>>> Item number 437, dated 94/01/22 13:12:41 -- ALL
Date: Sat, 22 Jan 1994 13:12:41 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: DISCIPLINING JUDGES
There are relatively few cases in which judges have been reprimanded or criticized for public comments. In Canada, the case of Justice Thomas Berger (see the Toronto Globe and Mail, Saturday November 13, 1993 front page article dealing with Justice John Sopinka) appears to be one of the most noteworthy. Are any List members aware of other judges who have been criticized or more to the point removed from the bench because of public commentary of a socio-political/legal nature offered in the course of a judgement or simply for public consumption? A colleague has suggested that the "standard for disciplining judges is notoriously biased in that only radical judges get disbenched". Is this assessment accurate? I am currently engaged in research on the case of Louis St. George Stubbs, a Canadian judge who was removed from the bench in the early 1930s because of his apparent sympathy for workers. I would appreciate any leads on this general subject in British, American, or Canadian jurisdictions. Tom Mitchell, Brandon University.
>>> Item number 439, dated 94/01/22 15:54:14 -- ALL
Date: Sat, 22 Jan 1994 15:54:14 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Disciplining Judges
I claim no special expertise on Tom Mitchell's query, but there are several examples in which U.S. judges have been targeted for removal as a result of statements on controversial matters. Probably the most famous early instance was the impeachment of Supreme Court Justice Samuel Chase during the Jefferson Administration. The precipitating events there were Chase's comments from the bench while presiding at trials in the circuit court. For a recent defense of Chase, see Stephen Presser, The Original Misunderstanding; this episode is also discussed in Chief Justice Rehnquist's recent book, Grand Inquests.
Several members of the California Supreme Court, most notably Chief Justice Rose Bird, were defeated for re-election during the 1980's as a result of a well-organized opposition campaign. This episode has also generated a good deal of writing, including a book by (I believe) Preble Stolz of the Boalt Hall law school (UC-Berkeley).
Beyond that, there have been efforts to discipline or remove various trial judges in the U.S. for comments that they have made in criminal cases. For instance, complaints were filed against a Texas trial judge who gave lenient sentences to two defendants who assaulted some gay men in the Houston area; the judge made some quite disparaging remarks about the victims in explaining the light sentences. There also have been situations in which trial judges have given lenient sentences or acquitted defendants in sexual assault cases on the ground that the women had somehow "asked for it." I don't have citations to these items, but I recall situations like this in several states over the past few years. Similarly, I believe that the Michigan judicial disciplinary commission not too long ago forced a judge off the bench for making racist comments.
--
Jonathan L. Entin
Professor of Law
Case Western Reserve University
jle@po.cwru.edu (Internet)
I neglected to include my e-mail address when i submitted the item concerning disciplining judges. For any who wish, Tom Mitchell may be contacted directly at Mitchell1@BrandonU.ca.Cheers
Tom Mitchell:
Within the last two weeks the Illinois Judicial Inquiry Board removed a Judge Keith for his philosophy and courtroom remarks. This was reported in the public press (I remember seeing it in the Chicago Tribune week before last). I assume their opinions and orders are public record but they are not included in the Illinois reporter system or West. If you are interested let me know and I will get you the address of the Board. Unfortunately I have it at the office and am at home at this time.
Steve Beckett
University of Illinois
College of Law
>>> Item number 441, dated 94/01/23 14:47:37 -- ALL
Date: Sun, 23 Jan 1994 14:47:37 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Disciplining Judges
I recently completed writing a chapter on a South Carolina Judge, who was neith er a radicial nor insane. The South Carolina legislature attempted to impeach h im three times and even trick him off the court. The Judge was John Faucheraud Grimke of Charleston, (1752-1819). If you would like I could send you some inte resting information about him.
One future jurist observing Grimke conduct grand jury hearings, where the grand jury found 39 of 40 bills true, overheard one suspect refer to Judge Grimke an d Solicitor Robert Starke in the following manner. "Starke holds while Grimke s kins!" If you would like I could send you a summary of his controversial times on the court.
