Slate refuses 'equal time'
The South Dakota Amendment E
Piece Slate Magazine Refused to Publish
By: Gary L. Zerman*
South Dakota Judicial Accountability’s (sponsors of
“Amendment E” on the 2006 ballot) reply to Bert
Brandenburg’s (Executive Director, Justice At Stake -JAS),
Slate pieces “Rushmore to Judgment,” March
14, and “Bench-Clearing Brawl,” July 28, 2006.
wrote “And judges every where can be impeached for misconduct.”
Really? Name the last judge impeached? Federal or state. At SDJA
we say, “Impeachment’s like Haley’s Comet, it comes around
once every 76 years.” Moreover, over 99% of the
misconduct complaints against federal judges, year-in-year-out
are dismissed without discipline imposed. As Justice Kozinski (9th
Cir.) to his credit wrote, in his dissent against the dismissal
(the 3rd and final time) of the complaint against
Judge Real:"... It does not inspire confidence in the federal
judiciary when we treat our own so much better than everybody
claim it’s all about judicial independence. For a total
debunking of their claim that immunity is required for
independence, see Justice Douglas’ lone dissent in
Pierson v. Ray, 386 US 547, 558 (1967). And what
about the judges’ misconduct documented in all the recent
articles about “Judicial Junkets” and “Juice vs. Justice”?
No, the People won’t be fooled anymore. It’s about judicial
hysterical hyperbole continued in Rushmore, writing our
initiative would “… wipe out a basic doctrine called judicial
immunity that dates back to the 13th century,
protecting judges from personal liability from doing their jobs
on the cases before them. A special grand jury – essentially a
fourth branch of government – would be created to indict
judges…” He didn’t tell you the doctrine actually is
absolute judicial immunity (AJI), and it covers corrupt
and malicious judicial acts, even - eugenics. See
Stump v. Sparkman, 435 US 349 (1978), a 5/3
decision, giving Judge Stump immunity, after he illegally
ordered a 15-year-old girl sterilized; she never appeared in
court, nor had counsel or any representation, was lied to and
told she was having an appendectomy, and had no appeal – the
sterilization irreversible. Nor did he tell you the three (3)
dissenting justices were repulsed by Judge Stump’s behavior; so
were the federal appellate justices, who voted 3/0 against
immunity for Stump. The total vote in the case (district,
appellate and Supreme Court) was 6/6. Thus the doctrine of
absolute immunity is not so absolute – even among judges.
century was the only authority Brandenburg could muster in his
pieces for judicial immunity. (That era gave us the divine right
of kings, the Black Plague, beheading, drawing & quartering,
serfdom and most thought the earth was flat.) That’s the best he
can do? He omitted, like most of our critics, and the media, to
provide you our core arguments:
is no authority in our Constitution giving immunity to judges
(nor do any USSC cases on AJI ever cite any);
giving judges AJI violates the doctrine of separation of powers
- the so-called checks & balances (nor do any USSC cases mention
turns the sovereignty of We the People on its head, placing the
judiciary over, above and beyond the People, making the servant
the master; and,
has our USSC condoned eugenics?
Stump v. Sparkman.
Neither Chief Justice
Roberts, nor Justice Alito, were asked any of these questions at
their recent Senate Judiciary Committee confirmation hearings.
Checks & balances? Phooey.
Brandenburg wrote in Bench-Clearing Brawl, the “…
initiative would amend the state constitution to create a fourth
branch of government: a special grand jury to sue judges and
others for their decisions.” Here he demonstrates his
fundamental misunderstanding of our Constitution. And that is
dangerous. First, he ignores that the Constitution was designed
to limit the power of government - not the People. All power
resides in the People. Government gets its just powers from the
consent of the governed. We never gave judges immunity. Second,
he ignores that We the People are sovereign. Our Constitution
starts: “We The People.” -- NOT we the government, nor we the
judiciary. We are not a “branch” of government. We are the tree,
the trunk, the roots. We are the masters - government is our
servant, mere branches. Actually, with their dereliction to true
checks & balances, they could be termed “The Three Little
Kelo v. City of New London? That’s the 5/4 eminent
domain case, where the Kelo 5 wiped out the “public use”
clause of the 5th Amendment. Where was President
Bush? Silent. Where was Congress? Hardly a whimper. To their
credit, great dissents were written by Justices O’Connor and
Thomas. O’Connor later told an audience of ASU law students that
Kelo was “pretty scary” and “fuzzy jurisprudence.” Is
Justice O’Connor a court basher too?
Plyler v. Doe, 457 US 202 (1982), another 5/4
decision, that opened the floodgates, and left the People - to
pay the “check.”
Brandenburg concludes Brawl: “The courts that protect our
rights need their own permanent campaign to counter the war
rooms arrayed against them.” But aren’t we always told that the
judiciary is non-political, above the fray, independent? So
instead of holding miscreant judges accountable,
and cronies want the judiciary to go on a permanent campaign.
He’s admitted what we knew all along: the judiciary’s mostly
just a bunch of politicos, junkets, juice and all, just like the
other two twigs.
ask is a most basic covenant of life, something we all owe and
ask of each other: individual accountability.
People vehemently disagree with you Mr. Brandenburg. Readers
check out the blogs at
Jurisprudence Discussion. Honestly, Mr.
does not work for us. Mr.
Brandenburg please write some more pieces. And Slate please
*Gary L. Zerman
is an attorney licensed in California and Arizona. He is
counsel and a media representative for South Dakota Judicial
Accountability Committee – SDJA – a grass roots citizens
group, the sponsors of Amendment E.
Gary Zerman Email
a federal inspector general over federal judiciary.
