the Parole Commission was better able than the judiciary ever was to make judgments about rehab.

(g) Last and hardly least, a judge cannot sit on a case in which he has a stake. Ever. The fact that Gleeson did, in violation of about a thousand years of common law, is strong evidence that he feared the outcome if a neutral judge presided. But any way you slice it, it's an ethics violation.

2. You say, "Similarly, in 1995, it was believed the then-mandatory guidelines were constitutional and it was unclear whether a defendant could have a viable IAC claim based on turning down a plea deal."

This case has nothing to do with guidelines. It has to do with a statute, 924(c). Even the Smarter Sentencing advocates won't touch 924(c) with a ten-foot pole, because the Dems want all the gun control they can get, and the Reps want to crack down on committing serious crimes with a gun.

To say simply that "the law changes" is not a credible argument that the SCOTUS or Congress has any intention whatever of messing with 924(c). It's just a truism. The judgments of federal courts must be based on more than truism. And even if they could be based on truism, they cannot be based on THAT truism. If otherwise, any court could disregard any law, on the facile grounds that "sooner or later it might change."

Whatever such pie-in-the-sky thinking might be, it isn't law. As to 924(c), it's not true, either, not for any timeframe in our generation.

I appreciate you spelling out your perspectives, Bill, and I look forward to seeing whether and how you (or others) file a formal complaint or otherwise ask Gleeson to explain his perspectives on this matter that has you, obviously, deeply troubled.

Meanwhile, I just want to make sure you realize that the JSVA would "mess" with 924(c), but I think you are right that the JSVA is not likely to become law soon. Moreover, I could imagine AG Holder or his replacement advocating a new policy on stacking 924(c), but I also think that is more a wish of mine than a likely reality in the short term.

Trying to wrap my arms around this... so apparently after one has been convicted and his/her sentence is final, said convict (or apparently a judge on his behalf) can lobby the prosecutor to vacate their sentence? Is this some variation on executive clemency? I'm confused.

Matt,

It's fine for a defendant or his lawyer to lobby the prosecutor to a fare-thee-well, before the conviction and afterward.

It is not fine for the JUDGE to lobby the prosecutor (or, for my money, any attorney in a case before him) to make a motion he would not make without outside influence. The prosecutor appears before the judge day in and day out, and the risk that the judge's "request" is, and/or will be thought of, as intimidation is just too high.

This danger is especially acute when the judge is trying to influence decisions by an officer of a co-equal branch of government. In that instance, there are separation of powers issues as well as issues of intimidation.

If the judge wants to write a letter to the President, fine with me. The President does not appear in his courtroom.

While pressuring the prosecutor (directly or indirectly) is a big issue affecting my assessment of the Judge, it is not as big as being an advocate for a party, prejudging the case, or deciding what, by your public campaigning, you have made your own case. A judge cannot decide his own case, ever.

The question I keep asking is what anyone would think if Judge Gleeson had been an agitator for the prosecution to anything like the extent he was for the defendant. I think the answer is that there would be a hue-and-cry for his resignation or removal, not a glowing article about what a hero he is.

The judge's obligation to remain strictly neutral does not, of course, vary according to whether he's on a crusade for Side X or Side Y. He shouldn't be on a crusade at all. When you take up judging, you give up crusading.

Doug, Bill's got you here. You're far too cute for the good of your argument. It's painfully apparent from the back and forth that Gleeson's antics are ok with you. So why not just own it?

Bill, your sentiments seem like common sense to me. How anyone can see otherwise is beyond me. If a judge doesn't like applying the law, he is probably in the wrong line of work.

federalist, I am on record in a lengthy law review article asserting the law should not treat sentences as final as convictions, and thus the outcome in Holloway is "ok with me." That said, I think Bill makes important points about "Gleeson's antics" --- and thus I am coming around to the view that Gleeson merits some criticisms for taking wrong approach to reach an outcome that is "ok with me" outcome. (To be clear, I am still unprepared to assert Gleeson has acted unethically --- in part because that also might call for a conclusion that the prosecutors were complicit in unethical behavior --- but I am coming around to seeing merit in Bill's criticisms of Gleeson's methods).

For the record, I would have liked to have see --- indeed, have encouraged judges in other similar settings --- to have the courage of their constitutional convictions as declare excessive sentences to be unlawful rather than push the prosecutor to get to a desired outcome via a discretionary backdoor means. Then Bill (and you, I assume) would be back to calling Gleeson a bad and "lawless" judge, but not an unethical one.

But, in this context, I candidly wonder if you and Bill would prefer a more legalistic approach to that end. This is, arguably, what the federal district judge in California did to blow up the entire California death penalty and the consequence to the entire system of justice there is considerable. I do prefer judges just being judges and dealing with the law --- rather than telling prosecutors to make their jobs easier --- so I want to make clear that I prefer the approach adopted by judges who push the legal envelop rather than push the prosecutor to avoid having to push the legal envelop. But I also want to hear if you and Bill and others concerns about what Gleeson has done here if you really have more respect and praise for the Weinsteins and Rheinhardts who use the law rather than prosecutors as their means to a desired end.