STEPHEN E. KING
P.O. BOX 1027
COLUMBIA, SC 29202-1027
(803)-739-9798 FAX (803)-739-9798
T400383@UNIVSCVM
Regarding your request about disciplining judges:
There was an incident in Chicago, I think around 1989 or 1990. The judge made a couple of outrageous comments to women who appeared before him in court (I believe he told one, who was pregnant, that if her husband had kept his hands in his pockets THAT never would have happened. I think he also said it in open court. The lawyers went public with what he said, the local bar association got on the case, and the judge was ultimately not re-elected (he was a state court judge). Unfortunately, I have forgotten his name. Right around that time (and this might have been a result, or it might have been the cause of all the attention, again, the facts are not very clear to me) there was an investigation into incidents of discrimination and harassment in state courts in Illinois. I think that the report was sponsored by the Illinois Bar Association, and there was a report on gender bias put out a year or so later. I believe that there were lots of ancedotes about the problem, and it was generally denounced, but I heard jokes about it at Bar Association gatherings later, so it doesn't seem to have changed much.
There was another case, in federal court in the Northern District of Illinois, where a judge was accused of calling someone a wetback. This was roughly the same period of time. I think he apologized, but there was no reprimand. That judge's name was Duff.
I think I've seen other incidents in the papers in Chicago over the period from 1985-90, but most of the time the outrage had no effect on any judge's career.
Elizabeth Dale
U of Chicago
erd1@midway.uchicago.edu
>>> Item number 442, dated 94/01/23 22:30:03 -- ALL
Date: Sun, 23 Jan 1994 22:30:03 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Disciplining Judges
Some time ago I did a study of judicial removal in Arkansas. Almost all=20
of these were in the 19th century, and the causes ranged from unpopular=20
decisions in controversial cases to partisan and political maneuvering.
See, Smith, "=D2Impeachment, Address, and the Removal of Judges in=20
Arkansas: An Historical Perspective."=D3 Arkansas Law Review, 32 (1978): =
=20
253-268.
Stephen Smith
Communication
University of Arkansas
>>> Item number 444, dated 94/01/24 15:38:40 -- ALL
Date: Mon, 24 Jan 1994 15:38:40 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: DISCIPLINING JUDGES
I do not have the appropriate citations to hand; but there have been a number of occasions where judges have been 'requested to explain' their actions before the (UK) Lord Chancellor. In particular, the outspoken Judge James Pickles was in trouble several times for comments made to newspapers prior to his retirement in 1990. If you require further details I will see what can be obtained (mostly newspaper reports)
David Lane
Anglia University.
>>> Item number 445, dated 94/01/24 16:44:55 -- ALL
Date: Mon, 24 Jan 1994 16:44:55 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: DISCIPLINING JUDGES
> There are relatively few cases in which judges have been reprimanded > or criticized for public comments. ... > I would appreciate any leads on this general subject in British, > American, or Canadian jurisdictions. Tom Mitchell, Brandon University.
You might like to follow up the recent Jim Staples case in Australia; I don't know much about it, but he was an industrial (labor) judge who was, in effect, removed from office, supposedly because of his pro-worker attitudes. A number of judges were also sacked in colonial Australia when the notion of judicial tenure was not yet established. One or two had the great distinction of being sacked in several jurisdictions. As I recall it, one was removed from office in Canada as well as Australia. I could follow these up more easily than the Staples case. On the latter, you might like to contact my colleague Frank Carrigan, School of Law, Macquarie University, NSW 2109, Australia. Frank's email address is Frank@uriah.law.mq.edu.au, but I don't know that he is an avid user of email. Fax: (Australia) 2 805 7686.
Bruce Kercher
Macquarie University
Bruce@uriah.law.mq.edu.au
>>> Item number 447, dated 94/01/24 18:43:55 -- ALL
Date: Mon, 24 Jan 1994 18:43:55 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Disciplining Judges
This message was posted by Ted Werntz WERNTZ@EISNER.DECUS.ORG +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Tom Mitchell writes:
> There are relatively few cases in which judges have been reprimanded > or criticized for public comments. In Canada, the case of Justice > Thomas Berger (see the Toronto Globe and Mail, Saturday November 13, 1993 > front page article dealing with Justice John Sopinka) appears to be one of > the most noteworthy. Are any List members aware of other judges who have > been criticized or more to the point removed from the bench because of > public commentary of a socio-political/legal nature offered in the course > of a judgement or simply for public consumption? ....
