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The So-Called Rule of Law

In the aftermath of what appears to be a not-well-thought-out xenophobic executive order banning—or pausing, or just plain being confused, which goes back to the idea that it was not-well-thought-out—anyway, in the aftermath, a number of judges have issued stays. Thus, the Donald is learning that executive orders notwithstanding, He’s not—not yet, anyway—the Supreme Ruler in the sense that say, Putin, or Kim Jong-un, are Supreme Rulers of their respective disreputable countries.

And His predictable response?

The probably also predictable response of the twitters is to point out that he’s not a so-called judge, anymore than He Who Believes Himself King is a so-called President; that is, in the same sense things became trumped up, and the Donald is actually President, so, too, the judge is actually a judge.

And there is, of course, celebration.

The Constitution prevailed today.

This is newsworthy because, on any given day, contrary to the hopes, dreams, and desires of so many lawyers, and ordinary citizens, the Constitution does not usually prevail. As Scott Greenfield[1] noted in “Will The Crime Of Hallways Finally Be Over?”:

So judges were outraged by this flagrant violation of constitutional rights? Nah. Not one.* Not a single judge took issue with it. It’s not that the unconstitutionality of seizing someone because a landlord signed an affidavit forfeiting other people’s rights (no, you can’t, but yes, they did) wasn’t argued. It was. And it was rejected. Suppression denied.

In the footnote denoted by the asterisk, Scott adds:

Non-lawyers and academics ponder where the appellate decisions are that provide the basis for these programs. Trench lawyers shake their heads. These cases never made it to appeal, as they were pleaded out quickly to short-time sentences and the defendants rarely had the funds or desire to fight cases on appeal.

But that’s really just fluff. Appellate courts are only slightly more willing to honor the Constitution, and then usually only because sometimes they write out their reasoning. And reasoning that the Constitution doesn’t apply when it clearly does takes a bit of creative writing.

Not that appellate judges don’t enjoy a bit of creative writing from time to time. It’s just that unless they’re going to go with their infamous postcard denial, some of us would occasionally see that the Emperors have no clothes.

Another small exchange of twits evolving out of these thoughts is what finally caused me to write this blog post.[2] Twitter is a piss-poor environment for any decent explication of one’s thoughts. For me, anyway, I end up writing something that is too long for a single twit. So I can go back and try to re-word it, or cut words, or try to guesstimate how many twits I’ll need to get it all out, and insert the “1/3, 2/3, 3/3” notation. Nearly always I end up with something less satisfying—and readily subject to being picked apart by pithier writers than me.[3]


At some point in the discussion, I said,

And, of course, it is absolutely conceivable. It’s just not often the case. Further, my saying that when the law does not matter the judge does, or agreeing that when the judge matters the law does not—and I agree with both statements—well, that does not necessarily negate the possibility that “whence came the appointment” does not matter. These are all different things.

Frankly, I think the judge always matters. I think this primarily because judges are people, and despite our best hopes, desires, aspirations, or whatever else you want to call it, people are not driven by emotionless logic.If it were all about logic, books on advocacy and persuasion would not talk about the importance of things like getting people to like you—what difference to logic does it make whether you are a nice guy, or an asshole? The judge always matters because even if the law matters to the particular judge, that is not all that is going to drive his decisions. And much of what drives him is going to be unknown to him, and possibly unknowable to those before him.

Don’t take my word for it: read a little on the neuroscience of decision-making from people like Jan Gläscher.

As much as we’d like “the law” to be decided “logically”—whatever that really means—the fact is that the law is a mechanism for regulating human behavior. Someone—a bunch of someones, actually, including people who vote, legislators, and people who interpret what these others intended—make decisions about what behaviors to regulate, the degree to which to regulate them, and what should happen when actors do not behave in accordance with the regulatory scheme (i.e., the law). Our arguments for many (most? all?) laws are ultimately based on our moral views. Punishment—meted out by judges—involves making moral decisions. And,

moral decisions, compared to non-moral decisions, engage emotions, especially when one is required to consider the consequences of one’s actions for another’s well-being.[4]

I can’t think of many things that involve the well-being of others more than sentencing. There will be consequences to the well-being of victims, families of victims, defendants, families of defendants, as well as possibly that of prosecutors, police officers, other witnesses; all impacted by the decision of the judge.

And not every judge has the same proclivity on a particular issue as another. Lawyers in Fresno, where my law office is located, know that you don’t want certain judges hearing theft cases, and you don’t want certain judges hearing sexual assault cases, and so on. Some judges are sticklers for rules, including rules of procedure and evidence, while others are not. In California, Penal Code section 170.6 exists at least partly in recognition that the judge sometimes matters.