Associated Press, 2 Lawmakers Call for Judiciary Watchdog,
by Laurie Kellman;
U.S. Newswire, Sennsenbrenner, Grassley Introduce Legislation
Establishing an Inspector General for the Judicial Branch;
5/22/06 Los Angeles Daily Journal, Criticism Mounts That
Judiciary Lacks Self Discipline – Congressman Wants An Inspector
General To Ensure Unethical Judges Are Punished, by Lawrence
LA Times, Judge [Real] May Face Sanctions, by
Metropolitan News-Enterprise, Ninth Circuit Panel Tosses
Misconduct Case Against Manuel Real, by Kenneth Ofgand;
12/6/05 Contra Costa Times (LA Times), DuPont Racketeering
Suits Reinstated, by Myron Levin; 5/7/06 LA Times,
Complaint Against Judge Has Broader Ramifications, by Henry
LA Times Editorial, Judicial Undersight.
Los Angeles Daily Journal, Chief Judge to Set Up Panel for
7-Year-Old Misconduct Case, by Amelia Hansen.
San Jose Mercury News-Associated Press, House Chairman Seek
Probe, Possible Impeachment of LA Judge, by Erica Werner;
1/19/06 Los angels Daily Journal, Congressman’s Gambit Puts
Judge on Path to Impeachment, by Lawrence Hurley;
LA Times, Impeachment Inquiry of Judge Sought, by Henry
Impeachment of federal judges.
See U.S. v. Hastings, 681 F.2d 706 (1982), at 709,
footnote 7, stating “Nine federal judges have been impeached and
brought to trial before the Senate.” That would be only nine
judges over 193 years, at that time.
complaints against federal judges–dismissed w/o discipline.
8/7/02 Las Vegas review Journal – Associated Press,
Self-policing Federal Judges Rarely Impose Penalties, by
Anne Gearan, which reported that “Of 766 ethical complaints
last year , only one resulted in a penalty… [P] In the
single case last year in which the judge was punished, the
penalty was a private censure and no details, not even the
judge’s name were released.” 1/766 is .0013!;
Los Angeles Daily Journal (same AP article, extended version),
Federal Judges Seldom Discipline Colleagues;
LA Times, Judge [Real] May Face Sanctions, by
Henry Weinstein, which reported “…More than 99% of the
complaints filed against federal judges around the country are
dismissed out of hand. The 9th Circuit Judicial
Council has reprimanded only two jurists in the last decade,
while rejecting hundreds of complaints, according to official
Alex Kozinski, 9th Circuit Court of Appeals - dissent.
10/1/05 The Recorder, 9th Circuit’s Kozinski
Blasts L.A. Judge, Majority in Discipline Case, by Justine
Scheck; 10/1/06 LA Times, L.A. Judge Avoids Sanctions by
Panel – A Judicial Council does not Punish the Federal Jurist,
Who Improperly Took Over a Bankruptcy Case – Two Judges File
blistering Dissents, by Henry Weinstein10/3/05.
Justice Kozinski’s dissent, see In re:
Complaint of Judicial Misconduct,
No. 03-89037, Order, filed
27, 2005, (9th Cir. Judicial Council).
Law.com-Associated Press, Senate Seek Legislation on Ethics
for Judicial Trips, by Jim Abrams;
Human Event, Justice by Junket, by Ken Connor; 1/20/06 NY
Times, Tripping Up on Trips: Judges Love Junkets as Much as
Tom Delay Does, by Dorothy Samuels-Editorial Observer;
LA Times Editorial, Justice and Junkets;
Rocky Mountain News, Scalia ‘Junket’ Defended, by Karen
LegalTimes.com, Political Spotlight Shine on Judicial Ethics;
4/18/06 Washington Post, Ethics Lapses by Federal Judges
Persist, Review Finds, by Joe Stephens;
Report Says Increased Amount of ‘Junket for Judges,’
law.com, Watchdog Group Singles Out ‘Junketing Judges’,
Tony Mauro; 5/3/06 USA Today, How to influence Judges;
5/08/06 Houston Chronical, Area Judge Ranked 4th
in free Trips, by Harvey Rice
3-Part Series by LA Times, titled JUICE V. JUSTICE by
staff writers Michael Goodman and William C. Rempel.. Part I,
6/8/06 In Las Vegas, Thy’re Playing With a Stacked Judicial
Deck – Some Judges Routinely Rule in Cases Involving Friends,
Former Clients and Business Associates – and if Favor of Lawyers
Who Fill their Campaign Coffers; Part II, 6/906 For a
Vegas Judge and His Friends, One Good Turn Led to Another –
James Mahan Got His Jobs on the State and Federal Benches
Through connections of Old Pal George Swarts – Things Turned Out
Well for Swarts Too; and, Part III, 6/10/06 How Some
Judges Stay Under the Radar – some Senior Judges Are Exempt From
Some Rules of Accountability – The Career of 3 Jurists Reflect
The Ethical Questions That Can Result.
articles re above Las Vegas series by LA Times: 6/14/06
Series on Las Vegas Judges renews Calls for Reform; 6/18/06
John L. Smith: Unflattering Series on Judges Unlikely to
Alter system, but Could Change Players; 6/23/06 Three
Las Vegas Judges Face High Court Review – In Response to Times
Investigation, Nevada’s Justices want the Senior Jurists to
Answer Conflict-Of-Interest and Favoritism Allegations;
6/25/06 Inquiry Sought Into Vegas Jurist – The 9th
Circuit Might Already be Planning to Act on Complaints About
Judge James C. Mahan.
Her comments referenced in this piece re the Kelo v. City of
New London, No. 04-108, decided June 28, 2005, are found in
9/20/05 The Arizona Republic – azcentral.com, O’Connor Notes
‘Scary’ Court Decision, by Joe Kamman.