Judge Dominick Hall of New Orleans was forced into exile by Gen. Andrew Jackson, for issuing a writ of habeas corpus for a state legislator who Jackson had arrested after the legislator publicly criticized Jackson's high handed treatment of the citizenry of New Orleans during the War of 1812. Jackson was fined, but Congress refunded his fine with interest after he was elected President.
In the U. S. Supreme Court case of Worcester vs. The State of Georgia, Jackson as President played the deciding role, not by removing justices of the Supreme Court, but by nullifying the Supreme Court decision he disagreed with, which effectively removed the Supreme Court from participation in future related cases. Jackson did this by ignoring the decision and refusing to enforce a writ the Supreme Court issued in 1832 that favored the Cherokees. Jackson's action, or lack of action, denied to the Cherokees legal protection from the judicial system, with the result that the Cherokees, as a nation, were soon forced at gun point into permanent exile, and the main conveniently located sanctuary for runaway slaves was destroyed.
Samuel Worcester was a missionary of Calvinist background from Vermont, who with permission from the Cherokees, lived among them. Worcester was a classmate of Cherokee chief Elias Boudinet while both studied at Andover. The two became friends and after each married, both young couples moved to the Cherokee capital at New Euchota. Here Boudinet was editor of the Cherokee newspaper, The Phoenix, and Worcester was principle advisor who had helped buy the Phoenix's printing press in Boston. Worcester was especially interested in translating important English works into Sequoyah's Cherokee syllabary so that they could be printed on the Phoenix's press. The State of Georgia soon passed a series of anti-Cherokee laws, including a law setting a date on which all land owned by Cherokees was to be expropriated and a state lottery used to award the land to white men. In addition, Georgia's new laws abolished the Cherokee government, nullified all Cherokee laws, prohibited meetings of the Cherokee Council and all other meetings of Cherokees, denied the right of Cherokees to testify in court against a white person, and denied any Cherokee the right to dig for gold in the recently discovered Cherokee gold field.
To protest Georgia's anti-Cherokee laws, Worcester refused to swear allegiance to the State of Georgia as whites were required to do in a recently passed Georgia law. Worcester and other protesters were arrested by the Georgia state militia, who beat them, put them into chains, and forced them to walk at the end of a wagon for 35 miles a day until they reached the jail at the county seat. For his "crime" of refusing to swear to a loyalty oath, Worcester was sentenced to four years at hard labor in the state penitentiary, during some of which time he was denied all visitors.
The Supreme Court, in Worcester vs. The State of Georgia, held that the Georgia law was unconstitutional and on March 3, 1832 ordered that Worcester be released from the penitentiary. President Jackson opposed the Supreme Court ruling and refused to take any steps to enforce the Supreme Courts decision. He reportedly said of the Chief Justice, "John Marshall has rendered his decision, now let him enforce it."
Despite the order of the United States Supreme Court to release Worcester, month after month, he languished in jail, as Jackson refused to lift a finger to take any steps seeking Worcester's release from prison. When Worcester was finally released the following year it was in time to be driven from his home and to watch the Phoenix be suppressed and its press confiscated. The inability of the Cherokees to find justice in the American court system, even when they "won" a Supreme Court "victory", was devastating to Cherokee morale. When soldiers with bayonets came to force the Cherokees to evacuate their homeland with a forced six month winter march to exile in the American Gulag, Jackson found complete victory for his "Indian removal" policy. This victory for Jackson's policy was based on nullifying a Supreme Court ruling which Jackson vehemently opposed. While Jackson's pursuit of his Indian removal policy did not remove from the bench any of the Supreme Court Justices, it did remove the Supreme Court, and the legal system in general, from further attempts to secure for the Cherokees their legal and constitutional rights. This is the reason judges would be removed from the bench in the first place. Jackson's determination in destroying all organized Indian communities east of the Mississippi, is conveniently overlooked in histories such as Arthur Schlesinger's the "Age of Jackson."
