Yesterday, in response to this post on the filibuster and this post on Arthur Andersen, a certain individual excoriated me in the comments, stating:
You amaze me with your hypocrisy. Here we have a judge who made a completely false interpretation of the law, gave bad jury instructions, and it ended with the destruction of one of America’s oldest accounting firms, sending thousands into unemployment.
And yet, per you, it’s wrong for Republicans to try to get strict constructionists onto the appeals court?
Now, if there were instances of AA breaking the law as you seem to believe, why was this particular case tried, when it utterly hinges on the bad jury instructions? I’m not trying to absolve either Enron or AA of criminal activity, but it’s ridiculous that one effed-up judge can wreak that much havoc with a stinking interpretation.
Don’t give me that “I know more than you do” answer, either. If there are fireworks in the offing, then hit us with them. We’re adults.
The activist judge who created the flawed jury instructions, which certainly helped to create an absolutely certain guilty verdict against Arthur Andersen, was one US District Judge Melinda Harmon:
The New Orleans-based 5th U.S. Circuit Court of Appeals affirmed the June 2002 Houston jury verdict and the rulings of U.S. District Judge Melinda Harmon.
In October 2002, Harmon sentenced Andersen to the maximum: a $500,000 fine and five years’ probation. But well before that time, the charges decimated the once-powerful Big Five firm.
Some background on Harmon:
According to a memo, Judge Melinda Harmon, a Republican appointee, “does not like women to wear pants in court.”
Harmon’s ruling was upheld by the 5th U.S. Circuit Court of Appeals:
It was a unanimous decision by a three-judge panel whose other members are Judges Thomas Reavley and Fortunato Benavides.
Higginbotham, a Dallas-based jurist, noted the import on the decision, saying, “Today we decide one of the many cases arising from the rubble of Enron Corp., which fell from its lofty corporate perch in 2001 wreaking financial ruin upon thousands of investors, creditors and employees.
“Like a falling giant redwood, it took down with it many members of its supporting cast.”
The opinion ruled Harmon did not substantially err in her rulings on evidence, jury instruction or the behavior of prosecutors.
“The conviction of Arthur Andersen was an important milestone in promoting responsible corporate behavior and respect for the law,” said Andrew Weissmann, director of the Enron Task Force and lead prosecutor on the Arthur Andersen trial.
Some background on Judge Patrick Higginbotham:
In 1964 he went into private practice with the Dallas, Texas firm of Coke & Coke, where his work was focused upon trials and appeals, with one stint as a special prosecutor. In 1975 President Gerald Ford appointed him to the United States District Court for the Northern District of Texas, making him the youngest sitting federal judge in the United States. In 1982 he was appointed to the U.S. Court of Appeals for the Fifth Circuit by President Ronald Reagan, and continues to serve on that court.
Clearly, something must be done about all these damned liberal activist judges.
In the interest of full disclosure, Thomas Reavley and Fortunato Benavides are Carter and Clinton appointees, respectively.
This petty war on judges, from both sides of the aisle, but most recently from the over-wrought cries of judicial activism from my party, has just got to stop. The law is not always clear cut, and there will always be instances when reasonable people disagree on certain decisions, and there will always be instances when Judges get it wrong.
However, attempting to undermine faith in the Court system simply to advance a narrow partisan agenda is cynical, misguided, and wrong for America. We saw this with the smearing of all the Florida Judges in the Schiavo affair, many of whom were conservative appointees, and it simply has to stop.
And, like Forrest Gump, that is all I have got to say about that.
KC
That’s just it, John, these attacks on judges aren’t really about the judges themselves, but about attacking our court system. It’s not unlike *some* of the attacks on the media. The question is is what’s going to happen if the looney right is successful in undermining public confidence in the court system? They hold the cards now, they have most of the power, what kind of court system do they want to replace the current one with? I think any honest Republican ought ask him/herself these questions when they go to the polls in 2006.
Stormy70
I find this selective outrage rich, considering the Left has accused the highest court in the land of “installing” George Bush in 2000. Ooooh, the right is attacking judges. Seems to me the courts have always had someone in this country pissed off at them at any one time. I can speak out against any judge I want to, and so can you. It doesn’t mean the courts will fall tomorrow.
