Federal Defenders: 2d Circuit directs mediation re Bureau of Prisons obstructiveness of client access

Source: OTHERWISE: Federal Defenders: 2d Circuit directs mediation re Bureau of Prisons obstructiveness

2d Circuit judges John Walker, Barrington Parker, and Susan Carney write:
“the Federal Defenders have raised claims of the utmost gravity about the lawfulness of the BOP’s unilateral curtailment of pretrial detainees and others confined…a dramatic challenge is presented by COVID-19…The impact of this recent emergency on jail and prison inmates, their counsel (in the lead the Federal Defenders), the United States Attorneys, and the BOP,including the wardens and personnel…is just beginning to be felt.”
The Circuit panel directed the District Judge to appoint as a mediator “an individual with the stature, experience, and knowledge necessary to meditate this weighty dispute and ultimately facilitate the adoption of procedures for dealing with ongoing and future emergencies, including the COVID-19 outbreak.” – GWC See opinion  HERE

Judge’s Criticism Of Trump Could Spur Misconduct Review – Law360

Source: OTHERWISE: Judge’s Criticism Of Trump Could Spur Misconduct Review – Law360

Federal judge Lynn Adelman (ED WI) who wrote in the Harvard Law & Policy Review an article titled “The Roberts’ Court’s Assault on Democracy”. Adelman defended himself in an interviewed by Law 360.  Adelman  sees his article as consistent with a judge’s role of commenting on the law – “speaking writing, and teaching” about the law and legal system as Canon 4 of the Code of Conduct of United States Judges frames it.

Such bluntness evokes the 2004 remarks by Judge Guido Calabresi – former Yale Dean. Calabresi said at a conference that George W. Bush should not be re-elected, that he had become President through the “illegitimate acts of a legitimate institution”.  Calabresi later apologized for his remarks, was admonished by Chief Circuit Judge John Walker (a first cousin of Bush 42).  Walker’s admonishment was ratified by a 2005 judicial discipline report of the 2d Circuit, 404 F. 3d 668.

– GWC

Law360 (March 11, 2020, 7:21 PM EDT) — A Wisconsin federal judge mJudge’s Criticism Of Trump Could Spur Misconduct Review – Law360ay find himself in hot water after publishing a law review article critical of Republicans and the U.S. Supreme Court, with an ethics expert forecasting misconduct complaints and a former federal judge predicting the article will lead to recusal demands.

While the code of ethics for federal judges allows for public discussion of the law, it prohibits political activity, especially when it deals with candidates for office. U.S. District Judge Lynn S. Adelman’s article said conservative justices are “undermining democracy” while President Donald Trump’s “temperament is that of an autocrat,” Republicans are “focused on serving the wealthy,” and GOP senators display “zealous partisanship [reminiscent of] those fervent defenders of slavery who pushed the South into the Civil War.”

“A judge is making public remarks that can be construed as opposing a sitting president who is running for re-election,” said Arthur Hellman, a University of Pittsburgh law professor who has advised Congress on judicial ethics. “The whole theory of judicial impartiality is not that judges have no views on political and social issues, but that they can separate those personal views from what they do as judges. If judges go out in public and start talking about their political and social views, I think people will legitimately wonder, can they separate them?”

Judge Adelman stood by his article in an interview with Law360 Wednesday.

“Judges are encouraged to talk about current legal issues and problems,” he said, adding that it is “certainly reasonable and important to talk about” Supreme Court decisions.

Nancy Gertner, a former federal judge in Massachusetts who teaches at Harvard Law School, told Law360 that such commentary is part of academic debate.

“You can speak critically about the administration of justice,” she said. “There are many of us who are law professors who have written critically about [a] decision. This is within the zone of what it’s appropriate for a judge to talk about.”

 

Trump should keep hands off courts – Philadelphia, Pennsylvania Bar Associations

Source: OTHERWISE: Trump should keep hands off courts – Philadelphia, Pennsylvania Bar

“I just don’t know how they cannot recuse themselves for anything Trump or Trump-related” – Donald Trump speaking of Justices Sonia Sotomayor and Ruth Ginsburg

Donald J. Trump

@realDonaldTrump

In restrained but firm language two leading bar associations have called attention to Donald Trump’s attacks on the judicial system  The Philadelphia Bar declared in a recent statement “Recently, we have seen a course of conduct, including communications meant to exert undue influence on the judiciary, that seems intent on undermining the rule of law and disrupting the system of checks and balances. Such attacks are dangerous in the extreme. We cannot allow them to continue.
“We call for an end to these unwarranted attacks on the judiciary and for all Americans to speak up in defense of the Constitution and our democratic principles.”
In similarly constrained language the Pennsylvania Bar Association declared:
“The integrity of our system of justice requires that this equal branch of government be free from outside influence. In particular, we must assure that the independence of the judiciary is always respected and never diminished.”

What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

Source: OTHERWISE: What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

Gabriel (Jack) Chin at Scotus blog has a good discussion of U.S. v. Sineneng-Smith – a challenge to the Immigration and Nationalities Act which in Section 1324 presents a risk of criminal prosecution to lawyers, advocates, and families of people without a legal right to be in the U.S.

***Put simply, the issue is this. 8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.”
Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?***

The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

The President’s oath of office is to the laws and constitution.  He/she is not the sole receptacle of the power of the executive branch of the executive branch of the United States government.  Attorney General Barr has embraced the opposite view.  But Bernadette Meyler (Stanford Law) has amplifed the argument tellingly stated by Fordham law profs Andrew Kent, Jed Shugerman, and Ethan Leib.

Source: OTHERWISE: The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

If you haven’t looked at this discussion I recommend that you take a good luck at this ongoing and very accessible discussion which began and continues in the pages of the Harvard Law Review.  As officers of the court we are acutely aware of the limits of our authority – and of our duty of independence – bred of our oath to uphold the law.  But by the fulsome embrace of the unitary executive theory which places all executive authority in a single person – not the office, but the person of the President – Attorney General Barr abdicates his duty.  In his own words, he works under “presidential supervision” rather than as a protector of the people as sovereign. – gwc