It is a separate question whether “whence the appointment came” matters. As a starting point, I realize—since I started writing this, and have continued popping in and out of Twitter—that the question of whether or not “whence the appointment came” (in the context of the discussion, whether it matters that the appointment was made by a Democrat, or a Republican, and possibly whether it matters that the appointment was done by a particular Democrat, or Republican) was vague and ambiguous in the Twitter discussion. Two twits made this clear.

On trying to make sense of this, I realize that one could take a statement that it mattered “whence the appointment came” to mean that whether or not one should be bound by a judge’s decision depends on who appointed the judge, or it could mean that how the judge rules on the legal issue depends on “whence the appointment came.” As to the latter proposition, even in our current “rule of man, and not of law” system, that’s bullshit. Even we have not (yet) gone so far as to say that we will ignore a judge’s ruling depending on who appointed him. As to the former proposition, while I think that “whence the appointment came” is sometimes an indicator of which way you might expect a judge to rule, it’s absolutely not foolproof.

In any event, the politicization of judicial appointments has had an impact on the courts, including on matters of criminal law. And even those who deny it affirm it.

Is Gorsuch the dream justice for criminal defense? Of course not, but then, neither was Sotomayor, Kagan or, for that matter, the Notorious RBG, who is adored when she’s not being hated. But nobody suspected that William O. Douglas or Thurgood Marshall would be resurrected to be Nino’s replacement, so no tears are being shed.

The range of difference may be narrower—Gorsuch versus Sotomayer, Kagan, or NRBG—than in the days when we could have a Douglas, or Marshall. But politics has always determined the future of our courts because “whence the appointment came” matters in the sense that a particular party is going to be responsible for placing judges on the bench. They’ve always done this based on whether the candidates for the position favor, or are inimical to, their party’s views on what courts should do.

But how does all this factor in to the issue of whether the judge matters, or the law matters?

It’s because the rule of law is dead. To the extent the rule of law ever did live in the United States, it has been dead for some time. Scott Greenfield’s post I quoted from above is just one of many stories that could prove that point. As Scott stated,

Eventually, the program [that had driven judges to ignore constitutional violations by cops] began to fall out of favor, and some judges started refusing to abide the program.

In cities around the United States, the same thing has happened, and continues to happen. I’ve said this before: I’ve lost track of the number of times people call, or come to my office, wanting to hire me because the cops came into their homes, without warrants, and searched for something, or someone. After almost any given gang-related crime, in particular, Fresnans will hear on the news about the police having apprehended—usually quite quickly—the gang members who allegedly perpetrated horrendous crimes.[5] What you don’t hear is how the police apprehended them. It wasn’t a piece of brilliant police work: too often they did it by tossing a neighborhood. In other words, door-to-door searches, without warrants, which are per seunconstitutional. But there is nothing I can do for people who come to me with these complaints: I’m a criminal defense lawyer. I don’t even know if a civil rights lawyer could do anything about it: who’s going to entertain a lawsuit for cops coming into a poor brown or black person’s home, searching, making no arrests, and then leaving? I sure haven’t seen it.

No, the rule of law is dead. In too many cases, we have to rely upon the luck of the draw regarding judges—some will favor a particular program, some will not, and programs themselves will come in and out of judicial favor. To that extent, I say to Mark Bennett, yes, there’s a certain amount of relying upon the dice. Is it totally a throw of the die on judges? No.

Dice matter with regard to criminal defense lawyers, too, by the way. Some have more persuasive ability of than others. But as I’m now approaching 2200 words, I think this post has gone on long enough.

But one last thing: I do worry that Trump is going to take this problem of “who the judge is” to a whole new level. He’s already shown a willingness to criticize a judge based on ethnicity. And now we have Him referring to another member of the judiciary as a “so-called judge.”

Which, when you think about it, is a perfect fit for—and a further enhancement for—the so-called rule of law.

  1. Yeah, don’t expect that many of my posts will not mention him, since I read his blog almost every day, and when I don’t get to, I go back to read what I missed in a binge-read. Sometimes he reads my blog, too, so it evens out. Or, it would, if I wrote more. [↩]
  2. As I write this post, that small exchange continues to grow. [↩]
  3. Though sometimes it’s just a disagreement. And, of course, I’m always right. And they’re always right. (That is kind of inherent in the idea of “disagreement,” isn’t it?) [↩]
  4. Naqvi, et al, “The Role of Emotion in Decision Making: A Cognitive Neuroscience Perspective” found at,last visited 2/4/2017. [↩]
  5. They’re always horrendous, according to the reports, regardless of what they are. [↩]