Kimmitt
That’s the difference — the Left has attacked individual judges, citing poor performance. The Right attacks the concept of an independent judiciary. One of these things is compatible with a liberal democracy and the other is not.
smijer
You said it all. Well said, as usual.
brenda
Conservatives, in general, are very emotional and I’ve never seen an argument from them that made use of what some folks like to call…reason or logic. Very poor arguments.
and to keeps things equal:
Liberals on the hand, tend to be a bit sumg and elitist.
Each side projects their own fears onto the other. It’s a classic defense mechanism. The Bibles advice about not removing anothers splinter from their eye before removing the log from your own comes to mind here.
I belong to neither. I make up my own mind. I like it that way. :)
vnjagvet
Real good post, John.
Note, too that the decision of the SCOTUS was 9-0 and written by the Chief Justice.
Where’s the outrage?
I believe to some extent, the passions of the moment influenced both the trial judge and the appellate panel.
Thankfully, someone actually read the statute under which the conviction was obtained and
even interpreted it with common sense.
Here’s one conservative lawyer, with 40+ years of trial and appellate practice before state, federal, military, administrative and private tribunals throughout the country who thinks the inflated rhetoric at both ends of the political spectrum reveals ignorance and bombast rather than penetrating social commentary.
Keep up the good work, John. You are a good antidote to that kind of thinking.
Fledermaus
“does not like women to wear pants in court.”
A sitting trial judge in Washington was defeated a couple of years back because she lit into a female attorney who had the audacity to show up for court in a pantsuit rather than a skirt.
Al Maviva
Most judges south of Pennsylvania or so – at least the ones I’ve practiced in front of – expect conservative business dress from attorneys, that means a suit and no slacks for women. Moreso at the federal level than the state, although state superior court and higher level judges in the deep south are sticklers for decorum, though one could get away with a rather casual linen or seersucker suit if the weather was hot enough out. In fact, the judge I clerked for – a Democrat through and through – insisted on skirts & suits. He also sent some stupid sumbitch to jail for a few days, for showing up in his court in a baseball cap, and not taking it off when ordered to. I can’t say I was upset – the law only works when we all agree to respect it, and its officers, and anybody with a shred of manners knows you take your cover off when indoors, except when under arms.
Bruce
You are a leftist at heart. Clearly you think conservative judges are bad and democrats are right ot block them. You are an idiot.
Scott Chaffin
Hate to burst your bubble, but I didn’t say liberal activist judges. Stop putting words in my mouth.
And stop ascribing motives. It’s not a war on judges, so much as a war on bad judicial “interpretation.” Such as this:
jurors were told they could convict Andersen even if they found that the accounting firm “honestly and sincerely believed that its conduct was lawful.”
Convict even if lawful? I don’t care who appointed a judge who could say something like that. What the hell difference could the party of their appointer possibly make? Unless, of course, you’re purely partisan. Which, as I’ve made clear to you before, I ain’t.
I’d go further into the why it’s not wrong for a mere citizen to challenge the judiciary on their interpretations, but why bother? You can just make something else up that I said and launch a tirade against that.
DecidedFenceSitter
Actually, Scott, that’s convict even if they thought the conduct was lawful.
Or for an analogy, which people will probably delight in shredding:
Driving down a road at 55 is illegal if speed limit is 45, even if you THINK that the speed limit is 55.
John Cole
Scott-
I’d go further into the why it’s not wrong for a mere citizen to challenge the judiciary on their interpretations, but why bother?
Clearly I don’t think it is wrong for individual citizens to criticize decisions. I did so in both topics on this matter.
John Cole 1- Strawman 0
You can just make something else up that I said and launch a tirade against that.
I posted your whol damned comment, reacted to it, and I made shit up.
John Cole 2- Strawman 0
And what did you actually say:
You amaze me with your hypocrisy. Here we have a judge who made a completely false interpretation of the law, gave bad jury instructions, and it ended with the destruction of one of America’s oldest accounting firms, sending thousands into unemployment.
And yet, per you, it’s wrong for Republicans to try to get strict constructionists onto the appeals court?
Now, back to your original salvo-
How am I being a hypocrite? You are the one who has been hysterical about judges since Schiavo, and now, all of a sudden, we are supposed to pretend you are just ‘exercising your right to criticize decisions?’
I have no problem with you wanting strict constructionists on the court. But when strict constructionists apply the law and you don;t like it, you have a hissy fit. See Schiavo, Terry.
