NYT Finds an Independent Judiciary and Rule of Law

Update: Think federal judges cannot be the problem? Meet Andrew Hanen, United States District Court for the Southern District of Texas, (SCOTUSBlog, Ballotpedia).
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Here I was thinking corruption, ideology and cold-blooded dogma define the federal judicial branch, citizens litigating in federal court are at the mercy of a shake of the dice.

Adam Liptak and his editors at the New York Times have declared in the news columns that not only do we have an independent judiciary and the rule of law as defining features of the judicial branch, but Donald Trump, he of the many incoherent and bigoted rants, is a threat to same.

At least we enjoy an independent judiciary; that's a relief.

If a reader looks near the bottom of Liptak's some-1,800-word piece, she can find this: "Many of Mr. Trump’s statements about legal issues were extemporaneous and resist conventional legal analysis."

Still, Trump's candidacy is a threat. Interesting.

And no legal scholars were available for knocking down the thrust of Liptak's piece.

Here I am mistakenly thinking Trump is an unpolished lunatic but reflecting the mainstream of the Republican Party.

Thanks for sounding the alarm that Trump is something different, Mr. Liptak; was not aware how independent and incorruptible federal judges are.

Nor was it clear how vulnerable the judiciary is to the ravings of Donald Trump.

Hysteria Against Trump Requires Turning Away

Update: Think federal judges cannot be the problem? Meet Andrew Hanen, United States District Court for the Southern District of Texas, (SCOTUSBlog, Ballotpedia).

Why would any American not defend the inherent right of Donald Trump to give voice to the vitriol and hate behind his movement?

It's because the liberties animating a non-authoritarian politics face determined enemies across the political spectrum in the American political culture.

The substance of anti-Trump arguments, such as there exists substance, suggests implicitly or explicitly a denial of Trump's right to excoriate a federal judge such that the denial promotes a greater social good.

For example, as one line of reasoning goes, because Trump's view are racist, Trump no longer enjoys the right to voice his views.

This reasoning should require no further comment, but this is the USA and defense of liberty usually stops at the bumper sticker or comment below the political column.

Right Wisconsin's Charlie Sykes offers a more nuanced and equally absurd take: Because Trump is a candidate for the presidency of the United States, Trump no longer retains the right to criticize a federal judge. Writes Sykes:

Reflect on this for a moment. A candidate for president of the United States using his pulpit to personally attack a federal judge presiding over litigation involving that candidate’s fraudulent business practices. At best, it was yet another petulant outburst; at worst, it was intended to bully and intimidate the judge, perhaps an attempt to push him to step down. In either case, Trump is using his political position to try to derail his own day in court.

And yet, we are told, this is the man we will should trust with the future of the judiciary?

The tyranny of the judiciary is long documented in America, but one case ought to suffice to goad political commentators in considering Trump's rights vis a vis the federal judiciary, and the question how exactly is Trump bullying and intimidating Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California?

Sykes doesn't say, but all he references are the absurd rants of Trump which, if Sykes were more rigorous, he would recognize as no departure from the neo-facsist Repulbican Party. [Note: Trump's silly remarks amount to: Because Trump has proposed a wall between Mexico and the U.S., and the mass deportation of Mexican immigrants, (presumably without due process in Trump's view), the Mexican "heritage" of Judge Curiel is a disqualification of Curiel's impartiality in hearing federal litigation involving Trump.

Sykes on the other hand argues that because Trump as the presumptive Republican Party nominee is arguing his position publicly as a component of his presidential campaign, Trump is improperly impugning the impartiality of the judiciary branch. Both are ludicrous positions, but Trump as well as Sykes retain their First Amendment rights to state their positions, irrespective to the soundness and rigor lacking in both arguments.]

United States v. Dellinger et al

As to that one case, consider the 1969-1970 indictment, trial and convictions, (along with a mistrial), of peace and social justice activists in United States v. Dellinger et al, overturned on appeal, (472 F.2d 340; 1972 U.S. App. LEXIS 6620; 22 A.L.R. Fed. 159) (February 8, 1972, Argued; November 21, 1972, Decided).