Sorry for all the typos, had limited time to post comment. But I trust you get the point.

Doug, I'd prefer that judges follow the law. And no, the law isn't (from a normative sense anyway) that which comes out of some judge's mouth. What you do here is present Bill and me with some sort of Hobson's choice--tolerate lawless bullying of Gleeson or the abuse of the system by people like Reinhardt.

I reject this out of hand.

But back to the beginning of this tete a tete. Bill quotes you, and you say he's treated you scurrilously. Honestly, your position is pretty hopeless. You expect Bill to take your "Well, judges shouldn't advocate for a party" seriously, when you gut that statement with your caveats. And no, we don't have to take your follow-on dissembling as enlightening us as to nuance.

Doug,

"I also want to hear if you and Bill and others concerns about what Gleeson has done here if you really have more respect and praise for the Weinsteins and Rheinhardts who use the law rather than prosecutors as their means to a desired end."

Let's put it this way: I have less disrespect for Reinhardt and Weinstein than I do for Gleeson. Better frankly lawless than proudly unethical.

That said, there is no excuse for either Reinhardt or Weinstein. I strongly suspect that you give them kudos for what you call "pushing the legal envelope" ONLY because they push it in one direction only, to wit, to favor criminals.

If they were equally "innovative" in the other direction, would you be equally enthusiastic about the envelope-pushing?

Reinhardt has gone so far as to acknowledge -- or, rather, proclaim -- that he'll keep ignoring the law in order to genuflect to hoodlums because the Supreme Court "can't catch them all."

That is simply breathtaking, no? A judge's statement of pride that he can get away with it, not because it's right, but because the higher court just doesn't have the time to clean up every instance of his despoiling the law -- along with restraint, modesty and discipline -- is astounding.

Couple of quick responses:

1. I continue to wonder, federalist and Bill, if you care to comment on whether you think Sholom Rubashkin has made a credible claim that US District Judge Linda Reade acted as advocate for the prosecution in that high-profile case out of Iowa. You both seem eager not only to assail Gleeson, but also to suggest little nuance is to be seen in the difference between administering justice as the judge feels duty-bound to do and being an advocate for a party. Ergo, I am eager to have you explain, in a distinct setting, how to judge a seemingly close case in which, according to the defendant, the judge was an advocate for the prosecution based on ex parte contacts and other factors.

2. You are right, Bill, that I generally prefer seeing judges push the legal envelop in favor of individual rights against what I see as excessive government powers. In light of the Constitution's strong commitment to limited federal government and to aiding individuals w/r/t "life, liberty and the pursuit of happiness," I hope all Americans support and respect efforts by federal judges to protect individual rights in accord with constitutional values and traditions. But it seems that you think judges should not work hard to respect individual rights when doing so would "favor criminals." Instead, I surmise, you want judges to make sure that their efforts to administer justice in criminal cases always is directed toward favoring the government.

3. I also think Reinhardt's bragging about his approach to defying existing law is troubling.

Doug --

I know almost nothing about the case in Iowa. If the defendant believes his rights have been violated in any way, I suggest he take an appeal (if he hasn't waived it).

I'm reasonably responsive, more so than most blog authors (see, e.g., for example, Volokh or Powerline), but giving time to points I want to make, rather than being reactive to what others want me to attend to, is where I invest my time. So the Iowa defendant and his counsel are welcome to make whatever arguments they want, but I won't be putting time into it. I generally make my own schedule and have my own priorities. This makes me like the rest of the world.

Judges should try in good faith to figure out what the law is and follow it. Reinhardt and Weinstein don't. Judicial power (which of course is a form of government power) is too awesome to indulge indiscipline and agenda-building. That's what politics is for. I prefer to see the judiciary remain, as Prof. Alexander Bickel said, the least dangerous branch.

Sorry, Doug, no dice. I recall reading a post about that Iowa case a few years back--if she helped the prosecution unethically or unlawfully, she should be punished. I really don't know what else to say about it. Unlike many conservatives, I am not a statist. Judges and prosecutors ganging up on the citizenry ain't my bag, and I have zero tolerance for it.

I may be many many things, but a hypocrite I am not.

What I find somewhat amusing is your tolerance (with some fig-leaf tut-tutting) for judicial mischief when there are criminals to be helped. The incongruity of your protestations here about Bill's "scurrilous" attacks and your "boys will be boys" attitude towards real judicial abuse is remarkable.

What I honestly find the most contemptible about that attitude is the obsequiousness of it all. Judges are human beings; most of them aren't the sharpest tools in the drawer, and making a fetish of judge-worship when their "wisdom" (read criminal-coddling worldview) translates into some criminal getting off easy is as pathetic as some naive college students gushing over some really cool prof. Gleeson isn't some wise law-giver--he's a bully who thinks some criminal got too long a sentence.

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