You guys aren’t fooling anyone but yourselves on this.
And Bruce:
You are a leftist at heart. Clearly you think conservative judges are bad and democrats are right ot block them. You are an idiot.
Hunh?
Losing Faith
“I find this selective outrage rich, considering the Left has accused the highest court in the land of “installing” George Bush in 2000.”
What? They DID install him. The election wasn’t complete. Look how he’s noted in the record. He was literally placed by SCOTUS. There’s no lie here. It’s just the procedure that took place due to the crap in FL.
Ben Lange
Saying she’s a Republican apointee doen’t mean she’s conservative.
After all, she didn’t get filibustered.
Rick
They DID install him. The election wasn’t complete. Look how he’s noted in the record. He was literally placed by SCOTUS. There’s no lie here. It’s just the procedure that took place due to the crap in FL.
I heard that there’s a growing trend in book pubishing for “alternative history.” Now I’m seeing the market it serves.
Cordially…
Kimmitt
How’s that Washington State recount suit coming along?
Rick
Recount was over months ago.
Now it’s a court case. Surprising that some judges there allowed it to get into the courtroom, because Ellen Sauerbray in MD had a strong case that the ’94 gubernatorial election was heisted, but her suit was turned back.
It’s prolly hopeless, because ordering a new vote remains a pretty drastic step, even with the extremely suspicious discovery of King County ballots, and all the fraudulent votes that have been reported by even the Seattle P-I. Hey! Stopped clock, huh?
Or rather, was *is* your point.
Cordially…
Scott Chaffin
Strawman 1: my criticism garners this description: attempting to undermine faith in the Court system simply to advance a narrow partisan agenda is cynical, misguided, and wrong for America. But your criticism is just and proper, of course. Spare me.
Strawman 2: where did I say “damned liberal activist judges”? Those are your words. You use my entire comment to somehow come to that conclusion. It’s a mystery to me how you do it, but you do it.
Bad judges have been a bugaboo of mine for a long time, long before Schiavo. Just because you weren’t aware of it doesn’t mean it wasn’t so. Unless you’re somehow omniscient, which is what I expect to hear next.
Losing Faith
Rick,
Do a little research. I followed closely at the time and have researched plenty since. That is what happened. I don’t understand why you think it’s “alternative history.” The count was never OFFICIALLY finished. How else would he have become president if our election didn’t complete?
Losing Faith
Rick,
Do a little research. I followed closely at the time and have researched plenty since. That is what happened. I don’t understand why you think it’s “alternative history.” The count was never OFFICIALLY finished. How else would he have become president if our election didn’t complete?
Losing Faith
Yikes, sorry for the double everyone.
Rick
Faith,
Gore trailed in FL all evening. At the end, he was behind, but close enough to trigger an automatic recount.
He closed the gap in that event, but still trailed. He got his selected-counties recount(s), and still trailed.
He may have wanted to keep counting (except military absentee votes) until he could somehow nose ahead, but statutory deadlines approached (FL legislature voting) or past (Sec’y State Katherine Harris’ certification of the vote).
All tallies showed Gore was edged out. The “literally placed there by SCOTUS” is alternative history.
And one shouldn’t be too critical of SCOTUS; remember, to criticize judges is to wink at violence against them. Check with Tom DeLay and Sen. Coryn. Just isn’t done.
Cordially…
Losing Faith
I don’t understand what the issue is here. I’m not making a judgement as to whether or not Bush WOULD have won had the vote completed. The vote did NOT complete (contrary to you stating Gore’s selective recount completed) and Bush was placed by SCOTUS. When did I make any sort of judgement? The people arguing against me here are assuming I’m saying something I’m not. I’m just describing the process.
Losing Faith
DOH! Let me correct myself. That was all very confusing with the various recounts and cancelled recounts. Gore’s original recount request was completed, but it was not the end of the battle at all.
Losing Faith
Oh boy, yeah, even re-re-re-reviewing this, it’s confusing. The recounts did not complete.
http://archives.cnn.com/2000/ALLPOLITICS/stories/12/13/got.here/
Losing Faith
Ugh, I hate being wrong. I could have SWORN I saw information that, officially, Bush was placed by the SCOTUS. For the life of me I can’t find it now. I have to rescind that. So, it appears I was right on the recount and wrong on the placing. The SCOTUS accepted the count that was certified by Harris.