The fate of the organized community of Cherokees is a blueprint for suppression of later organized worker and radical movements. When a worker oriented movement became sufficiently strong to pose a threat to existing power relations, the techniques of suppression and destruction had already been developed and tested on the Cherokees. Radical groups like the IWW have experienced some of what the Cherokees suffered. Had the IWW been better organized, and hence stronger, it would have received even more of the treatment bestowed on the Cherokees and other eastern Indian communities.
For Jackson's forced exile of Judge Hall see Leon Whipple, "The Story of Civil Liberty in the United States" (New York: Vanguard Press, ACLU, 1927) page 44 to 48. For Andrew Jackson and the case of Samuel Worcester vs. The State of Georgia see Dale Van Every, "Disinherited: The Lost Birthright of the American Indian" (New York: Avon, 1966) Chapters 11 and 12.
Ted Werntz
+++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ In the mid-1970s, Circuit Judge Archie Simonson of Madison, WI was recalled and defeated after sentencing a rapist to probation and commenting that the victim was dressed in such a way as to make herself irresistible to her attacker.
Also, while Milwaukee Circuit Judge Christ Seraphim (yes, that is his name) was suspended for two years mostly for feeling women up in elevators, the state Supreme Court also noted his propensity for belittling defendants in his criminal court. He was defeated in the election immediately following his return to the bench.
There are a couple examples.
Mike McCallister
U of Wisconsin-Madison
michael.mccallister@mail.admin.wisc.edu
msmccall@students.wisc.edu
>>> Item number 454, dated 94/01/26 20:02:48 -- ALL
Date: Wed, 26 Jan 1994 20:02:48 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Judicial Discipline
I have recently completed a major study of the U.S. federal judiciary that
explores the reasons for leaving the bench of some 190 federal judges from
the beginning of the judiciary to 1992. The article, "Resignations and
Removals: A History of Federal Judicial Service--and Disservice--1789-
1992", will be appearing in volume 142 of the University of Pennsylvania
Law Review in the next two or three weeks (I hope!). There may be other
articles in that issue of interest to you. If you would like a reprint
or more information, let me know.
Emily Van Tassel
Widener University School of Law
Harrisburg, PA.
emily.f.vantassel@cyber.widener.edu
To the person who asked about judicial discipline:
There were a couple of highly-publicized cases in Massachusetts in and around 1986 where judges came under fire for outrageous comments and conduct toward women seeking restraining orders. If I recall correctly, one of the women, Pamela Nigro Dunn, was murdered after unsuccessfully seeking a restraining order from a judge in Middlesex County; the judge had not only refused to issue the order, but had made some pretty outrageous comments. I believe the case was discussed in an article in the N.Y. Times for 30 November 1986, and you will certainly find extensive coverage of it in the Boston Globe (which is indexed) around that time. Disciplinary proceedings were instituted against the judge, and I believe he was disciplined by the Supreme Judicial Court, though I don't recall exactly how.
Larry Goldsmith
History Dept.
University of Pennsylvania
lgoldsmi@mail.sas.upenn.edu
Laurie Wermter saw the disciplining judges query on H-Labor and sent this reply which I am passing on to H-Law. Seth Wigderson H-Labor moderator
+++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++ +++++
Date Wed, 26 Jan 94 13:11 CDT
>From Laurie Wermter <WERMTER%macc.wisc.edu@UICVM.UIC.EDU>
Subject Re: DISCIPLINING JUDGES
In 1977 Wisconsin Judge Archie Simonson was removed from the bench thr recall election because of comments he made from the bench during a di hearing in a rape case involving a 15 year old male attacker; his comm interpreted as excusing rape as a normal response to provocative cloth the current sexual permissiveness. There's a five-paragraph account i edition of Facts on File (see page 712, first column); most library re departments will have Facts on File.
Laurie Wermter <WERMTER@MACC.WISC.EDU>
Memorial Library
University of Wisconsin-Madison