The Chicago Eight were peace and social justice activists who faced prosecution for allegedly violating federal Anti-riot Act, (18 U.S.C.S. § 1821), and a host of other ludicrous charges steaming from protests at the 1968 Chicago Democratic Party Convention. Ironically, the Anti-riot Act was a provision of the Civil Rights Act of 1968.

The defendants were David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, Jerry Rubin, Bobby Seale, John Froines and Lee Weiner, all of whom were friendly to or intimately associated with the National Mobilization Committee to End the War in Vietnam, MOBE, to name one conspiring organization, "others identified in the record being Professor Sidney Peck, Western Reserve University, Professor Donald Kalish, University of California at Los Angeles, Msgr. Charles O. Rice, Pittsburgh, and Rev. Ralph Abernathy, Southern Christian Leadership Conference, Atlanta. Rennie Davis, aged 28, was MOBE's Project Director for these activities and set up an office in Chicago." (NexisLexis).
 
These activists continually ridiculed the presiding U.S. District Judge Julius Jennings Hoffman, and the U.S. Attorney Thomas Foran.

The defendants were ultimately vindicated, legally and morally.

Now, if say George McGovern or Edmund Muskie had ridiculed Judge Hoffman as an imbecile and a fascist as part of their campaigns for the presidency, would McGovern and Muskie had been accused of bullying and intimidating the judiciary branch? Of course not.

Or would McGovern and Muskie's complicity in bullying behavior be dependent on whether McGovern and Muskie were directly party in federal litigation involving Judge Hoffman? If you believe what Charlie Sykes writes.

Sykes and others' are ludicrous positions, as is the failure to call for the rights of Donald Trump as part of one's own political commitment.

In America hysteria is usually more popular than history. I'll have to look and see if the federal Anti-riot Act, (18 U.S.C.S. § 1821), is still around, because not a few would like to see the provisions used against Donald Trump.

You Do Not Have a Right to Remain Silent Unless You Speak, Court Says

Statist reactionaries on the U.S. Supreme Court have again chipped away at the liberty of American citizens.

Justices Anthony Kennedy, Chief Justice John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. have joined forces to comprise the Soviet bloc on the Court that consistently takes a narrow view of the individual liberty of American citizens in the case, Berghuis v. Thompkins, No. 08-1470.

The Court under Chief Justice John G. Roberts Jr. has become a Constitutional wrecking ball.

Justice Sotomayor wrote the dissent, concluding: "Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent."

Mere Silence Doesn’t Invoke Miranda, Justices Say

By ADAM LIPTAK

WASHINGTON — Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

The latest case concerned Van Chester Thompkins, a Michigan man accused of shooting another man to death in 2000 outside a mall. Arrested a year later, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder. The federal appeals court in Cincinnati ruled in 2008 that his statement should have been excluded because prosecutors could not prove that Mr. Thompkins had knowingly and voluntarily waived his right to remain silent.

Justice Kennedy acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”

Indeed, the Miranda decision said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” It added that the government faced “a heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.

Justice Kennedy said that decisions since Miranda had undercut its language and that a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy’s opinion.

In her dissent, Justice Sotomayor said the majority had created a kind of paradox. “A suspect who wishes to guard his right to remain silent,” she wrote, “must, counterintuitively, speak.”

Justice Kennedy said that people who knew their rights and acted “in a manner inconsistent with their exercise” might be presumed to have waived their rights, meaning that responding to police questioning is itself an implied waiver of the right to remain silent.

Justice Sotomayor, in her dissent, said “these principles flatly contradict” earlier decisions from the court.

“At best, the court today creates an unworkable and conflicting set of presumptions,” she wrote. “At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

The better practice in the face of ambiguous responses from a suspect, Justice Sotomayor wrote, would be for the police to ask follow-up questions like, “Do you want to talk to us?”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor’s dissent.